Midterm Prep Blaw (1) PDF

Class Deck 1 4 sources of American law 1.​ The U.S. Constitution and the constitutions of the various states ○​ The 2nd amendment: a well-regulated militia being necessary for the security of a free state, the right fee people to keep and bear Arms, shall not be infr...

Class Deck 1 4 sources of American law 1.​ The U.S. Constitution and the constitutions of the various states ○​ The 2nd amendment: a well-regulated militia being necessary for the security of a free state, the right fee people to keep and bear Arms, shall not be infringed ○​ However… the right does not extend so far that people can, per SCOTUS, “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” 2.​ statutory law: Law enacted by legislative bodies at any level of government such as the statutes passed by Congress or by state legislatures ​ Legislatures can prohibit the carrying of concealed weapons or certain types of firearms, such as machine guns ​ Ultimately, however, SCOTUS is the final interpretation of the Constitution, gives meaning to constitutional rights, and determines their boundaries 3.​ Administrative law: consists of rules, orders, and decisions of administrative agencies a.​ An administrative agency is a federal, state, or local government established to perform a specific function b.​ Although established by statutes, executive agencies - such as the Bureau of Alcohol, tobacco & firearms - are subject to the authority of the president, who has the power to appoint and remove their officers 4.​ Common Law: the rules of law announced in court decisions constitute another basic source of American law a.​ These rules of law include interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies b.​ Stare decisis- the practice forms of a doctrine Latinn “to stand on decided cases”) c.​ The doctrine of stare decisis helps the courts be more efficient because other courts have carefully reasoned through a similar case, their legal reasoning and opinions can serve as guides Stare Decisis ​ Two aspects 1.​ A court should not overturn its precedents unless there is a strong reason to do so a.​ Example: 2nd amendment is interpreted has changed dramatically 2.​ Decisions made by a higher court are binding on lower courts a.​ SCOTUS has the final say Secondary Sources of Law ​ A book or article that summarizes and clarifies a primary source of law ○​ Legal encyclopedias, compilations (restatements of the law, which summarize court decisions on a particular topic), official comments to statutes, treatises, articles in law reeves published by law schools, and articles in other legal journals are examples of secondary ounces of law ​ Courts often refer to secondary sources of law for guidance in interpreting and applying the primary sources of law discussed here International Law ​ Body of law ○​ Formed as a result of international customs, treaties, and organizations - that govern relations among or between nations ​ The major difference between international and national is that nations' government authorities can enforce national law. ​ What govt can enforce international law? ○​ In this case, the success of Mexico's lawsuit will ultimately be decided by American courts. ○​ Even a negotiated agreement with the US would be subject to judicial review. Class Deck 2 Intro to Ethics ​ Most ethical theories are based on the theory that people are entitled to equal consideration and treatment ​ 2 main theories about how to achieve that end 1.​ Utilitarianism- the goal is to produce the greatest good for the greatest number a.​ Quality b.​ QQuantityInIntensityuration c.​ PRopinquity- nearness at hand d.​ Probability e.​ FFecundity will it subsequently lead to or produce positive or negative utility ​ Some theories are built around acts and others around rules. 2.​ Deontology- decision should be based on duty and obligation  a.​ The golden rule- would you say that your act should become a universal law of conduct? b.​ Always treat people as ends, never, merely as means c.​ And always tell the truth, so that people can make informed decisions i.​ Do not pretend that good or happiness will be maximized Types of Law ​ Criminal Law- the body of law that identifies what behavior is criminal and stipulates penalties for violations ○​ Most are statutes, enacted by the U.S. Congress or a state or local legislature. The criminal court only hears cases involving the alleged commission of misdemeanors and felonies. ○​ To convict a criminal- the district attorney must show beyond a reasonable doubt that the accused committed the crime. ​ Civil Law- the body of state and federal law that pertains to civil, or private, rights that are enforced by civil action ○​ Most often, in a civil lawsuit, one private party sues another private party who, they allege, failed to comply with a dut.y ○​ In a civil trial, a plaintiff only has to show by a preponderance (a greater amount, 51%) of evidence that the defendant is liable.le. ○​ Unlike a criminal trial, the plaintiff may leave the courtroom with a verdict that will require the defendant to provide financial compensation to eh plaintiff. Civil Lawsuit Process ​ If the facts of the case are not in dispute, the case may be decided without going to trial. ​ In a motion for summary judgment, the moving party (the one making the request) argues that there i no question of fact and the relevant law requires that he be reeds judgment if the case goes to trial, the plaintiff usually must decide whether she wants the case to be heard by a jury. Trial Courts ​ Trial courts carry out the initial proceedings (trials) in lawsuits: 1.​ To determine the facts of the dispute 2.​ To decide what rules of law should be applied to the facts 3.​ To administer those rules Appellate Courts ​ After the court's final decision:  ○​ The losing party can appeal the decision to a higher court to review the lower court’s decision ​ Appellate courts must work from a court transcript of what was said and what evidence was used in the lower court, such as contracts, photographs, business records, waivers, and leases. ​ State appellate courts do not review new evidence, hear new witnesses, make different or new determinations of fact, or use a jury. ​ Instead ○​ These courts review written briefs prepared by attorneys that include legal arguments claiming that there was an error in procedure or that the law was incorrectly applied to the facts that were presented to the lower court ○​ If the appellate court determines that the lower court incorrectly applied or interpreted the law ​ It will modify or reverse the lower court decision ​ Provide a revised judgment and remand (send back) the case to the trial court for a new trial to be conducted using the appellate court’s instruction ​ When reaching decisions: ○​ Appellate courts usually interpret and apply relevant statutory law along with appropriate common law derived from precedent ○​ When no controlling statute or precedent applies to a case ​ Judge Law or Case Law- AP may create a new rule or extend an existing principle to the case at hand ​ Example: NCAA v. Alston Class Deck 3 U.S Court System U.S. Supreme Court |​ ​ ​ ​ ​ | ​ State Supreme Courts​ ​ Federal Appellate Courts ​ ​ |​ ​ ​ ​ ​ | ​ State Appellate Courts​ ​ ​ Federal District Courts ​ ​ | ​ State Trial Courts FIRAC 1.​ Relevant Facts 2.​ Issue(s) 3.​ Rules 4.​ Application 5.​ Conclusion FIRAC – extended ​ Relevant Facts ○​ Incident facts (might include testimony) ○​ Key arguments by the plaintiff & defendants during the initial trial ○​ Initial ruling & reasons for ruling ○​ Why is the losing part appealing? ​ Issue(s) ○​ The issue or issues are either substantive or procedural ​ Rules ○​ The legal principles that will be used to judge the merits of the issue ​ Application ○​ Application of those principles to eh specific case ​ Conclusion ○​ Was the appeal successful and if the answer is yes, what are the next steps Bad Frog Brewery INC v. New York State Liquor Authority (1998) Background Info  ​ Bad Frog is a Michigan corporation that manufactures and markets several different types of alcoholic beverages under its “Bad Frog” trademark. ​ Each label prominently features an artist's rendering of a frog holding up its four-“fingered” right “hand,” with the back of the “hand” shown, the second “finger” extended, and the other three “fingers” slightly curled. ​ Bad Frog does not dispute that the frog depicted in the label artwork is making the gesture generally known as “giving the finger” and that the gesture is widely regarded as an offensive insult. ​ Versions of the label feature slogans such as “He just don't care,” “An amphibian with an attitude,” “Turning bad into good,” and “The beer so good ․ it's bad.” ○​ Another slogan was “He's mean, green, and obscene.” Initial Case ​ In May 1996, Bad Frog's authorized New York distributor made an initial application to NYSLA for brand label approval and registration. ○​ NYSLA denied that application in July. ​ Bad Frog filed a new application in August, resubmitting the prior labels and slogans, but omitting the label with the slogan “He's mean, green and obscene,” replacing it with a new slogan, “Turning bad into good.” ○​ BF claimed the gesture was a symbol of peace solidarity, and goodwill will. The NYSLA denied Bad Frog’s 2nd application, finding Bad Frog's contention as to the meaning of the frog's gesture “ludicrous and disingenuous.” ○​ They found that the label “encourages combative behavior” and that the gesture and the slogan, “He just doesn't care,” placed close to and in larger type than a warning concerning potential health problems, foster defiance of the health warning on the label, entice underage drinkers, and invite the public not to heed conventional wisdom and to disobey standards of decorum. ​ The NYSLA also claimed that it considered that approval of this label means that the label could appear in grocery and convenience stores, with obvious exposure on the shelf to children of tender age. ​ Finally, the gesture of “giving the finger” to someone, has the insulting meaning of “Fuck You,” or “Up Yours,”--a confrontational, obscene gesture, known to lead to fights, shootings,s and homicides [,] and thus concludes that the encouraged use of this gesture in licensed premises is akin to yelling “fire” in a crowded theatre. Appeal  ​ BaFrogog appealed, claiming that their label and promotions do not promote combative behavior or dangerous behavior. ​ Their label and