Law Exam 3

emmerated powers

explicit authorities granted to congress by the consitution

commerce clause

gives congress the power to regulate trade and business with foreign nations, states, and tribes

wickard v filburn

a farmer who got in trouble for producing more crops than was allowed. congress claimed they can regulate due to the commerce clause since it had impacts on the economy.

time period of the greatest reign of commerce power

1942-1995

during what big event was commerce power heavy?

during the civil rights movement

two examples of commerce clause during civil rights movement

1) whites only motel

2) BBQ restaurant

what changed in the 90s regarding commerce law

the supreme court started chipping away at the power and listed 3 ways congress has power over commerce law

3 justifications for commerce law

1) channels of commerce

2) movement of things or people between states

3) economic action

2 cases that helped establish the 3 rules of commerce law

1) lopez and the g*n free zone

2) morrison and violence against women

what are the two objectives of taxes

1) to raise money (chief goal)

2) discourage a purchase (sin tax)

one of congress’s strongest power

taxing

greatest case example of taxing power

affordable care act

made the penalty for not having insurance a “tax”

what department does taxing belong to

legislative

state taxing cant…

discriminate against interstate commerce

2 rules for state taxing

1) must have a substaintial connection to the state

2) can’t provide protection of instate business at the expense of out of state business

protectionism

protecting in state businesses at the expense of out of state through taxes

1st ammendment

free speech

business’s can or can’t suppress free speech

can

gov can not

2 issues concerning business and free speech

1) political speech

2) commerical speech

political speech (business)

business’s have the right to speak out on political issues and ads

when can the gov regulate political speech

if it is a reasonable and content neutral restriction on the method not content

commerical speech

speech aimed at economic choices

central hudson case

1973 oil crisis

the gov said utility companies could not advertise

central hudson test 2 parts (ads)

1) speech can not be false or misleading

2) there must be substaintial gov interest in regulating the ads

2nd ammendment

right to bear arms

when can business regulate firearms

on company property

state laws can do what in terms of constitutional rights

expand but not restrict

4th ammendment

search and warrents

judicial warrent

search warrent signed off by a judge

administrative warrent

signed by an agency official that a civil violation has occurred

only public location

plain view doctrine

objects falling in the view of an officer can be searched and siezedh

when is a warentless search okay

for a closely related business

New York vs Burger

junkyard was searched and illegal activty was found without a warrent

“on notice”

condition in the operating agreement that they can be searched without a warrent

exclusionary rule

any evidence that is found when the gov has violated the 4th ammendment can not be used in court

5th ammendment

no person can be compelled to be a witness against themself in a criminal case

adverse inference

if someone pleads the 5th, the jury can not make an assumption based off of that decision

how can witnesses use the 5th

they can pick and choose when they decide to use it

when can the 5th be used in a civil suit

when answering the question could open them to a criminal case

when can adverse inference be used

if a civil defendant uses the 5th

can business plead the 5th

no

entities are a creature of the state so the gov can demand information

what does the 5th apply to

individual testimony not documents

4 types of non constiutional testimonial privileges

1) Spousal

2) Attorney-client

3) Doctor patient

4) Priest- Penitent

eminent domain

gov ability to take property with just compensation

when do gov typically need to take land

for public use or utility needs

2 things that can happen when a gov tries to take land

1) the landowner sells to the gov

2) the gov takes the land and a judge decides the money that is paid

kelo case

the gov needed Kelo’s land, but wanted to sell it to a private company to build a research complex

significance of kelo case

many states took action to prevent the gov from taking land for private use

regulatory taking

when the gov doesn’t physically take property, but it changes the value of the property

typically zoning

lucas vs SC coastal council

Lucas had bought the land previously to build houses, but the gov changed the zoning to non residential

legal non conforming use

if a business was on the property before zoning was changed, they can remain there but not change the property in any way

crime

an act that is an offense against a state or federal government

crimes are acts against…

the government

who can bring a criminal case to court

the government

2 basic elements of crime

1) the defendent committed an illegal act

2) the defendent possessed a criminal intent

actus reus

guilty act

mens rea

guilty mind

larceny

theft

intent in mens rea

intent to commit a crime such as killing

knowing in mens rea

knowing that something was illegal such as buying something that was stolen

recklessness in mens rea

without intent but did an act that disregarded the safety of others

malice

intent to kill

strict liability crimes

crimes that do not require a guilty mind to convict

burden of proof

gov must prove all elements (AR and MR) beyond a reasonable doubt

beyond a reasonable doubt

the highest level of proof

the evidence is so compelling that a rational person has no logical reason to doubt the defendant is guilty

prosecutorial discretion

the government has the ability to decide how to pursue justice in a case that has an unfair or unwanted outcome

double jeopardy

under the 5th you can not be tried again for the same charges

dual sovereignty doctrine

double jeopardy doesn’t extend vertically or horizontally

vertical dual soverignty

if you were tried in state you can still be tried federally and vice versa

horizontal dual soverignty

if you were tried in one state you can still be tried in another

white collar crimes

non violent business crimes to gain money or advantages

bribery

taking money or something of value to influence actions or decisions

quid pro quo

this for that

illegal kickback

promising a portion of the money gained from bribery

SC statues on bribery cover 2 areas

1) gov officials

2) sports officials or coaches

embezzlement

someone is trusted with assets and they take or use them for personal use

3 types of embezzlement

1) stealing

2) siphoning/ skimming

3) payroll/ overtime

ponzi schemes

someone creates a fake investment opportunity and gets people to invest and take their money

insider trading

someone trades a security (stock) while posessing non public information that gives them an advantage

insurance fraud

filing false or intentional claims

money laundering

process of making dirtymoney appear as if it came from a legitimate source

shell company

real registered business that doesn’t have any employees and doesn’t do any real business

2 ways to launder money

1) set up fake businesses and create transactions between them

2) set up a real business and layer the dirty and clean money

tort

a civil wrong that causes harm

3 elements of a tort

1) the wrong is not a breach of contract

2) the wrong is not a crime

3) the law provides a remedy for the wrong

2 types of torts

1) intentional

2) accidental

negligence

unintentional acts or omissions that cause harm

4 elements of negligence

1) duty

2) breach

3) causation

4) damage

who has the greatest legal duty

common carriers

when is there a duty to rescue

1) when you created the hazardous condition

2) when there is a special relationship

good samaritan laws

protect people who try to help even when there was no duty