KU BLaw 301 Final Exam UNO

Constitution

o The United States Constitution provides the legal framework for our federal government

§ The body sets forth the powers of the federal government

§ Bill of Rights is the first 10 Amendments that were added later

Separation of Powers

o Article 1: Legislative Branch - Congress makes the laws

o Article 2: Executive Branch - The President enforces the laws

o Article 3: Judicial Branch - Supreme Court interprets the law

Purpose of Separation of Powers

o They are 3 coequal branches and have the power to check and balance one another to prevent one from getting too powerful

§ The president nominates a justice for the Supreme Court and the Senate has to confirm

§ The executive branch appoints cabinet members, but the Senate has to consent/confirm

§ Lawmaking - The legislature passes a law but the President has to sign off on it to make It a law or can veto it to make it a law. 2/3 of the legislature can override this veto

If a judge determines a law from Congress is Unconstitutional or the President issues an executive order, the Judicial Branch can strike down on them and repel them

Bill of Rights

§ The first Ten Amendments to the Constitution protect individual liberties by listing specific prohibitions on federal government power

§ The Due Process Clause of the Fourteenth Amendment "incorporates" the Bill of Rights to limit state governmental power

· Made the Bill of Rights applicable to the states

· The Constitutional protection of a grand jury is the only Amendment that doesn't have to be followed by the states

· Only the government can violate our Constitutional Rights

· The 13th Amendment applies to everyone - abolished slavery

Supremacy Clause

o Article VI

o The Constitution is supreme over all laws

o Federal law is supreme over state/local laws

§ List of importance: U.S. Constitution, Federal Laws and Treaties, State Constitutions, State Laws, and Local Laws

Commerce Clause

o The commerce clause gives Congress the power to regulate persons engaged in - and activities affecting - interstate commerce (pretty much everything).

§ Interstate occurs when state lines are crossed

Spending Clause

o With the tax comes the power to spend

o Congress often links spending in a state with a particular region (e.g., highway funds in exchange for raising the drinking age)

First Amendment

o Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances

Freedom of Religion

o Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof

o Churches are exempt from paying federal income tax

Establishment Clause - Freedom of Religion

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

§ "Separation of church and state"

Free Exercise Clause - Freedom of Religion

§ We are free to believe in the religion of our choice, or no religion at all

· Is absolute and cannot be infringed upon

§ Prohibits the government from burdening our right to practice the religion of our choice

§ After Oregon v. Smith: the government can burden a religious practice if the burden is rationally related to a legitimate purpose

· Law that you can't do drugs but a religion does drugs - you can still get fired for testing positive on a drug test

Freedom of Speech (1st Amendment)

o Congress shall make no law abridging the freedom of speech

o Protects verbal, written, and symbolic speech

o Texas v. Johnson (1989)

§ "Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment."

o Unprotected Speech

§ Categories/Types:

· Fighting words

· Inciting violence

· Obscenity, but very few works are deemed obscene

§ If speech is "unprotected," that means the government can restrict or ban the speech

o Free Speech: 2004 Super Bowl

§ CBS halftime show with Justin Timberlake and Janet Jackson

§ Exposure unexpected and for less than one second

§ FCC found "nudity was designed to pander to titillate and shock the viewing audience"

CBS fined $500,000 for violating broadcast indecency rules

Right to Assemble

o We have a right to peacefully assemble and picket for lawful purposes

o Laws may limit picketing activities to preserve order and promote safety

o Fred Phelps Case

§ Westboro Baptist Church often pickets, especially at military funerals

§ The congregation believes God hates gays

§ Thinks the military is too lenient on gays - the father of the dead military son sued

§ SCOTUS: Phelps entitled to protection even for offensive/disagreeable ideas

· Court talked about speech that involves matters of public concern - that speech is "fiercely" guarded and protected

Commercial Speech (Free Speech of 1st Amendment)

o Commercial speech is often spoken with the intent to make a profit

o Commercial speech is protected because it adds to public's knowledge and information

o Government can limit speech if compelling interest

§ Cigarettes need warnings and aren't supposed to encourage people to smoke

Free Press (1st Amendment)

o Congress shall make no law abridging the freedom of the press

o Press is given explicit constitutional protection

§ Not absolute - press cannot defame with malice

o Free press ensures accountability and that we form opinions on news as it happens - not just how the government says it happens

o Less than 14% of the world lives in countries with Free Press

o Russia's freedom of press has declined since 2000, currently ranking 180 out of 199 countries for free press

Second Amendment

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

§ The Brady Act requires a background check on gun sales

o In 2008, SCOTUS struck down a ban that would have required guns be kept unloaded or subject to a trigger-locking mechanism

§ District of Columbia v. Heller 554 U.S. 570 (2008)

Excerpt from Heller Decision - 2nd Amendment

o Like most rights, the Second Amendment right is not unlimited. The Court's opinion should not be taken to cast doubt on longstanding laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.

o Kansas legislature allows lawful concealed carries on campus

Fifth Amendment: Takings

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

o Eminent Domain

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

§ Public use: building a park or government building, the government can take your property (needs to pay for it)

