Business Law Chapter 4

Front 1

Declaration of Independence

Back 1

Document that declared independence from England in 1776

Front 2

Articles of Confederation

Back 2

Created a federal Congress composed of representatives from the 13 new states. Particularly weak document that gave limited power to the newly created federal government. Didn't provide congress the power to levy and collect taxes, to regulate commerce with foreign countreis, or to regulate interstate commerce.

Front 3

US Constitution

Back 3

The fundamental law of the US of A. Ratified in 1788. Serves 2 major functions: 1. Creates the three branches of the fed govt. and allocates powers to these branches. 2. Protects individual rights by limiting government's ability to restrict those rights.

Front 4

Federalism

Back 4

The US form of government, in which the federal government and the 50 state governments share p[owers.

Front 5

Enumerated powers

Back 5

Certain powers delegated to the federal government bythe states. Powers that are not SPECIFICALLY delegated to the fed. govt. are reserved to the state government.

Front 6

Legislative branch

Back 6

The part of the US gov. that makes federal laws. It is known as congress (the Senate and House of Re[persentatives)

Front 7

Executive branch

Back 7

The part of the US government that enforces the federal law; it consists of the Supreme Court and other federal courts.

Front 8

Judicial branch

Back 8

The part of the US government that interprets the law. It consists of the Supreme court and other federal courts. Responsible for interpreting the US const. and fed law.

Front 9

Checks and balances

Back 9

A system built into the US const. to prevent any one of the three branches from becoming too powerful.

Front 10

Supremacy clause

Back 10

A clause of the US const. which establishes that the US constitution and federal treaties, laws, and regulations are the supremem law of the land. State and local laws that conflict with federal lw are unconstitutional.

Front 11

Preemption doctrine

Back 11

The concept that federal law takes precedence over state or local law.

Front 12

Commerce Clause

Back 12

A clause of the US const that grants congress the power "to regulate commerce with foreign nations, and among the several states, and with Indian tribes. This clause was intended to foster development of a national market and free trade among the states. Now days the commerce clause has been interpreted to include activities that affect interstate commercec.

Front 13

Interstate commerce

Back 13

Commerce that moves between the states or affects commcerce betwen the states.

Front 14

Effects on interstate commerce test

Back 14

The regulated activite idoes not itself have to be in interstate commerce. Thus, any local interstate activity that has an effect on interstate commerce is subject to federal regultation. Theoretically this test subjects a substantial amount of business activity to a federal regulation.

Front 15

Police power

Back 15

Power that permits states and local governments to enact laws to protect or promote the public health, safety, morals, and general welfare.

Front 16

Unduly burden interstate commerce

Back 16

A conept which says that states may enact laws that protect or promote the public health, safety, morals, and general welfare, as long as the laws do not unduly burden interstate commerce.

Front 17

Dormant Commerce Clause

Back 17

State and local laws are unconstitutional if they place an undue burden on interstate commerce. This allows congress to challenge state and local laws under the fact that they burden interstate commerce.

Front 18

Bill of Rights

Back 18

The first 10 amendments to the constitution added in 1791.

Front 19

First amendment

Back 19

Freedom of speech "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging th 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.

Front 20

10th amendment and what it means for us

Back 20

Powers not delegated to US by COnst, nor prohibited by the states are reserved to the states or the people.

Front 21

Fully Protected Speech

Back 21

Speech the government cannot prohibit or regulate. Political speech is an example. Cannot pass a law preventing the pres. from being criticized.

Front 22

Limited protected speech

Back 22

Two types offensive speech and commercial speech

Front 23

Offensive speech

Back 23

Speech that is offensive to many members of society. It is subject to time. place, and manner restrictions. "fighting words, incitement of illegal activities, Obscenity" NOT PROTECTED AT ALL.

Front 24

Commercial Speech

Back 24

Speech used by businesses such as advertising. It is subject to time, place, and manner restrictions. Three characteristics of this type of speech: 1. advertisement of some form. 2. refers to a specific product. 3. speaker has an economic motivation for the speech.

Front 25

Commercial speech test

Back 25

1. Is advertising false or deceptive or of illegal activities? If yes unconstitutional if no:
2. Is the government's restriction justified by a substantial government interest? If yes step 3 if no then law restricting it is unconst.
3. Does the law directly relate to the govt.'s interest? If yes continue. If no then law restricting speech is unconst.
4. Is regulation no more extensive than necessary to achieve the govt's interest? IOf no then the state law is in violation of freedom of speech.

