BLAW301 Exam 4 (Castle -- KU)

What is the U.S. Constitution?

a document that provides the legal framework for our federal government

What is Article 1 of the Constitution?

establishes the legislative branch

What is the simplified power of the legislative branch?

Congress makes the laws

What is Article 2 of the U.S. Constitution?

establishes the executive branch

What are the broad powers of the executive branch?

President enforces the laws

What is Article 3 of the U.S. Constitution?

establishes the judicial branch

What are the powers of the Judicial branch?

Supreme Court interprets the law

What is separation of powers?

when the powers of the Federal government is divided into three separate but equal branches

What is the Bill of Rights?

The first 10 amendments to the Constitution

What does the Bill of Rights protect?

individual liberties by listing specific prohibitions on federal governmental poewr

What does the Due Process Clause of the 14th Amendment do?

"incorporates" the Bill of Rights to limit state governmental power

What is Article VI?

The Supremacy Clause

What does the Supremacy Clause do?

The Constitution is supreme over all laws

Federal law is supreme over state/local laws

What are the effects of the Supremacy Clause?

Any law that violates our constitutional right is going to be struck down

What is preemption?

Federal law preempts any state law to regulate the same area of law/activity

What is the Commerce Clause?

gives Congress the power to regulate persons engaged in, and activities affecting, interstate commerce

basically EVERYTHING

How does the government rely on the Commerce Clause?

it is the clause that allows them to be in our business and be able to regulate us

What is the Tax and Spending Clause?

the power to tax that implicitly comes with with power to spend revenues raised in order to meet the objectives and goals of the government

How does Congress use the Tax and Spending Clause to get what it wants?

Congress often links spending in a state with a particular regulation

Example of Congress using the Tax and Spending Clause for its own benefit?

Congress tied highway funds (from Interstate Act) to states on the notion that states would raise their drinking ages (to 21)

What does the First Amendment Protect?

Freedom of speech, religion, press, assembly, and petition

What is the Freedom of Religion?

Congress shall make no laws respecting the establishment or prohibiting the free exercise thereof

What is the Establishment Clause?

prohibits the government from establishing a religion or enacting laws that favor one religion over another

What is another term for the establishment clause?

separation of church and state

What is the Free Exercise Clause?

prohibits the government from interfering with our right to practice the religion of our choice, or to not practice a religion at all

What is the worst country for religious freedom, according to the in-class notes?

Burma.

How are corporations affected by the Free Exercise Clause?

corporations can invoke religious objections to avoid providing coverage for contraceptives to its female employees

see: Burwell vs. Hobby Lobby Stores, Inc (2014)

Do churches pay federal income taxes?

No

Freedom of Religion

What is the Freedom of Speech?

Congress shall make no law abridging the freedom of speech

What does the Freedom of Speech protect?

verbal, written, and symbolic speech

Is burning the flag allowed within Freedom of Speech?

Yes, it is an expressive conduct

Texas vs. Johnson (1989)

What types of speech are unprotected?

- fighting words (Chaplinsky: 'You're a damned Fascist')

- inciting violence

- obscenity (very few works deemed obscene)

What happens if speech is 'unprotected'?

government can restrict or ban the speech

How did Free Speech come into play at the 2004 Super Bowl

Justin Timberlake and Janet Jackson's unexpected and extremely brief nudity was found by the FCC to 'pander to titillate and shock the viewing audience' and so CBS was fined $500K for violating broadcast indecency rules

What is the Right to Assemble?

the right to peacefully assemble and picket for lawful purposes

Can the Right to Assemble be limited?

Yes, laws may limit the right to assemble to preserve order and promote safety

What is the Fred Phelps Freedom of Speech case?

The Westboro Baptist Church (ew) often pickets at military funerals, believes God hates LGBT people, and spews generally hateful stuff.

SCOTUS ruled that Phelps/WBC entitled to protection even for offensive/disagreeable ideas

What is Commercial Speech?

speech spoken on behalf of a company or individual for the intent of making a profit

Is commercial speech protected?

Yes, because it adds to the public's knowledge and information

Can commercial speech be regulated?

Yes, if compelling interest

ex. FDA cannot force cigarette manufacturers to put images of the effects of smoking on their product (compelling interest)

What is the Freedom of the Press

Congress shall make no law abridging the freedom of the press

Is the press given explicit constitutional protection?

Yes

Is the the Press given absolute constitutional protection?

Not absolute power --> cannot defame with malice

Why do we have the Freedom of the Press?

ensures accountability of our elected officials and gives citizens the right to form opinions on news as it happens and not as the government says it happens

What % of the world lives in countries with Free Press?

14%

What is the Second Amendment?

a well regulated militia, being necessary to the security for a free state, the right of the people to keep and bear arms, shall not be infringed

What did the District of Columbia v. Heller decide?

SCOTUS struck down a ban that would have required guns to be kept unloaded or subject to a trigger-locking mechanism

What was significant about the decision in DC v. Heller?

One of the written opinions (by Scalia, I think) said:

'The Second Amendment right is not unlimited... The Court's opinion should not be taken to cast doubt on longstanding prohibitions of firearms by felons or the mentally ill or laws forbidding the carrying of fire arms in sensitive places such as schools and government buildings'

What is the Fifth Amendment?

No private property shall be taken for public use without just compensation

What is eminent domain?

the government can take property for public use if it pays just compensation

When can a property be seized by the government?

if it benefits the public

What are some examples of 'public good' as reason for eminent domain?