promotions do not promote intemperance (illegal or excessive drinking) ○​ And that there was no evidence that minors were being harmed; that other products were legally similarly promoted to youths; and that remedial steps could be taken short of banning BF. ​ The initial Appeals Court ruled that the State had failed to show that the rejection of Bad Frog's labels “directly and materially advances the substantial governmental interest in temperance and respect for the law.” ​ In reaching this conclusion the Court appears to have accepted BF’'s contention that marketing gimmicks for beer such as the “Budweiser Frogs,” “Spuds Mackenzie,” the “Bud-Ice Penguins,” and the “Red Dog” of Red Dog Beer, which is virtually indistinguishable from the Plaintiff's frog, promote intemperate behavior in the same way that the Defendants have alleged Plaintiff's label would․ ○​ And therefore the regulation of the Plaintiff's label will have no tangible effect on underage drinking or intemperate behavior in general. ​ However, the Appeals Court (AC) accepted the State's contention that the label’s rejection would advance the governmental interest in protecting children from advertising that was “profane,” in the sense of “vulgar.” ​ They acknowledged the NYSLA failed to present evidence to show that the label rejection would advance this interest, but ruled that “the link between the regulation and the government interest advanced is self-evident,” ​ Finally, the Court ruled that other restrictions, such as point-of-sale location limitations would only limit exposure of youth to the labels, whereas rejection of the labels would “completely foreclose the possibility” of their being seen by youth. ​ BF again appealed because the link between the regulation and the government interest advance is not self-evident and argued that, even if it was self-evident, remedial steps should be more narrowly tailored. ​ Direct advancement: Despite the lack of evidence of harm, does the label rejection advance the governmental interest in protecting children from advertising that was “profane,” in the sense of “vulgar?” Is a categorical ban on this label justified? 1.​ To meet the “direct advancement” requirement, a state must demonstrate that “the harms it recites are real and that its restriction will alleviate them to a material degree.”  ○​ A restriction will fail if it “provides only ineffective or remote support for the government's purpose.” 2.​ Narrow Tailoring ○​ Are there alternatives, short of a categorical ban on using this label and slogans, that would prove less intrusive to protect children from profane or vulgar content? 3.​ Direct advancement? ○​ The State did not provide evidence that significant harm would be likely to occur. ○​ Given the wide currency of vulgar displays throughout contemporary society, including comic books targeted directly at children, barring such displays from labels for alcoholic beverages cannot realistically be expected to reduce children's exposure to such displays to any significant degree. ​ “The judgment of the District Court is reversed, and the case is remanded for entry of judgment in favor of Bad Frog on its claim for injunctive relief; ​ the injunction shall prohibit NYSLA from rejecting Bad Frog's label application, without prejudice to such further consideration and possible modification of Bad Frog's authority to use its labels as New York may deem appropriate, consistent with this opinion.” Class Deck 4 Judicial Review ​ The judiciary can decide whether the laws or actions of the other two branches are constitutional. ○​ Enables them to act as a check on the other two branches ​ In line with the checks-and-balances system Marbury v. Madison (1803) – FACTS ​ After John Adams lost the presidential election to ThomaJeffersonon in 1800 ○​ He packed the judiciary with loyal federalists by appointing what came to be called “midnight judges” before he left office. ○​ But only 42-59 judicial appointment letters were sent by John Marshall ​ Jefferson stopped the rest from being sent out ​ William Marbury and 3 others to whom ht commissions had not been delivered filed a writ of mandamus (an order directing a govt official to fulfill a duty) with SCOTUS. ○​ As authorized by the Judiciary Act in 1789 ○​ Article 3 forbids SCOTUS from hearing “original” cases unless they involve states  ​ John Marshall faced a dilemma ○​.If he ordered the commissions delivered, the new secretary of state could simply refuse to deliver them. ○​ If he allowed the new administration to do as it wished, the court's power would be eroded. Marbury v. Madison (1803) – ISSUES ​ Should SCOTUS enforce the writ of mandamus? ​ Does SCOTUS have a right to enforce the writ of mandamus? Marbury v. Madison (1803) – RULES 1.​ Does Marbury have the legal right to his commission? 2.​ If yes… is a court-ordered writ of mandamus the proper legal means to get the commission? 3.​ If yes. Does SCOTUS have the authority to grant a writ of mandamus? Marbury v. Madison (1803) – APPLICATION 1.​ Does Marbury have the legal right to his commission? a.​ YES… Adams had a lawful right to commission judges until the moment he left office 2.​ Is a court-ordered writ of mandamus the proper legal means to get the commission? a.​ YES… Marbury has a right to go to court to secure a lawful commission 3.​ Does SCOTUS have the authority to grant a writ of mandamus? a.​ NO… Article 3 of the constitution limits SCOTUS jurisdiction on original cases to matters involving states or bassadors b.​ This case does not involve either. ​ “It is emphatically the province and duty of the Judicial Department to say what the law is… If two laws conflict with each other, the Courts must decide on the operation of each… If both [a] law and the Constitution apply to a particular case,... the Court must determine which of these conflicting rules governs the case.” Marbury v. Madison (1803) – CONCLUSION ​ Scotus DOES NOT have the right to grant Marbury a right of mandamus ○​ However, SCOTUS has the final word when there is a contradiction between the Constitution and the Statues ​ If the courts did not have the power of judicial review, the constitutionality of Congress’s acts could not be challenged in court — congressional staties would remain law unless changed by Congress Basic Judicial Requirements – Jurisdiction ​ Before hearing a case  ○​ Must have jurisdiction over the person or company who the suit is brought over ○​ Must have jurisdiction over the subject matter of the dispute ○​ A court with geographic jurisdictional exerciuse personal jurisdiction over any person or business ​ Long Arm Statute ○​ A court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state.e ​ Before exercising over a nonresident: the court must be convinced that the defendant had sufficient contracts, or minimum contracts, with the state to justify the jurisdiction. ​ A corporation is subject to jurisdiction only in states where it does substantial and continuous business. ​ Jurisdiction over a subject matter is a limitation on the types of cases a court can hear. ​ Both federal and state courts ○​ There are courts of general jurisdiction and courts of limited jurisdiction ​ The court’s subject-matter jurisdiction can be limited by any of the following: 1.​ The subject of the lawsuit 2.​ The sum in controversy 3.​ Whether the case involves a felony (a more serious type of crime) or a misdemeanor 4.​ Whether the proceeding is a trial or an appeal ​ Federal Courts ○​ Limited powers ○​ Only have subject-matter jurisdiction in two situations: ​ Those involving federal questions ​ diversity of citizenship ○​ Per Article 3 Section 3 of the Constitution ​ Whenever the plaintiff's cause of action is based on the U.S. Constitution, a treaty, or federal law… federal question arises and the federal courts have jurisdiction. ​ Diversity of Citizenship ○​ The most common type of diversity jurisdiction requires both of the following.g 1.​ The plaintiff and defendant must be residents of different states 2.​ The dollar amount in controversy must exceed $75,000  ​ The party seeking to move a case to federal court bears the burden of demonstrating that the grounds for diversity exist Basic Judicial Requirments — Jurisdiction of CyberspaceWhenn the defendant conducts substantial business over the Internet (such as contracts and sales), jurisdiction is proper 1.​ When there is some interactivity through a website, jurisdiction may be proper 2.​ When a defendant merely engages in passive advertising on the web, jurisdictions never prosper Basic Judicial Requirments — Venue ​ The choice of venue is concerned with the most appropriate physical location for a trial. Thee concept of the venue reflects the policy that a court trying a suit should be in the geographic neighborhood (usually the county) ○​ Where the incident leading to the lawsuit occurred or where the parties reside Basic Judicial Requirments — Standing ​ One can’t file a lawsuit unless they have a sufficient “stake” in the matter to justice-seeking relief through the court system ​ The party bringing the lawsuit must have suffered harm, such as physical injury or economic loss as a result of the action that will be the focus of the lawsuit ​ At times, a person can have standing to sue on behalf of another person, such as a minor or mentally incompetent person Murphy v.National Collegiate Athletic Association (2018) — FACTS ​ 1992: congress passed the Professional and Amateur Sports Protection Act (PASPA) ​ PASPA prohibited states from expanding access to sports gambling in their state unless they passed such an expansion into law within 12 months ○​ Did not amount to a federal ban on sports gambling and didn't require federal enforcement ​ Federal enforcement was out of the question because the law would have to be applied in all 50 states ○​ New Jersey argues that this efficiently required them to enforce federal law – which would be a violation of the 10th amendment ​ 10th amendment prescribes that the federal govt has only those powers delegated to it by the constitution and that all other powers not forbidden to the states by the constitution are reversed to each state ○​ Can pass supervising laws ​ NJ residents voted to legalize sports gambling but the lower courts deferred to PASPA and SCOTUS refused to hear the case  ○​.NJ then stopped enforcing PASPA, which led the NCAA to sue them ○​ NCAA initially won, but SCOTUS agreed to hear NJs appeal Murphy v. National Collegiate Athletic Association (2018) — ISSUE ​ Whether the US federal govt, through the passage of PASPA, illegally controls state lawmaking by violating the 10th amendment of the US Constitution? Murphy v. National Collegiate Athletic Association (2018) — RULE, APPLICATION, CONCLUSION ​ Rule — the Federal govt cannot require states to enforce its laws ​ Application — the Feds cannot require NJ to enforce PASPA ​ Conclusion ○​ PAPSA is unconstitutional ○​ All states have a right to legalize sports gambling unless Congress passes a national prohibition.n Class Deck 5 Capitalism and Corporations ​ The main goal of most businesses is to maximize profits. This is accomplished by maximizing revenue while minimizing costs. ​ These costs can be internal, e.g., labor costs or the steps taken to make the workplace safer.