Front 26

Unprotected speech

Back 26

Speech that is not protected by the First amendment and may be forbidden by govt. 1. dangerous speech, fighting words that are likely to provoke a hostile response from someone, speech that invites violent or revolutionary overthrow of the govet. defamatory language. obscene speech

Front 27

Obscene speech

Back 27

Speech that 1) appeals to the pruient interst 2) depicts sexual conduct in a patently offensive way and 3) lacks serious literary, artistic, or scientific value. Problem no good definition they said in one case that the judge would know it when he saw it.

Front 28

Freedom of religion

Back 28

protected by first amendment

Front 29

Establisment clause

Back 29

A clause to the first amendment that prohibits the government from either establishing a state religion or promoting one religion over another.

Front 30

Free Exercise Clause

Back 30

A clause to the first amendment that prohibits the government from interfering with the free exercise of religion in the US.

Front 31

Fourteenth Amendment

Back 31

An amendment added to the US const. that contains the due process, equal protection, and privileges and immunities clauses.

Front 32

Equal protection clause

Back 32

A clause within the 14th amendment which provides that a state cannot deny any person within its jurisdiction the equal protection of the laws. Prohibits goverment from enacting laws that classify and treat "similarly situated" persons differently.

Front 33

Standards of Review.

Back 33

If someone brings a case against equal protection.
1. Strict scrutiny test: Govermnet regulation based on suspect class (race) will only be upheld if it is NECESSARY to promote a COMPELLING state interest and it is NARROWLY TAILORED to achieve the result. (Government bears burden of proof)
2. Intermediate Scrutiny: A test that is applied to classifications based on protected classes other than race, i.e. sex, age. Law will be upheld if it is SUBSTANTIALLY related to an IMPORTANT government interest. (Government bears burden of proof.)
3. Rational Basis: A test applied to classifications not involving a suspect or protected class. Rare that a regulation cannot meet this standard. Test will hold law valid if there is any RATIONAL or REASONABLe basis on wihch the classification might relate to a LEGITIMATE government interes. Burden of proof goes to challengeer of the law.

Front 34

Strict Scrutiny

Back 34

Strict scrutiny test: Govermnet regulation based on suspect class (race) will only be upheld if it is NECESSARY to promote a COMPELLING state interest and it is NARROWLY TAILORED to achieve the result. (Government bears burden of proof)

Front 35

Intermediate Scrutiny

Back 35

Intermediate Scrutiny: A test that is applied to classifications based on protected classes other than race, i.e. sex, age. Law will be upheld if it is SUBSTANTIALLY related to an IMPORTANT government interest. (Government bears burden of proof.)

Front 36

Rational Basis Test

Back 36

Rational Basis: A test applied to classifications not involving a suspect or protected class. Rare that a regulation cannot meet this standard. Test will hold law valid if there is any RATIONAL or REASONABLe basis on wihch the classification might relate to a LEGITIMATE government interes. Burden of proof goes to challengeer of the law.

Front 37

Due process Clause

Back 37

A clause in the fifth amendment which provides that no person shall be deprived of life liberty or property without due process of law. There are 2 types of due process 1. substantive due process and 2. proceedural process.

Front 38

Substantitive due process

Back 38

A category of due process which requires government statutes, ordinances, regulations, or other laws be clear on their face and not overly broad in scope. The test is if a reasonable person can understand the law so they could abide by it.

Front 39

Proceedural due process

Back 39

A category of due process which requires that the government give a person proper notice and hearing of the legal action before that person is deprived of life liberty or process.

Front 40

Privileges and immunities lcuase

Back 40

A clause that prohibitsstates from enacting laws that unduly discriminate in favor fo their residents.

Front 41

Pleading the fifth

Back 41

in a criminal case it is impermissable to penalize an individual who relies on the 5th amendment. For example the prosecuter cannot argue or the court suggest the jury can infer guilty from a defendant's decision not to testify.
However, in a civil case they can take the fifth however, lawyers are allowed to say oh they didn't testify so they must be guilty. If it is waived at first ti is waived all the way throgh.