- to be used by the public (road, park, government building)

- electric and utility companies may take property

- justified if serves the public good

What did Kelo v. City of New London (2005) decide?

'public use' includes when the government gives property to a private developer who will profit from developing the land

When can the government take property?

only upon payment of compensation

Who defines "just compensation" or "fair market value"

the courts

Can an owner of property challenge the offered compensation?

Yes, in court

What is the eighth amendment?

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

What did the SCOTUS decide in 1972 regarding the death penalty?

The death penalty laws, as applied, were unconstitutional so Congress passed new death penalty laws that were found by SCOTUS to be constitutional

What were the new death penalty laws?

- bifurcated trial (guilt and sentencing separate)

- jury considers aggravating and mitigating factors

What crimes did SCOTUS decide that the death penalty is available for?

crimes of first degree or 'capital' murder

What are some examples of cruel and unusual punishment?

- draw and quarter/burn alive

- execute mentally handicapped

- execute persons who were under 18 at the time crime were committed

What is the 14th amendment?

No state shall deprive any person of life, liberty, or property without due process of law

What is Procedural in terms of the 14th amendment?

government must provide notice and meaningful opportunity to be heard

What is Substantive in terms of the 14th amendment?

Regardless or procedure, certain rights cannot be infringed upon unless compelling interest and least restive means

What is the Equal Protection clause?

no state shall deny to any person within its jurisdiction "the equal protection of the laws"

What did Brown v. Board of Education do?

It ended legal school segregation by holding that separate is not equal.

What is the key benefit of Consumer Protection Laws?

produce greater safety and security for consumers

What is the key disadvantage of consumer protection laws?

more regulation and stricter consumer protection laws may result in higher prices and fewer goods and services being readily available

What is the FTC?

The primary federal agency that protects consumers and enforcing trade practice regulations

What are some unfair trade practices?

- false advertising

- deceptive pricinig

What is False advertising?

advertising that has a tendency to mislead

What are some examples of false advertising?

- false statements about quality, ingredients or effectiveness

- fake testimonials

- pictures of wrong merchandise

What is the objective standard that defines false advertising?

Would this ad deceive a regular customer?

What is the material standard of false advertising?

Was the representation important to the customer's decision to buy or use the product?

What are some methods of FTC regulation?

- issue advisory opinions

- issue industry guidelines

- prosecutes businesses

What are some tools the FTC has to prosecute businesses

- consent order

- cease and desist order

What is a consent order?

a party consents to an order to not engage in the offensive activity

What is a cease and desist order?

an administrative law judge can issue a cease and desist order prohibiting the offensive activity

Can consumers file complaints to the FTC?

Yes

What are some penalties and remedies the FTC can order for unfair practices?

- civil fines ($16k per violation, a violation per day for failure to obey an order)

- refund money

- damages to consumer

- public notification of violations

- corrective advertising

What is corrective advertising?

FTC can require violator to make statements to correct consumers' misimpressions of the product

Does the FTC have any control over corrective advertising?

Yes, they can specify:

- content of statement

- format to disseminiate

- percentage of advertising budget

What is an example of corrective advertising?

Listerine said it could be an antiseptic and cure a cold. The FTC said 'really?' Listerine said 'well actually no' so the FTC said 'fix that shit' so Listerine did.

$10 million over 18 months on corrective advertising. Oof.

What is the case of Doan's and corrective advertising?

FTC ordered Doan's to spend $8 million over 12 months on corrective advertising telling consumers it is no more effective than other pain relievers for back pain

What is the Equal Credit Opportunity Act?

prohibits discrimination in extending credit on the basis of gender, marital status, race, color, age, religion, national origin, or receipt of welfare

What was the Equal Credit Opportunity Act aimed at?

prohibiting discrimination against women attempting to obtain credit

What are the parts of the Equal Credit Opportunity Act?

- cannot ask about plans for future children

- cannot assess negative points for being of childbearing age

- must include child support and alimony in income calculation

- illegal to redline

What is redlining?

The practice of a lender to refuse to lend in a specific area, often based on the minority makeup of the area

make credit decision based on zip code

What is the Fair Credit Reporting Act?

gives consumers certain rights when they are rejected for credit, insurance, or employment because of an adverse credit report

What are the lender obligations set forth in the Fair Credit Reporting Act?

if a consumer is denied credit, the lender must inform the consumer that:

- the denial was due to an adverse credit report

- the name of the credit agency making the report

- that the consumer can request a copy of their credit report

- that the consumer can challenge their credit report

What is the Truth-in-Lending Act?

those extending credit must inform consumers of the cost of the credit

What is a financing statement?

- default/late payment charges

- identify any property used as security

What is a finance charge?

- total sum of all interest and fees

What is the Fair Debt Collection Practices Act?

prohibits harassment, deception, and personal abuse to collect debts

What are debt collectors not allowed to do (as per the Fair Debt Collection Practices Act)?

- physically threaten

- use obscene language

- represent as attorney unless true

- telephone before 8am or after 9pm

- place collect calls to debtor

- fail to disclose identity as debt collector

How do you stop a debt collector from repeated contact?

make a written request to stop all communications

What happens after you submit a written request to stop communications from a debt collector?

further communications by a debt collector after a written request violate the ACt

What is bankruptcy?

gives a procedure by which an honest debtor can discharge or reduce debts

When do bankruptcy proceedings begin?

when a debtor files a petition of bankruptcy

What is chapter 7 bankruptcy?

- individuals or businesses

- debts discharged