​ Or external, e.g., regulator compliance or taxation. ​ Privately owned businesses are free to prioritize other values, but the people who run corporations have a fiduciary responsibility to maximize profits. Capitalism and Corporations ​ Even if a business benefits from a public expenditure, e.g., an investment in improving public schools or combating rising sea levels, the business wants to spend as little as possible to help solve the problem. ​ This is true even if the company is solely responsible for causing the problem, e.g., an oil spill. Defenses of Capitalism 1.​ Principled Defense: Freedom of Choice–Friedman: a.​ “In an ideal free market resting on private property, no individual can coerce any other, all cooperation is voluntary, all parties to such cooperation benefit or they​ need not participate.”  b.​ By contrast, with politics, “the individual may have a vote and a say in what is to be done, but if he is overruled, he must conform.” 2.​ The Invisible Hand–Efficient Allocation of Resources— The marketplace compels both businesses and individuals to make disciplined decisions that benefit society. a.​ By contrast, centralized planning leads to gross inefficiencies 3.​ Maximizes production output—the unprecedented material output has improved almost everyone’s quality of life a.​ Why Form Corporations? Limited Liability ​ A “first principle” of corporate law is that “for-profit corporations are entities that possess legal interests and a legal identity of their own—one separate and distinct from their shareholders.”– Greenfield. ​ The very purpose of the corporation as a legal form is to create an entity “distinct in its legal interests and existence from those who contribute capital to it.”— Greenfield.d ○​ This separateness means that shareholders are not held liable for the debts of the corporation. How Limited Liability Benefits Society ​ They make it possible for people who do not wish to oversee the day-to-day activities of companies in which they invest—and do not wish to risk every penny they own if the corporation goes bankrupt—to invest in corporate stock. ​ This separateness is what makes capital markets possible, and such markets are essential for the development of a vibrant national economy. ○​ And since corporations can exist long after the life of any individual that invests in, or works in corporations, they provide a mechanism for society to make long-term, intergenerational investments that are not linked to government or a specific family. Corporate Social Responsibility ​ Corporate social responsibility (CSR) combines a commitment to good citizenship with a​ Commitment to making ethical decisions, improving society, and minimizing environmental impact. ​ CSR is not imposed on a corporation by law but is instead a form of self-regulation by the​ Company. Forms of CSR ​ Environmental efforts, such as using efficient building materials and reducing the size of the firm’s carbon footprint.  ​ Ethical labor practices, including treating all employees fairly and ethically in international as well as domestic operations. ○​ Charitable donations to local and national causes. ○​ Volunteering for specific issues and organizations. As an incentive, many companies now pay employees to perform volunteer work. ○​ Environmental efforts, such as using efficient building materials and reducing the size of the firm’s carbon footprint ○​ Ethical labor practices, including treating all employees fairly and ethically in international as well as domestic operations. ○​ Charitable donations to local and national causes. ○​ Volunteering for specific issues and organizations. As an incentive, many companies now pay employees to perform volunteer work. Extent of CSR ​ One view of CSR stresses that corporations have a duty not just to shareholders, but also to other groups affected by corporate decision-making, called stakeholders. ​ The rationale for this “stakeholder view” is that, in some circumstances, one or more of these groups may have a greater stake in company decisions than the shareholders do. ​ The most difficult aspect of the stakeholder analysis is determining which group’s interests.​ Should receive greater weight if the interests conflict. Friedman’s Argument ​ In a free-enterprise, private-property system, a corporate executive is an employee of the owners of the business. ○​ He has direct responsibility to his employers and a lesser degree his employees and customers. ​ That responsibility is to conduct the business according to their desires, which generally will be to make as much money as possible while conforming to the basic rules of society, both those embodied in law and those embodied in ethical custom ​ A group of persons might establish a corporation for an eleemosynary (charitable) purpose, e.g., a hospital or school. ​ The manager of such a corporation will not have money profit as his objective but the rendering of certain services. ○​ In either case, the key point is that, in his capacity as a corporate executive, the manager is the agent of the individuals who own the corporation or establish the eleemosynary institution, and his primary responsibility is to them.  ○​ Of course, the corporate executive is also a person in his own right. He may have many other responsibilities that he recognizes or assumes voluntarily—to his family, his conscience, his feelings of charity, his church, his clubs, his city, and his country. ○​ But in these respects he is acting as a principal, not an agent; he is spending his own money or time or energy, not the money of his employers or the time or energy he has contracted to devote to their purposes. ○​ Insofar as a corporate executive actions in accord with his “social responsibility” reduce returns to stockholders, he is spending their money. ○​ The whole justification for permitting the corporate executive to be selected by the stockholders is that the executive is an agent serving the interests of his principal. ​ This is the basic reason why the doctrine of “social responsibility” involves the acceptance of the socialist view that political mechanisms, not market mechanisms, are the appropriate way to determine the allocation of scarce resources to alternative uses. ○​ And if he acts in a ‘socially responsible’ way, will not the stockholders fire him? ○​ The situation of the individual proprietor is somewhat different. If he acts to reduce the returns of his enterprise to exercise his “social responsibility,” he is spending his own money, not someone else’s. ​ It may well be in the long-run interest of a corporation that is a major employer in a small community to devote resources to providing amenities to a community or to improving its government. ​ That may make it easier to attract desirable employees it may reduce the wage bill lessen losses from pilferage and sabotage or have other worthwhile effects. ○​ But these are decisions based on self-interest, not social responsibility Short-Sightedness ​ The short-sightedness of corporate executives is strikingly exemplified in the calls from many businessmen for wage and price guidelines or controls or income policies. ​ There is nothing that could do more in a brief period to destroy a market system and replace it with a centrally controlled system than effective governmental control of prices and wages. ○​ Preaching the gospel of social responsibility represents a similarly suicidal impulse. Equality in the Marketplace ​ In an ideal free market resting on private property, no individual can coerce any other, all cooperation is voluntary, and all parties to such cooperation benefit or they need not participate. ○​ By contrast, the individual may have a vote and a say in what is to be done, but if he is overruled, he must conform.  ○​ But the doctrine of “social responsibility” taken seriously would extend the scope of the political mechanism to every human activity. Conclusion ​ In a free society, “there is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud.” ​ In a free society, “there is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud.” The Nature of Corporations? ​ “They have no soul to save and nobody to incarcerate.”—Baron Edward Thurlow Greenfield, however, argues that they can make positive contributions to society if they are legally treated as people in some respects but not in others. Greenfield ​ The American left is notoriously fractious. But one belief that unites more than most is this: Corporations are not people. ​ Some content themselves with objecting to SCOTUS’s 2010 Citizens United ruling; others want to deny corporations 1st Amendment (free speech) rights, and some even want to strip them of all constructional rights Greenfield—Main Claim ​ The attack on corporate personhood is a mistake. And it may, ironically, be playing into the hands of the financial and managerial elite. What’s the best way to control corporate power? More corporate personhood, not less. Hobby Lobby ​ Hobby Lobby is a “closely held” corporation— meaning its stock is not publicly traded. The stock is owned by members of one family, the Greens of Oklahoma City, who are devout Christians. ​ The Greens objected to the Affordable Care Act because it contained a provision requiring the company to provide its employees with health insurance that includes all medically approved forms of contraceptive care. Corporate Personhood ​ Understand that “corporate personhood” simply expresses the idea that the corporation has a legal identity separate from its shareholders.  ​ A “first principle” of corporate law (as we explained) is that “for-profit corporations are entities that possess legal interests and a legal identity of their own—one separate and distinct from their shareholders.” ​ The very purpose of the corporation as a legal form is to create an entity “distinct in its legal interests and existence from those who contribute capital to it.” Promoting Capital Markets ​ This separateness is what makes capital markets possible, and such markets are essential for the development of a vibrant national economy. ○​ And since corporations can exist long after the life of any individual that invests in, or works in corporations, they provide a mechanism for society to make long-term, intergenerational investments that are not linked to government or a specific family. Corporate Personhood & Hobby Lobby ​ The reason the Greens had chosen to form a corporation was separateness—the ability to operate the business without running the risk of losing their assets if the corporation went belly up. ​ They should not then be able to stand in the shoes of the corporation for purposes of religion. SCOTUS disagreed. It held, 5-4, that the Greens could project their religious beliefs onto the corporation and refuse to provide their employees the required contraceptive-care benefits. In Praise of Corporate Personhood ​ Consider the Deepwater Horizon oil spill disaster. For three months in 2010, 50,000 barrels of crude oil a day spewed into the coastal waters of the Gulf of Mexico. ○​ Without corporate personhood, the channel for that outrage would be limited to lawsuits and criminal inquiries against individual human beings responsible—managers, workers, and contractors. ○​ However, corporate personhood provides an additional mechanism for enforcing accountability, by providing a deep pocket to sue. Governmental Power ​ The opposite of a constitutional right is a government power. If corporations have no rights, then governmental power in connection with corporations is at its maximum. ​ That power can be abused, and corporate personhood is a necessary bulwark. ○​ For example, SCOTUS correctly decided that the newspapers have a First Amendment right to publish. Standing ​ In 1992, Planned Parenthood won a hard-fought battle to have the Supreme Court reaffirm Roe v. Wade.  ​ Planned Parenthood is a corporation, but no one seriously suggested it had no standing to object to limits on its ability to provide abortions. Unreasonable Searches & Seizures ​ Google and other media companies are fighting government demands to disgorge the contents of their servers. ​ No one seriously suggests that the government’s power should be unchecked because the media companies, as corporations, have no Fourth Amendment rights to be free of unreasonable searches and seizures. Limits on Corporate Personhood ​ Of course, corporations are not genuine human beings. They should not automatically receive all the constitutional rights that you and I can claim, e.g., They cannot vote, serve on juries, or plead the 5th. ​ It does not make any sense to think of corporations asserting those rights, both because of the nature of the right and the nature of the corporate entity. Limits on 1st Amendment Rights ​ Sometimes it makes little sense to protect the 1st Amendment rights of corporations, e.g., securities laws routinely require corporations to disclose to the public their financial well-being. ○​ On the other hand, sometimes it’s important to protect the right of a corporation to speak, as in the Pentagon Papers case, not because the corporation owns free speech rights but because of the rights of human listeners to listen to what it has to say. ​ But notice something. One can support campaign finance regulation and still acknowledge corporate personhood as well. Money as a Form of Free Speech ​ Corporations occasionally say things that matter to voters, even in elections. And while money is not itself speech it is sometimes essential to make speech audible above the din. ○​ However, It is not hyperbole to say that without limits on how much money the super-rich or corporations can spend on promoting their views, our democracy is at risk. Shareholder Primacy ​ The executives who run American corporations do not generally think of themselves as having many obligations to the public. ​ But these defects of corporate power, fundamental as they are, are not problems of constitutional law or corporate personhood. ​ They are problems of corporate law, and they could be fixed by corporate law. Shareholder Primacy  ​ “Much of what Americans perceive to be wrong with the economy these days”, claims Steven Pearlstein— ”the slow growth and rising inequality; the recurring scandals; the wild swings from boom to bust; the inadequate investment in R&D, worker training and public goods—has its roots in this ideology.” ​ “Fiduciary duties” to shareholders should be extended to employees and other corporate stakeholders. ​ Corporations should be seen as having robust social and public obligations that cannot be encapsulated in share prices. Shareholder Primacy ​ “Much of what Americans perceive to be wrong with the economy these days”, claims Steven Pearlstein— ”the slow growth and rising inequality; the recurring scandals; the wild swings from boom to bust; the inadequate investment in R&D, worker training and public goods—has its roots in this ideology.” ​ “Fiduciary duties” to shareholders should be extended to employees and other corporate stakeholders. ​ Corporations should be seen as having robust social and public obligations that cannot be encapsulated in share prices. Solutions ​ One way to make these obligations operational is to make the decision-making structure of the company itself more pluralistic., e.g., having other stakeholders on Boards. ​ Even with these management structures, corporations continue their focus on building wealth—that is the core purpose of the corporate form—but not for a narrow sliver of their investors only. ○​ This would mount to mimicking traits of human personhood. ​ One way to make these obligations operational is to make the decision-making structure of the company itself more pluralistic., e.g., having other stakeholders on Boards. ​ Even with these management structures, corporations continue their focus on building wealth—that is the core purpose of the corporate form—but not for a narrow sliver of their investors only. ○​ This would mount to mimicking traits of human personhood. Slide Deck 6 Silk Road & Capitalism  ​ Last week, President Trump pardoned Silk Road founder Ross Ulbricht (aka Dread Pirate Roberts), who was sentenced to life in prison for running an underground online marketplace where more than 100,00 people, including drug dealers, conducted more than $200 million in illicit trade using bitcoin. ​ "I wanted to empower people to make choices in their lives and have privacy and anonymity," Ulbricht said at his sentencing hearing in May 2015. ​ A federal jury in Manhattan in February 2015 found him guilty of charges including distributing drugs through the internet and conspiring to commit computer hacking and money laundering. Comparing Friedman with Libertarians ​ The Libertarian Party, which has advocated for drug legalization, had pushed for Ulbricht's release, calling the case an example of government overreach. ​ They both believe in transparency, the sanctity of contracts, which entails the problem of externalities, and the advisability of small government. ​ The primary difference between the two is that, at the end of the day, Friedman accepts the idea that businesses must accept societyÕslawsw and customs, even if they disagree with them. ○​ Is Personhood a Good Analogy? The Rise of Anti-Football ​ The new Argentinean approach to soccer was best embodied by the success of a provincial club, Estudiantes de la Plata, whose style devolved into what became known as “anti-football” in 4 stages: ○​ Superior preparation, organization, pragmatism ○​ Gamesmanship, e.g., psyching out opponents ​ Eliminating the line between public and private, e.g., one player, Carlos Billardo, who was an M.D., used his contacts to dig up private information about the players and even their wives. Treachery to the point of violence. Estudiantes The Reaction  ​ Until the match against Milan, both the press and the political leadership largely supported Estudiantes’ method of “mass production and convincing results” as being suffused with “effort, vitality, and sacrifice.” ​ But the Milan match was described as “deformed” and Estudiantes were found guilty of conducting “urban gorilla warfare.” ​ Three players were summarily jailed and the goalkeeper, Poletti, was Banned for life. ○​ Are Corporations Psychotic? Universal Declaration of Human Rights ​ Human rights, e.g., not to be tortured ​ Political rights, e.g., the right to vote, express political views, and even run for office. Equal opportunity ​ The right to equal treatment before the law ​ Social rights, e.g., the right to education ​ Economic rights, e.g., Article 23: “Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” International Law ​ “The merchant has no country.”--Thomas Jefferson ​ With the emergence of a global business community, exchanges of goods, services, and intellectual property on a global level are now routine. ​ International law can be defined as a body of law—formed as a result of international customs, treaties, and organizations—that governs relations among or between nations. International Labor ​ National v. International Law ​ The major difference between international law and national law is that a nation’s government authorities can enforce its national law. ​ What government, however, can enforce international law? By definition, a nation is a sovereign entity—meaning that there is no higher authority to which that nation must submit. Enforcing International Law ​ If a nation violates an international law and persuasive tactics fail, other countries or international organizations have no recourse except to take coercive actions. ​ Coercive actions may include economic sanctions, severance of diplomatic relations, boycotts, and, as a last resort, war against the violating nation. Sources of International Law ​ International customs—” a general practice accepted as law.” ​ Treaties and international agreements--an agreement or contract between two or more nations that must be authorized and ratified by the supreme power of each nation. International organizations--generally refer to an organization that is composed mainly of member nations and usually established by treaty. ​ The US is a member of more than 100 bilateral and multilateral organizations, including at least 20 through the UN. 3 International Principles 1.