Fifth Amendment: Takings & Public Use

o The property must benefit the public

o Kelo v. City of New London (2005)

§ "Public benefit" even when the government gives property to a private developer who will profit from developing the land

Fifth Amendment: Takings Just Compensation

o The government must pay just compensation

o "Just compensation" is "fair market value"

o The landowner may challenge the amount

Eighth Amendment

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

Death penalty (cruel and unusual punishment of 8th Amendment)

o In 1972, SCOTUS held death penalty laws unconstitutional

o States passed new death penalty laws

§ Bifurcated trial (trial needs to be separated - one jury determines guilt or innocence, and another jury votes for the death penalty)

§ Mitigating factors (things why someone shouldn't be executed - such as being abused all life, illness, etc.)

o In 1976, SCOTUS held that states' new death penalty laws are constitutional

Death penalty pros and cons

o Pros: eye for an eye (government can kill you if you killed someone else), death penalty works as a deterrent (preventative)

o Cons: under no circumstance should the government kill anyone, what happens if the wrong person gets executed

Death penalty requirements

o In 2008, SCOTUS held death penalty available only for first-degree, or "capital", murder (premeditated murder)

What is a cruel and unusual punishment

o The government cannot:

§ Draw and quarter (tie ropes to wrists and ankles and those to 4 horses, shoot a gun and the horses will run and pull someone apart)/burn someone alive (1878)

§ Execute mentally handicapped (2002)

§ Execute persons who were under 18 at the time the crime was committed (2005)

What is not a cruel and unusual punishment

o The government can:

§ Lethal injection

§ Hanging

§ Gas chamber

§ Firing squad (multiple people shooting at one person at the same time)

§ Electric chair

Fourteenth Amendment

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

Two types of due process (14th Amendment)

o Procedural

§ Government must provide notice and meaningful opportunity to be heard

o Substantive

§ Regardless of the procedure, certain rights cannot be unduly infringed

· People have the right to have their children, refuse medical treatment, take birth control, etc.

Equal Protection (14th Amendment)

o No state shall deny to any person the equal protection of the laws

§ The government must treat all similarly situated people as the same

§ Brown v. Board of Education (1954)

· "Separate is not equal"

Consumer Protection laws

o Hold sellers of goods, services, and credit accountable if they try to give misinformation

o On the bad side, it means there are fewer goods on the market, and makes goods more expensive

Federal Trade Commission

o The FTC is the primary federal agency that protects consumers

o Unfair trade practices:

§ Deceptive pricing

· Claiming item is on sale with a higher regular price, but it never sells for its regular price (deceptive with the sale)

· Kohl's does this and got in trouble with the FTC

· Misrepresenting the price of a similar product from a competitor - lying and saying your competitor is selling higher than your price

· Placing false stickers on items (says $3 but rings up for $3.10)

§ False advertising

False advertising

o Advertising that has a tendency to mislead

§ False statements about quality, ingredients, or effectiveness

§ Fake testimonials

§ Picture of wrong merchandise

o Objective standard

§ Would the ad deceive a reasonable customer

Express and implied claims

Methods of FTC Regulation

§ Advisory opinions

· Write to the FTC if they will come after you if you do something - can say you can do it but still can come after you

§ Industry guidelines

· Opening a funeral home - FTC has lots of regulations, selling jewelry or alcohol - FTC has regulations

Prosecutes businesses

Tools to prosecute businesses - FTC

o Consent order

§ A party consents to an order to not engage in the offensive activity

o Cease and desist order

§ An administrative law judge ("ALJ") can issue a cease-and-desist order prohibiting the offensive activity

· Cease-and-desist just means to stop

Penalties and remedies for unfair practices - FTC

o Civil fines

§ Up to $40,000 per violation

§ Failure to obey an order is a separate violation each day

o Refund money

o Damages to consumer

o Public notification of violations

o Corrective advertising

Corrective Advertising - FTC

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

o FTC can specify

§ Content of statement

§ Format of disseminate

§ Percentage of budget

Corrective Advertising Examples

o Listerine (mouthwash)

§ Advertised that it prevented colds and sore throats

§ The FTC ordered Listerine to spend $10 million over 18 months on corrective advertising

o Doan's (pills)

§ Advertised that it was better than any other pain reliever for back pain

§ The FTC ordered Doan's to spend $8 million over 12 months on corrective advertising because it isn't more effective than other drugs on the market

Fair credit regulations

* Fair Credit Reporting Act

* Equal Credit Opportunity Act

* Truth-in-Lending Act

* Fair Debt Collection Practices Act

Equal Credit Opportunity Act

o Equal Credit Opportunity Act

§ Prohibits discrimination in extending credit

§ Aimed at gender discrimination

§ Bank regulations:

· 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 (make credit decision based on zip code)

Fair Credit Reporting Act

§ Gives consumers certain rights when they are rejected because of an adverse credit report

