Entry Journal

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dd2412

Business Finance

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Read chapter 3 and 4 through powerpoint. Write an entry journal (2 paragraph~ 1 page). The purpose of the Journal is to help you understand weekly readings in light of current events. Each week, you should find one news article related to the weekly readings. Your journal entry should summarize your article, how it relates to the weekly text materials, and why you found it interesting. You should then attach the news article to your entry.

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MILLER © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. ◆ 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”). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3 ◆ Stages of Litigation. ▪ Pretrial. ▪ Trial. ▪ Posttrial.→ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5 ◆ Consulting an Attorney. ▪ Generally, the first step. ▪ Types of Attorneys’ Fees (hourly vs. contingent fee). ▪ Settlement Considerations. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6 ◆ Pleadings. ◆ Discovery. ◆ Conference ◆ Jury Selection. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8 ◆ Plaintiff’s Complaint. Court acquires jurisdiction over subject matter and Plaintiff. ▪ Facts. ▪ Prayer for Court Relief. ▪ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9 ◆ Service of Process. ▪ ▪ Plaintiff serves Defendant with Complaint and Summons. Default Judgment for Plaintiff, if Defendant does not Answer. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10 ◆ 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11 ◆ 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12 ◆ 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13 ◆ Defendant’s Response. ▪ Makes General Denial. ▪ May move for Change of Venue. ▪ May allege Affirmative Defenses. → ▪ May assert Counterclaims against Plaintiff. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14 ◆ Defendant’s Response. ▪ Affirmative Defense: burden is on defendant to introduce proof. ▪ Counterclaims: defendant sues plaintiff, and plaintiff answers. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15 ◆ Dismissals and Pre-Trial Judgments. ▪ Many lawsuits never go to trial. ▪ Perhaps there is a settlement. ▪ Perhaps the case was dismissed.→ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16 ◆ 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.→ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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.→ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18 ◆ Dismissals and Pre-Trial Judgments. ▪ Motion to Dismiss. • CASE 3.1 ESPRESSO DISPOSITION CORP. 1 V. SANTANA SALES & MARKETING GROUP, INC. (2013). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19 ◆ Dismissals and Pre-Trial Judgments. ▪ Motion for Judgment on the Pleadings: court decides. ▪ Motion for Summary Judgment: no genuine issue of material fact. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 ◆ 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21 ◆ ◆ ◆ ◆ ◆ ◆ ◆ 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23 ◆ Discovery is the process by which parties obtain information from the opposing party prior to trial. ▪ CASE 3.2 BLANKENSHIP V. COLLIER (2010). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24 ◆ Discovery Rules. ◆ Depositions: sworn testimony recorded and transcribed by court official (court reporter). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25 ◆ Interrogatories: written questions and answers under oath. ◆ Requests for Admissions: admission is considered a “fact” for trial. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26 ◆ Requests for Documents, Objects, and Entry Upon Land. ◆ Requests for Examination. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27 ◆ E-Discovery Procedures. ▪ FRCP deals specifically with preservation, retrieval, and production of electronic data. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29 ◆ After discovery is completed meet with trial judge. ◆ Explore possibility of settlement, or identify issues that are in dispute for jury to consider. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 30 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31 ◆ Right to Jury Trial is guaranteed by Seventh Amendment to U.S. Constitution. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32 ◆ Jury Selection. ▪ Voir Dire. ▪ Jurors can be dismissed peremptorily (no reason or for cause (bias). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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.’ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 37 ◆ Closing Arguments, Jury Instructions, and Verdict. ▪ Jury Instructions: • After closing arguments, the judge instructs the jury on the law of the case. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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).→ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 45 ◆ Appellate Review. ▪ Appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 47 ◆ Availability of Assets. ▪ Usually a plaintiff looks to see if the defendant has sufficient assets before the suit is filed. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 48 MILLER © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. ◆ Before the Revolutionary War, States wanted a confederation with weak national government and very limited powers. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2 ◆ After the war ended, the States voted to create a new, federal government that shared power with States. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3 ◆ Federal Form of Government:  Shares power between national and state governments.  National government has limited, enumerated powers delegated from States. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4 ◆ Regulatory Powers of States.  10th Amendment.  Police Powers: order, safety, morals. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7 ◆ Separation of Powers.  Federal government provides checks and balances: • Legislative (Congress): Creates laws. • Executive (President/Agencies): Enforce laws. • Judicial (Courts): Interpret laws. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8 ◆ The Commerce Clause.  Power to regulate interstate commerce defined in Gibbons v. Ogden (1824): activities that “substantially affect interstate commerce.” → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9 ◆ The Commerce Clause.  Expansion of Powers: • In 1942, Supreme Court expanded commerce clause to purely intrastate businesses (Wickard v. Filburn). → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10 ◆ The Commerce Clause.  Expansion of Powers: • In 1964, Supreme Court prohibited racial discrimination in interstate commerce (Heart of Atlanta Motel v. U.S.). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11 ◆ 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). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12 ◆ 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). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13 ◆ The “Dormant” Commerce Clause.  Generally, federal government has exclusive authority to regulate commerce that substantially affects trade among the states. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14 ◆ The “Dormant” Commerce Clause.  States possess inherent police powers to regulate health, safety, public order, morals and general welfare. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15 ◆ The “Dormant” Commerce Clause.  However, state police powers or regulations that substantially interfere with interstate commerce will be struck down. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16 ◆ The “Dormant” Commerce Clause.  CASE 4.1 FAMILY WINEMAKERS OF CALIFORNIA V. JENKINS (2010). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17 ◆ 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.” → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18 ◆ The Supremacy Clause and Federal Preemption.  In case of direct conflict between state and federal law, state law is invalid. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19 ◆ The Supremacy Clause and Federal Preemption.  A valid federal statute or regulation will take precedence over a conflicting state or local statute. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 ◆ The Supremacy Clause and Federal Preemption.  Preemption occurs when Congress chooses to act exclusively when national and state governments have concurrent powers © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24 ◆ Limits on Federal and State Actions.  Originally the Bill of Rights was a limit on the national government’s powers. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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.→ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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.→ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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.→ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a 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). © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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”. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 35 ◆ Freedom of Religion. ▪ First Amendment may not “establish” a religion or prohibit the “free exercise” of religion.→ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 36 ◆ Freedom of Religion. ▪ The Establishment Clause: prohibits government from establishing a state-sponsored religion, or passing laws that favor one over the other. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 41 ◆ Fifth Amendment. Guarantees no person can be compelled to testify against himself in a criminal proceeding. ▪ Does not apply to corporations or partnerships. ▪ © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 42 ◆ Due Process. ▪ Procedural Due Process: any government decision to take life, liberty or property must be fair. –Requires: Notice and Fair Hearing. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 44 ◆ Equal Protection. – Government must treat similarly situated individuals (or businesses) in the same manner. → © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 45 ◆ Equal Protection. – Courts apply different tests: • Strict Scrutiny – fundamental rights. • Intermediate scrutiny. • “Rational Basis” Test -economic rights. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 48
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Running head: GOVERNMENT SURVEILLANCE AND THE CONSTITUTION

Entry Journal: Government Surveillance, the Constitution, and Privacy Laws
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GOVERNMENT SURVEILLANCE AND THE CONSTITUTION

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Entry Journal: Government Surveillance, the Constitution, and Privacy Laws
Government surveillance of social media has in recent years raised serious concerns
when it comes to free speech and privacy. In the U.S and in other foreign countries, the laws that
touch on regulation can prove to be quite challenging. In recent years, the government has
targeted the tech firms s...


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