​ The Principle of Comity--one nation will defer to and give effect to the laws and judicial decrees of another country, as long as they are consistent with the law and public policy of the accommodating nation. ○​ The act of state doctrine--the judicial branch of one country will not examine the validity of public acts committed by a recognized foreign government within its territory. ○​ Expropriation occurs when a government seizes a privately owned business or privately owned goods for a proper public purpose and awards just compensation. ○​ Confiscation occurs when a government seizes private property for an illegal purpose or without just compensation. ○​ Because the possibility of confiscation may deter potential investors, many countries provide insurance or guarantee that foreign investors will be compensated if their property is taken. ○​ In a case alleging that a foreign government has wrongfully taken the plaintiff’s property, the defendant government has the burden of proving that the taking was an expropriation, not a confiscation. 2.​ The Doctrine of Sovereign Immunity--Unless certain conditions are satisfied (see below), foreign nations are not subject to the jurisdiction of US courts.  ○​ When the foreign state has waived its immunity either explicitly or by implication. ○​ When the foreign state has engaged in commercial activity within the US or in commercial activity outside the US that has “a direct effect in the United States.” 3.​ The Doctrine of Sovereign Immunity--When certain conditions are satisfied, foreign nations are not subject to the jurisdiction of US courts. ○​ When the foreign state has committed a tort in the US or has violated certain international laws. ○​ When a foreign state that has been designated “a state sponsor of terrorism” is sued under the Foreign Sovereign Immunities Act (FSIA) for “personal injury or death that was caused by an act of torture” or a related act of terrorism. Ways to Do International Business ​ The simplest way is for U.S. firms to export their goods and services to markets abroad. ○​ In direct exporting, a U.S. company signs a sales contract with a foreign purchaser that provides for the conditions of shipment and payment for the goods. ○​ In indirect exporting a U.S. company sets up a specialized marketing organization in that country. ​ When a U.S. firm prefers to limit its involvement in an international market, it will typically establish an agency relationship with a foreign firm, which can enter into contracts in the foreign location on behalf of the principal (the U.S. company). ​ When a foreign country represents a substantial market, a U.S. firm may wish to appoint a distributor located in that country. The U.S. firm and the distributor enter into a distribution agreement. ​ The advantages of manufacturing abroad may include lower costs, fewer government regulations, and lower taxes and trade barriers. ○​ Typically, U.S. firms establish manufacturing plants abroad if they believe that doing so will reduce their costs—particularly for labor, shipping, and raw materials. ○​ A domestic firm may engage in manufacturing abroad by licensing its technology to an existing foreign company. Alternatively, it may establish overseas subsidiaries or participate in joint ventures. ​ A U.S. firm may license a foreign manufacturing company to use its copyrighted, patented, or trademarked intellectual property or trade secrets.  ○​ Its terms require a payment of royalties on some basis—such as so many cents per unit produced or a certain percentage of profits from units sold in a particular geographic territory. ​ When a wholly owned subsidiary is established, the parent company, which remains in the U.S. retains complete ownership of all the facilities in the foreign country, as well as complete authority and control over all phases of the operation. ○​ In a joint venture, the U.S. company owns only part of the operation. The New York Convention ​ A U.S. court will compel the parties to arbitrate their dispute if all of the following are true: ○​ There is a written (or electronically recorded) agreement to arbitrate the matter ○​ The agreement provides for arbitration in a convention signatory nation. ○​ The agreement arises out of a commercial legal relationship. ​ One party to the agreement is not a U.S. citizen. In other words, both parties cannot be U.S. citizens. Export Controls ​ Although the U.S. Constitution provides in Article I, Section 9, that “No Tax or Duty shall be laid on Articles exported from any State,” Congress uses a variety of other methods to restrict or encourage exports. ○​ Export quotas: Congress sets export quotas on various items, such as grain being sold abroad. ○​ Restrictions on technology exports: Under the Export Administration Act, the flow of technologically advanced products and technical data can be restricted. ○​ Incentives and subsidies: Incentives and subsidies are used to stimulate some exports and thereby aid domestic businesses. Import Controls ​ Import restrictions include strict prohibitions, quotas, and tariffs. ○​ Countries restrict Imports for several reasons, including to protect national security, to further foreign policy objectives, and to protect domestic businesses (sometimes including labor). ○​ Dumping, for instance, is the sale of imported goods at “less than fair value.” Anti-Trust Laws ​ The goal of the Sherman Act is to protect consumers, competitors, and (American) employees from cartels that conspire to engage in monopolistic behavior. ○​ Section 1 of the Sherman Act--Any conspiracy that has a substantial effect on U.S. commerce is within the reach of the Sherman Act. ​ That means the law applies even if the violation occurs outside the U.S., and foreign governments as well as businesses can be sued for violations. Other Relevant Laws ​ The Alien Tort Statute (1789) allows even foreign citizens to bring civil suits in U.S. courts for injuries caused by violations of international law or a treaty of the United States. ​ The major law regulating employment discrimination—Title VII of the Civil Rights Act—applies extraterritorially to all U.S. employees working for U.S. employers abroad. ​ Space Law ○​ For the first 50 years of space exploration, national governments conducted most of those activities. ○​ Thus, space law was directed primarily at governments and government activities. ​ More recently, private companies have undertaken some space-related activities and broadened access to outer space for the rest of us. Source & Purpose of Space Law ​ International space law consists of international treaties—primarily negotiated by the United Nations (U.N.)—and U.N. resolutions. ​ These sources recognize fundamentally that activities conducted in outer space and the benefits derived from those activities should improve the welfare of all nations and all humanity. The Outer Space Treaty ​ The most important treaty is generally referred to as the Outer Space Treaty: ○​ Article I and Article II, outer space is declared to be free for exploration and use by all nations. ○​ In addition, space objects are to be used exclusively for peaceful purposes. ○​ Article II of the Outer Space Treaty bans the national appropriation of territory in space.  ○​ Article VIII, however, provides that a state party to the treaty retains jurisdiction over objects on its space registry that are launched into space. The U.S. Commercial Space Launch Competitiveness Act ​ The U.S. Commercial Space Launch Competitiveness Act is aimed at encouraging commercial spaceflight companies. ○​ It streamlines regulatory processes and promotes safety standards. ​ In addition, the law provides that if a U.S. citizen or company retrieves minerals or other resources from an asteroid or other space location, that person or company owns them. ​ The U.S. Commercial Space Launch Competitiveness Act granted private citizens property rights over asteroid resources that they obtain from space. Space and National Security ​ Currently, under U.S. regulations, all spacecraft are classified as “defense articles,” which restricts the transfer of space technology and related information to any foreign person or nation. Slide Deck 7 Export Controls ​ Although the U.S. Constitution provides in Article I, Section 9, that “No Tax or Duty shall be laid on Articles exported from any State,” Congress uses a variety of other methods to restrict or encourage exports. ○​ Export quotas: Congress sets export quotas on various items, such as grain being sold abroad. ○​ Restrictions on technology exports: Under the Export Administration Act, the flow of technologically advanced products and technical data can be restricted. ○​ Incentives and subsidies: Incentives and subsidies are used to stimulate some exports and thereby aid domestic businesses. Import Controls  ​ Import restrictions include strict prohibitions, quotas, and tariffs. ​ Countries restrict Imports for several reasons, including to protect national security, to further foreign policy objectives, and to protect domestic businesses (sometimes including labor). ​ Dumping, for instance, is the sale of imported goods at “less than fair value.” Anti-Trust Laws ​ The goal of the Sherman Act (1890) is to protect consumers, competitors, and (American) employees from cartels, that is, two or more companies, that conspire to engage in monopolistic behavior. ○​ Section 1 of the Sherman Act--Any conspiracy that has a substantial effect on U.S. commerce is within the reach of the Sherman Act. ​ That means the law applies even if the violation occurs outside the U.S., and foreign governments as well as businesses can be sued for violations. Other Relevant Laws ​ The Alien Tort Statute (1789) allows even foreign citizens to bring civil suits in U.S. courts for injuries caused by violations of international law or a treaty of the United States. ​ The major law regulating employment discrimination—Title VII of the Civil Rights Act—applies extraterritorially to all U.S. employees working for U.S. employers abroad. Defining Real Property ​ Real property consists of land and the buildings, plants, and trees that are on it. ​ Real property often includes subsurface and some airspace rights, as well as personal property that has become permanently attached to the real property. ○​ Whereas personal property is movable, real property—also called real estate or realty—is immovable. Subsurface ​ Subsurface rights can be extremely valuable, as these rights include the ownership of minerals, oil, and natural gas. ​ In many states, land ownership may be separated, in that the surface of a piece of land and the subsurface may have different owners.  ​ If the owners of the subsurface rights excavate (dig), they are liable if their excavation causes the surface to collapse. Fixtures ​ Fixture —an item affixed to realty, meaning that it is attached to the real property permanently. The item may be embedded in the land or permanently attached to the property or another fixture on the property using cement, mortar, bolts, nails, roots, or screws. ○​ Fixtures are included in the sale of land if the sales contract does not provide otherwise. Rights of Property Ownership ​ Fee simple--Ownership of real property (as well as personal property) can be viewed as a bundle of rights, including the right to possess the property and to dispose of it by sale, gift, lease, or other means. ○​ On the free simple owner’s death, the interests in the property descend (pass down) to the owner’s heirs, even in the absence of a will. ​ The rights that accompany a fee simply include the right to use the land for whatever purpose the owner sees fit. ​ Of course, other laws, including applicable zoning regulations, noise regulations, and environmental laws, may limit the owner’s ability to use the property in certain ways. Transfer of Ownership ​ Ownership interests in real property are frequently transferred (conveyed) by sale, and the terms of the transfer are specified in a real estate sales contract. ​ Real property ownership can also be transferred by deed, by will or inheritance, by adverse possession, or by eminent domain. Real Estate Sale Contracts ​ A contract for a sale of land includes such terms as the purchase price, the type of deed the buyer will receive, the condition of the premises, and any items that will be included. ​ Real estate sales contracts can be made contingent on the buyer’s ability to obtain financing at or below a specified rate of interest. ​ The contract may also be contingent on certain events, such as the completion of a land survey or the property’s passing one or more inspections.  ​ Normally, the buyer is responsible for having the premises inspected for physical or mechanical defects and insect infestation. Implied Warranty of Habitability ​ Under this warranty, the seller of a new home essentially warrants that it is in reasonable working order and is of reasonably sound construction. ○​ In some states, the warranty protects not only the first purchaser but any subsequent purchaser as well. ​ Most courts impose on sellers a duty to disclose any known defect that materially affects the value of the property and that the buyer could not reasonably discover. Deeds ​ Possession and title to land are passed from person to person using a deed —the instrument of conveyance of real property. ​ Gifts of real property are common, and they require deeds even though there is no consideration for the gift. ○​ A defect of title exists, for instance, if an undisclosed third person has an ownership interest in the property. Adverse Possession ​ A person who wrongfully possesses the real property of another (by occupying or using it) may eventually acquire title to it through adverse possession. ​ Adverse possession is a means of obtaining title to land without delivery of a deed and without the consent of—or payment to—the true owner. ​ Essentially, when one person possesses the property of another for a certain statutory period-- —between 3 and thirty years-- that person acquires title to the land. Adverse Possession Requirements ​ Possession must be actual and exclusive. The possessor must physically occupy the property. This requirement is met if the possessor lives on the property, but it may also be met if the possessor builds fences, erects structures, plants crops, or even grazes animals on the land. ○​ Possession must be open, visible, and notorious, not secret or clandestine. Adverse Possession Requirements ​ Possession must be continuous and peaceable for the required period. ​ Continuous does not mean constant. It simply means that the possessor has continuously occupied the property in some fashion for the statutory time. ○​ Peaceable means that no force was used to possess the land. ​ The possessor cannot be living on the property without the owner’s permission and must claim the property against the whole world. Reasons for Allowing Adverse Possession ​ These include society’s interest in resolving boundary disputes; determining title when title to property is in question; and ensuring that real property remains in the stream of commerce. ​ More fundamentally, the doctrine punishes owners who do not take action when they see adverse possession and rewards possessors for putting land to productive use. ○​ How Not to Argue? Eminent Domain ​ No ownership rights in real property can ever really be absolute because the government has an ultimate ownership right in all land. ​ Eminent domain is sometimes referred to as the condemnation power of government, based on the U.S. Constitution and the laws of each state, to take land for public use whenever the public interest requires it. ○​ Property normally may be taken only for public use, not for private benefit. Eminent Domain Process ​ After the government determines that a particular parcel of land is necessary for public use, it will first offer to buy the property. ○​ If the owner refuses the offer, the government brings a judicial (condemnation) proceeding to obtain title to the land. ​ Condemnation proceedings usually involve two distinct phases—the first to establish the government’s right to take the property, and the second to determine the fair value of the property. The Taking  ​ Under the takings clause of the Fifth Amendment to the U.S. Constitution, the government may take private property for public use with just compensation, based on fair market value, to the property owner. ○​ SCOTUS has ruled that the power of eminent domain can be used to further “economic development.” ○​ However, SCOTUS recognizes the right of individual states to pass laws that prohibit takings for economic development, and most states have done so. ​ Still, some states do allow takings for the redevelopment of economically stressed neighborhoods and, controversially, for the promotion of recreational activities. Landlord-Tenant Relationships ​ The rights and duties of landlords and tenants generally pertain to four broad areas of concern: ○​ The possession, use, and maintenance of the leased property and, of course, rent. ​ Under this covenant of quiet enjoyment, the landlord promises that during the lease term, neither the landlord nor anyone having a superior title to the property will disturb the tenant’s use and enjoyment of the property. ○​ If it is breached, the tenant can terminate the lease and sue for damages. Eviction ​ Constructive eviction occurs when the landlord wrongfully performs or fails to perform any of the duties the lease requires, thereby making the tenant’s further use and enjoyment of the property exceedingly difficult or impossible. Use Maintenance ​ The tenant normally may make any use of the leased property, provided the use is legal and does not injure the landlord’s interest. ​ The parties are free to limit by agreement the uses to which the property may be put, e.g., restrictions on pets or smoking inside. Maintenance ​ Tenants are responsible for any damage to the premises that they cause, intentionally or negligently, and may be held liable for the cost of returning the property to the physical condition it was in when the lease began.  ○​ Unless the parties have agreed otherwise, tenants are not responsible for ordinary wear and tear and the property’s consequent depreciation. ​ Landlords assume the implied warranty of habitability, which includes repairing the defect and deducting the cost from the rent, canceling the lease, and suing for damages. Rent ​ Usually, tenants must pay the rent even if they refuse to occupy the property or move out, as long as the refusal or the move is unjustified and the lease is in force. ○​ If an apartment building is destroyed, most state laws do not require tenants to continue to pay rent. ○​ In some situations, such as when a landlord breaches the implied warranty of habitability, a tenant may be allowed to withhold rent as a remedy. Transferring Rights to Leased Property ​ Either the landlord or the tenant may wish to transfer the rights to the leased property during the term of the lease. If a landlord transfers complete title to the leased property to another, the tenant becomes the tenant of the new owner. ​ Tenants who transfer their entire interest in the leased property to a third person have agreed to an assignment of the lease. ○​ Many leases require the landlord’s written consent for an assignment to be valid. Assignment ​ The landlord can nullify (avoid) an assignment made without the required consent and evict the assignee. ○​ A landlord who knowingly accepts rent from the assignee may be held to have waived the consent requirement. ○​ An assignment does not release the original tenant (the assignor) from the obligation to pay rent should the assignee default. Subleases ​ The tenant’s transfer of all or part of the premises for a period shorter than the lease term is a sublease. ​ If the landlord’s consent is required, a sublease without such permission is ineffective.  ○​ Also, like an assignment, a sublease does not release tenants from their obligations under the lease. Space Law ​ For the first 50 years of space exploration, national governments conducted most of those activities. ○​ Thus, space law was directed primarily at governments and government activities. ​ More recently, private companies have undertaken some space-related activities and broadened access to outer space for the rest of us. Protecting the Environment ​ The National Environmental Policy Act (NEPA) requires that an environmental impact statement (EIS) be prepared for every major federal action that significantly affects the quality of the environment: ○​ The impact that the action will have on the environment. ○​ Any adverse effects on the environment and alternative actions that might be taken. ○​ Irreversible effects the action might generate. Common Law Actions ​ Even before there were statutes and regulations explicitly protecting the environment, the common law recognized that individuals have the right not to have their environment contaminated by others. ​ Under the common law doctrine of nuisance, persons may be held liable if they use their property in a manner that unreasonably interferes with others’ rights to use or enjoy their property. Nuisance ​ To obtain relief from pollution under the nuisance doctrine, a property owner may have to identify a distinct harm (a “private” nuisance) separate from that affecting the general public. ○​ A public authority (such as a state’s attorney general), though, can sue to stop or reduce a “public” nuisance. The Clean Air Act ​ The Clean Air Act provides the basis for issuing regulations to control multistate air pollution.  ○​ It covers both mobile sources of pollution (such as automobiles, e.g., requiring car manufacturers to increase MPHs for vehicles) and stationary sources of pollution (such as electric utilities and industrial plants). ​ The Clean Air Act requires the EPA to list all regulated hazardous air pollutants on a prioritized schedule. The Clean Water Act ​ the Clean Water Act (CWA)—established the following goals: ○​ make waters safe for swimming, ○​ protect fish and wildlife, and ○​ eliminate the discharge of pollutants into the water. ○​ Regulations generally specify that the best available control technology, or BACT, be installed. Greenhouse Gases ​ Although greenhouse gases, such as carbon dioxide (CO2), are generally thought to contribute to global climate change, the Clean Air Act does not specifically mention CO2 emissions. ​ Therefore, the EPA did not regulate CO2 emissions until 2009, after the Supreme Court ruled that it had the authority to do so. Class Deck 8 What Is a Tort? ​ A tort is a category of law involving either negligent or intentional conduct that results in harm or injury to a person or property. ​ Unlike criminal law, in which a penalty or jail time might be imposed, a tort might result in an award of money (damages) from the person or organization (the defendant) that caused injury or harm. Negligence  ​ Negligence occurs when someone sustains personal injury, but there is no intent to cause injury. ○​ The injured person (the plaintiff) may initiate a negligence lawsuit in which she seeks money for the injury, e.g., cases involving slips and falls, automobile accidents, and work-related accidents. ○​ Most negligence cases never go to trial because the attorneys and their clients settle them before then. 4 Elements of Negligence ​ All of the rules, or parts of the case, that must be proved are often called elements: ○​ Standard of care ○​ Breach of duty ○​ Causation ○​ Cause in Fact ○​ Proximate Cause ○​ Injury (damages) Forms of Sexual Harassment ​ Quid quo pro (a favor or advantage granted or expected in return for something) harassment—Êrefers to a direct exchange where someone in a position of power offers a job benefit (like a promotion) in exchange for sexual favors. ​ Hostile environment sexual harassment occurs when repeated unwelcome sexual behavior creates an intimidating or offensive work atmosphere, regardless of whether the harasser holds a position of power (1) Standard of Care ​ Negligent conduct occurs when a defendant fails to meet his duty or responsibility (standard of care) for the protection of others and, as a result, causes another to be injured or harmed. ○​ For example, the owner of a health gym must provide a reasonably safe environment for those using the gym. How to Judge Standard of Care? ​ Case Precedent: Courts refer to the outcomes and facts of prior cases to determine the standard of care (the duty or responsibility of the plaintiff). ○​ This doctrine provides stability and predictability in the law. ○​ It is also flexible because some courts may overrule prior decisions in cases in which public policy or other relevant legal matters dictate the need for change. Judging Standard of Care  ​ Rules and Regulations: The standard of care might be written in a rule put forth by a regulatory agency. ○​ For example, rules governing sliding in high school baseball games or the number of lifeguards required for a pool of a certain size. ​ State and federal laws: Legislation may mandate certain standards. ○​ For example, in some states, fitness centers and high school athletic departments are required to have automated external defibrillators (AEDs) on the premises. ​ Community practice or industry standard: The standard of care might be influenced by what others in the industry (i.e., industry standards) or community are doing. ○​ For example, do other softball complexes in the city or state adhere to certain safety practices or have similar safety features at their facilities? Judging Standard of Care ​ Federal regulatory agencies: Certain federal agencies may have guidelines and recommendations relevant to sport safety with a bearing on the standard of care in sport negligence cases. ○​ For example, the Consumer Product Safety Commission has guidelines regarding the safety of table saws. ​ Professional associations: Position statements are often published by organizations such as the National Athletic Trainer’s Association (NATA) might provide guidelines on adequate hydration or equipment safety. ​ Agency and organization policy: An agency’s policies and procedures might be used in determining whether it met its standards. ​ Expert opinion: The opinions of forensic experts from various fields might be used to help a court determine the standard of care. ​ Negligence Per Se (by or in itself): If it is set forth by statute. ○​ For example, state law prohibits the sale of alcohol to minors. Suppose that a 17-year-old becomes intoxicated after drinking beer that was sold illegally by store staff and then causes a driving accident. ​ In such a case, the plaintiff need only prove the elements of causation and actual harm, elements 3 & 4) to prevail in court. ​ Strict liability, or liability without fault, involves acts that depart from a reasonable standard of care and cause injuries. ○​ Under the doctrine of strict liability, liability for injury is imposed for reasons other than fault.  ○​ For instance, even if blasting with dynamite is performed with all reasonable care, there is still a risk of injury. Because of the potential for harm, the person who is engaged in an abnormally dangerous activity—and benefits from it—is responsible for paying for any injuries caused by that activity. Relationship Must be Relevant ​ A person or organization’s duty (standard of care) is triggered by the relationship with the injured person (the plaintiff). Certain relationships automatically give rise to a duty to protect another person from an unreasonable risk of harm. ○​ For example, although a swimming pool patron is under no legal obligation to rescue a fellow swimmer in distress, lifeguards are responsible because of the nature of their relationship with the patron (the lifeguard’s job is to render assistance). Assuming Responsibility ​ Although a person has no general duty to come to someone’s aid, after someone voluntarily begins to render assistance, she must proceed with reasonable care. ○​ For example, a coach attending a game as a spectator sees a player collapse on the field and decides to render aid. If the player has a neck injury and the off-duty coach (spectator) moves the player and aggravates the injury, the coach may be liable for negligence even though he did not have a duty to render aid based on a player-coach relationship. (2) Breach of Duty ​ Breach of duty--the plaintiff must establish that the defendant failed to conform to the duty of care owed to the plaintiff. ​ To show that the duty of care was breached, the plaintiff must prove that the defendant’s conduct, viewed as of the time it occurred, imposed an unreasonable risk of harm. Breach of Duty Examples ​ Case precedent as the basis for breach. During a baseball game, a batted ball passes through a hole in the netting that was designed to protect spectators behind home plate and strikes an elderly spectator in the face, fracturing her jaw. ○​ Suppose that case precedent has determined that fans assume the risk of being struck by foul balls only when they sit outside protected areas but that stadiums must provide a safe environment behind netted areas. ​ Violation of rules and regulations: A county municipal health code regulation states that pools must always have a minimum of 6 lifeguards on duty for a pool of a certain size. 4 lifeguards are on duty when a child drowns in the pool.  ​ Violation of state or federal law: You operate a fitness facility in a state that requires all health and fitness centers in the state to have at least two AEDs on the premises and staff to be trained in the use of the AED. ○​ You also might be subject to the doctrine of negligence per se. (3) Causation as an Element of Negligence ​ Causation refers to the claim in a negligence case that the acts or inaction of the defendant brought about injury to the plaintiff. ​ A court might consider two types of causation, depending on the jurisdiction (state where the case is brought), when rendering decisions in negligence cases: cause in fact and proximate cause. Cause in Fact ​ Causation requires a finding that but for the defendant’s conduct, the plaintiff would not have been hurt. ○​ If the view of someone at a baseball game is obstructed by a mascot and that person is hit by a foul ball, would the spectator have been hit by the foul ball, or would he have had greater awareness to the extent that he could have seen the ball coming and avoided it? Multiple Causes in Fact ​ if the actions or omissions of multiple defendants each played a substantial factor in bringing about the plaintiff’s harm, then all the defendants would be deemed liable and the plaintiff may recover against any single defendant or all the defendants for compensation. ○​ For example, an accident is caused by a drunk driving minor who was sold all the beer he consumed by a stadium concessionaire. Proximate Causation ​ The proximate cause: defendants should not be liable for all the consequences of their actions. ○​ There are two conflicting applications of the policy. ○​ The direct causation view: defendants are liable for all consequences of their negligent acts if no superseding intervening causes occur. ○​ The foreseeability or scope of risk view: Plaintiff must prove that the injury was foreseen by the defendant, or reasonably should have been foreseen, and was the natural and probable result of the negligence (4) Injury ​ For any cause of action based on negligence, some real (actual) physical or emotional harm must exist.  ​ Proof of damage is an essential part of the plaintiff’s case in negligence because negligent conduct in and of itself does not rise to the type of interference with the interests of society as a whole to warrant a complaint. ○​ For example, If I drove to the ballpark drunk but did not injure anyone, I could be tried criminally but not in civil court. Damages ​ The types of damages available depend on the circumstances but may include compensatory damages for physical pain and suffering, mental distress, direct economic loss, loss of consortium (see below), and wrongful death. ​ In some jurisdictions, a plaintiff may recover punitive damages against the defendant. Unlike compensatory damages, punitive damages are awarded to punish the defendant rather than compensate the victim. ○​ Punitive damages, however, are awarded only to punish outrageous, reckless, willful, or wanton conduct. ○​ Consortium--the loss or impairment of the intangible benefits of a relationship. Gross Negligence ​ Gross negligence is usually classified as unintentional negligence even though there was a failure to exercise even the care that a careless person would use. ​ It is still not usually considered intentional because most jurisdictions distinguish between acts that are willful, wanton, or reckless and those that involve gross negligence. ○​ For example, when I drove I was not trying to hurt anyone, but I would have been subject to a gross negligence claim if I had. Defending Against Negligence Claims ​ Since plaintiffs must show all 4 elements of negligence to prevail, defendants in negligence actions can prevail against a plaintiff’s negligence suit if they show that any of the required elements have been met. Assumption of Risk ​ Assumption of risk is a legal defense by which plaintiffs may not recover for injuries in negligence when they have voluntarily exposed themselves to known and appreciated dangers. 3 elements to the assumption of risk must be established: ○​ The risk must be inherent to the activity, risks that cannot be removed from an activity without fundamentally altering the nature of the activity. ​ The participant must voluntarily consent to be exposed to the risk.  ​ The participant must know, understand, and appreciate the inherent risks of the activity. Express and Implied Assumption of Risk ​ Express assumption of risk occurs when the participant uses language to evidence that he has assumed the risks of an activity. ​ Implied assumption of risk exists when the participant’s conduct or actions show that he voluntarily assumed the risks by taking part in the activity. ○​ For example, Lynn Swann played organized football throughout childhood and high school, and now he has decided to play in a recreational adult football league. Simply by playing in the league, Paul assumes risks that he has known, understood, and appreciated for many years. Contributory Negligence and Comparative Fault ​ Contributory negligence precludes recovery for the plaintiff if the plaintiff is negligent and their negligence contributes proximately to their injuries. ​ Most jurisdictions have adopted comparative negligence, a system that apportions damages according to the degree to which each party (plaintiff and defendant) is at fault. ○​ A pure comparative fault system is one in which plaintiffs recover no matter how negligent they are. More Defenses ​ Unforeseeable consequences are the results of actions or situations that could not have been predicted or foreseen by a reasonable person, e.g., freak accidents. ​ Waivers can be used to inform the participant of the risks, e.g., of an adventure sport, and potentially free the organization from liability. Intentional Torts ​ Unlike the tort of negligence, in which a careless act is committed, an intentional tort is what its name implies—a tort (civil wrong resulting in harm to person or property) that is committed with intent. ​ Committing an intentional tort does not mean that a person meant harm or had an evil motivation. ○​ Instead, intent means that a person (the defendant) intended the consequences of the act or knew with substantial certainty that a particular consequence (specific outcome) would result from the act. Examples of Intentional Torts  ​ The types of situations that might result in or be construed as intentional torts include making verbal threats, touching someone without his permission, spreading rumors, dealing with abusive patrons inappropriately, holding someone against his will, and entering the land or taking the property of another without his permission. ○​ Torts involve harm to persons or property Harm to Persons ​ Such harm can be in the form of physical injury, emotional injury, or damage to a person’s reputation. ○​ In civil law, battery involves touching someone, whereas assault is the threat to touch someone. Battery ​ Battery is generally defined as the intentional, harmful, or offensive touching of another that is unprivileged and unpermitted. ​ Intent comes into play in terms of the person’s intent to make contact with another, either directly or indirectly (e.g., throwing a baseball at a group of spectators). ○​ You don’t have to bruise or physically hurt someone to commit battery, because battery includes both harmful touch and touch that is merely offensive. Assault ​ The importance of assault is that an organization might be held liable, for example, for the acts of an employee who threatens to touch another in a harmful or offensive way. Defamation ​ A defamation lawsuit proposes that someone has been injured because of something written (called libel) or spoken (slander) about her that was untrue or false, harmful, and made known to another person. Defamation ​ Published means that a third person, someone other than the person making the statement and the person affected by the statement, hears or reads what is said. ​ Public figures generally have less protection for untrue and negative statements made about them, that is, actual malice or a reckless disregard for the truth must be shown. Defamation ​ Some categories of defamatory statements are potentially more libelous than others, such as ○​ statements about someone’s moral character (e.g., falsely calling someone a child molester) ○​ statements about a person’s chastity (e.g., accusations of sexual promiscuity)  ○​ statements that a person has a “loathsome disease” ○​ and statements that affect a person’s occupation and profession. False Imprisonment ​ Does not require actual confinement ​ A person is “imprisoned” merely if he believes that he cannot leave a certain location (e.g., a child is told by an adult to stay in one place for an unreasonable length of time, or someone believes that she cannot leave an area without being harmed). False Imprisonment ​ Supervisors should usually consult with counsel or at least ask questions like the following: ○​ Did you have reasonable suspicion to detain the person? ○​ Was the person detained for a reasonable length of time? ○​ Were the use and amount of force reasonable? ○​ Was the person brought back from a reasonable distance outside the business after leaving the premises? Intentional Infliction of Emotional Distress ​ Occurs when someone intentionally commits an act that represents extreme and outrageous conduct and results in severe emotional distress to another person. ​ The person (the defendant in a lawsuit) intended to commit the outrageous act, and the injury is severe and emotional, not physical, e.g., sexual harassment or a practical joke that goes well beyond the bounds of decency. Invasion of the Right to Privacy ​ Building on Federal and state laws that guarantee privacy, the intentional tort of the invasion of the right to privacy provides further recourse for those who have been harmed in any of the following 4 ways: ​ Appropriation occurs when someone uses, without permission and for her benefit, the name, likeness, or other identifying characteristic of another person, e.g., putting the image of Olivia Rodrigo on t-shirts and selling them to the public. Invasion of the Right to Privacy 1.​ Intrusion (also called intrusion on seclusion arises when someone invades a person’s home or searches personal belongings without permission, e.g., a coach searches the backpack of a player on an opposing team with the hope of finding performance-enhancing drugs. 2.​ False light, which is similar to defamation and may be brought in tandem with a defamation lawsuit, involves putting a person in the public spotlight over untrue information e.g., a  newspaper article wrongly claims that a popular musician is a strong supporter of a racist organization. 3.​ Public disclosure of private facts arises when facts about a person’s private life, which an ordinary person would find objectionable, are made public. Harm to Property ​ Personal property consists of things that can be moved, such as sports equipment like soccer goals or smaller items like bats, helmets, and gloves. ​ Real property is both land and objects that are permanently attached to the land, such as fields, courts, and swimming pools. Real Property ​ Trespass occurs when a person intentionally enters the land of another or causes another person or object to enter the land of another, without permission or necessity. ○​ For the intentional tort of trespass to be found, actual physical harm to the property does not have to occur. ○​ The intent of this tort is not just to prevent harm to property but also to prevent people from interfering with the exclusive possession of a person’s or organization’s property. Personal Property ​ Trespass to personal property occurs when someone takes the personal (movable) property of another without the permission of that person. ○​ If she keeps the property in her possession, then she has committed the intentional tort of conversion. Disparagement of Property ​ Someone compares the property of another that is untrue and results in harm to the person in possession of the property. ○​ Slander of title occurs when someone makes false statements about the ownership or title of someone’s property. ○​ Slander of quality arises when someone makes false statements about the quality of someone’s product or merchandise.