§ Lender Obligations

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

o The denial was due to an adverse credit report

o The name of the credit agency making the report

o The consumer can request a copy of their credit report

o The consumer can challenge their credit report

Truth-in-Lending Act

§ Those extending credit must inform consumers of the cost of the credit

§ Financing Statement

· Default/late payment charges

· Identify any property used as security

· Finance charge

o Total sum of all interest and fees

Fair Debt Collection Practices Act

§ Prohibits harassment, deception, and personal abuse to collect debts

§ To stop a debt collector from repeated contact, make a written request to stop all communications

Bankruptcy

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

Petition for Bankruptcy (Chapters)

o Chapter 7

§ Individuals or businesses

§ Debts discharged (aren't in business anymore)

o Chapter 11

§ Businesses

§ Debts reorganized (stay in business)

o Chapter 13

§ Individuals

§ Debts reorganized

Bankruptcy Trustee

o Person selected, usually a lawyer, to represent the bankruptcy estate

o Takes possession of and liquidates debtor's property

Creditor Priority - Bankruptcy

Certain creditors receive priority over others in the distribution of the debtor's assets

Discharge - Bankruptcy

o The goal is to discharge all debts

o Some debts are not discharged

§ Taxes

§ Child support

Student loans

Civil Rights Act of 1964 - Title VII

o Title VII prohibits discrimination based on race, sex, color, religion, and national origin

o An employer may not discriminate in:

§ Hiring

§ Discharge

§ Compensation

§ Promotion

§ Terms, conditions, or privileges of employment

· Employers who make basic decisions for employees - dislike Catholics, so they place them in the dirty, windowless basement and give everyone better work conditions

o Retaliation against an employee who complains about discrimination is also prohibited

Bona fide occupational qualifications

§ An employer may discriminate only if reasonably necessary to normal business operations

· A Catholic church can say no to a Rabbi who applies to run the church

EEOC Enforcement of Title VII

o Equal Employment Opportunity Commission

o Complaint

§ File within 180 days of discriminatory conduct

o Investigation

o EEOC may file a lawsuit

Civil lawsuits - Title VII

o A person may file a lawsuit only after the EEOC has investigated

§ Notice of Right to Sue letter

§ File within 90 days

o Remedies

§ Compensatory damages

§ Job reinstatement

§ Back/front pay

· Back pay - should have gotten a promotion a year ago, so it makes up for the lost income

· Front pay - what you should get going forward

§ Punitive damages

Types of discrimination claims - Civil Lawsuits of Title VII

o Disparate treatment

§ An employer intentionally discriminates against a person

o Disparate impact

§ An employer's practice has a discriminatory effect/impact on a protected group

· A fire chief says, "To apply to be a firefighter, you must be 5'7" or taller." It has a bigger disparate (disproportional) impact on women and discriminates them from applying

o Harassment

§ An employer creates/allows a hostile work environment

Racial Discrimination

o Disparate treatment

§ Race was a motivating factor in the employment decision

o Disparate impact

§ Implementing a company policy that disproportionally affects minorities

Racial Harassment

o Employers cannot knowingly allow an environment that is racially harassing

§ Reprimand harassers

· Tell employees to stock, document you telling them with a write-up, and put the write-up in their file

§ Corrective measures

· Steps taken to create change - bringing employees in and having HR give workplace training

Religious discrimination

o Employers cannot discriminate on the basis of one's religion

o An employer must make reasonable accommodations for the religious needs of its employees

§ Religion says to not shave facial hair - applies to McDonald's - work accommodates by putting a hairnet over his beard

Religious Harassment

o Employers can not knowingly allow an environment that is religiously harassing

§ Reprimand harassers

§ Corrective measures

Sex discrimination

o Employers cannot discriminate on the basis of one's sex

o Employers cannot:

§ Refuse to hire, promote, or fire based on sex

§ Classify jobs as male or female

§ Have sex-specific job qualifications

Sexual Harassment

o Quid Pro Quo

§ Threaten or promise benefits in exchange for sexual behaviors

o Hostile Work Environment

§ Sexual comments that make the work environment hostile

Employers cannot knowingly allow an environment that is sexually harassing

o Reprimand harassers

o Corrective measures

National Origin Discrimination

o Protects various ethnic groups in the workplace

o Prohibits certain employment practices that concern speaking a native language in the workplace

§ Cannot prohibit someone from speaking in Spanish to other coworkers

Sexual Orientation Discrimination

o The Supreme Court held that Title VII prohibits discrimination against employees based on sexual orientation or gender identity

o Bostock v. Clayton County (2020)

o Many state and local laws prohibit discrimination based on sexual orientation

Pregnancy Discrimination Act (not in Title VII)

o Employers cannot discriminate against employees who become pregnant/give birth

Equal Pay Act (not in Title VII)

o Prohibits sex discrimination in employment compensation

o Prohibits employers from paying higher wages to men for performing substantially the same work

Age Discrimination in Employment Act

o Employers cannot discriminate against employees over 40

o Age cannot be a motivating factor in an employment decision to not hire, not promote, or discharge an employee

Americans with Disabilities Act (1990)

o Employers cannot discriminate against a person with a disability who can perform the job with reasonable accommodations

o ADA also requires reasonable accommodations for public accommodations