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Page 1: BIZ LAW (1)
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State of Nature

Early humans lived in a STATE OF NATURE

Before Law Existed

Everyone was vulnerable to attack at any time

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Social Contract Theory

Social Contract •  Humans were born into an unorganized & lawless “State of Nature” •  In the interests of self-preservation & civilization, humans agreed to organize & chose to create governments

Bellum omnium contra omnes “The War of All Against All”

•  The State (Government) exists only to serve to will of the people •  The People are the source of all political power

“The state of men without civil society (which state we may properly call the state of nature) is nothing else but a mere war of all against all; and in that war all men have equal right unto all things” - Leviathan

Thomas Hobbes

Citizens surrender some freedoms & submit to the rule of the majority for the protection of their remaining rights.

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Social Contract

Social Contract describes the implied relationship between Citizens and their Government.

The Social Contract

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•  A body of enforceable rules that govern the relationships between individuals, & which establish the rights, duties, & privileges that are consistent with the values & beliefs of a society & its ruling group

•  There are numerous sources of American law

Rule of Law

What is Law?

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Federal

State/Local

____________

PRESIDENT

CONGRESS

Illinois LEGISLATURE

GOVERNOR

Hierarchy of U.S. Law

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Tripartite Checks

& Balances

Separation of Powers

Art. 1 - Congress Art. 2 - POTUS Art. 3 - Judiciary

Legislative Power Judicial Power Executive Power

•  President can sign or veto laws passed by Congress. •  Courts can strike down Congressional Legislation or Executive Administrative Law.

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Sources of

Legal Authority

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Organic Law

•  A   law  that  violates   the  U.S.  Constitution,   if   challenged,  will  be  declared  [by  the  Courts]  unconstitutional,  &  will  not  be  enforced  no  matter  what  its  source.

Constitution Bill  of  Rights +

The Founding Documents

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All  legislative  Powers  herein  granted  shall  be  vested  in  a  Congress  of  the  United  States,  which  shall  consist  of  a  Senate  and  House  of  Representatives

US Constitution – Article 1 Legislative

Vesting Clause Art. 1, Sec. 1

Legislative Statutory Law

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Enumerated Powers

of Congress

Art. 1, Sec. 8

The  Congress  shall  have  the  power  to: •  Lay  and  Collect  Taxes •  Borrow  Money •  Regulate  Commerce** •  Coin  Money •  Raise  and  Support  Armies •  Provide  and  Maintain  a  Navy

•  Make  all  Laws  which  shall  be                                  Necessary  and  Proper  for  carrying  into  execution  the  foregoing  powers

US Constitution – Article 1

____________ Necessary &

Proper Clause Art. 1, Sec. 8,

Cl. 18

Legislative Statutory Law

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President  can  sign  bill  into  law  or  veto  it.

Bill introduced in HOR

Bill introduced in Senate

Referred to House Committee or

Subcommittee

Vote by Full House Committee

House Floor Debate & Vote

Referred to Senate Committee or

Subcommittee

Vote by Full Senate Committee

Senate Floor Debate & Vote

A House-Senate conference committee

then writes a comprehensive bill.

That bill goes back to both Houses.

House & Senate vote on final

passage of bill. Approved bill is

sent to the President.

How a Bill Becomes Law

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ex. The Federal Trade Commission Act of 1914

How a Law is Published

1. Slip Laws

2. Session Laws

3. Codification

15 U.S.C. § 41

ß Final Form

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UCC

•  Comprehensive  Code  of  Commercial  Law •  Enacted  in  every  state  (except  Louisiana)

___________________________________________

Uniform Commercial Code

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ex. Uniform Commercial Code 810 ILCS 5/ et seq.

ex. Cemetery Oversight Act 225 ILCS 411/ et seq.

ex. Code of Civil Procedure 735 ILCS 5/ et seq.

ILCS

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US Constitution – Article 2 Executive

Vesting Clause Art. 2, Sec. 1

Executive Administrative Law

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Executive Agency/Dept.

Creation •  Congress creates administrative agencies by passing

statutes that contain ENABLING LEGISLATION •  Name •  Composition •  Purpose •  Powers

ex. 15 U.S.C. § 41

A commission is created and established, to be known as the Federal Trade Commission”

•  Day-to-Day enforcement & administration of the law is assigned to various Executive Departments & Agencies

Executive Administrative Law

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•  Title 42: The Public Health & Welfare •  Chapter 43: The Department of Health & Human Services

•  Subchapter 1: General Provisions •  Section 3501: Establishment of Department

Health Insurance Portability & Accountability Act of 1996

42 U.S.C § 3501 – Dept. of Health & Human Services

___________________________________________

42 U.S.C § 281 – NIH

42 U.S.C § 290aa – NIDA

Departments, Agencies,

Sub-Agencies ex.

Executive Administrative Law

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•  After an Agency is created with Enabling Legislation,

Congress vests that Agency with the power to make LEGISLATIVE RULES & REGULATIONS •  Published in the Federal Register

•  ex. 78 Fed. Reg. 58683 •  Codified in the Code of Federal Regulations (C.F.R.)

•  ex. 41 C.F.R. § 300

•  Agencies Investigate & Prosecute violations of law

•  Administrative Law Judges hold hearings & render decisions

Administrative Process

Executive Administrative Law

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Administrative Procedures Act

A federal statute that governs the procedures and practices of administrative law.

Legal Information Institute – Cornell Law School

§ 3 of the APA, 5 USC § 552, addresses the procedural formalities that agencies must employ when making decisions. There is a distinction made between (i) general regulations made through the process of rulemaking and (ii) case-by-case decisions made through the process of adjudication.

§ 10 of the APA, 5 USC §§ 701-706, deals with judicial review of administrative agency decisions. Reviewing courts determine whether agency officials acted in compliance with relevant federal statutes and whether the agency’s actions were “arbitrary, capricious, or an abuse of discretion.”

Governs the way in which Federal Administrative Agencies propose, establish, & enforce regulations:

Established a process for Federal Courts to directly review Agency acts & decisions:

“A Bill of Rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by Agencies of the Federal Government. It is designed to provide guarantees of Due Process to Administrative Procedure” – Sen. Pat McCarran (D-NV)

Also: Illinois APA 5 ILCS 100/ et seq.

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Judicial Common Law

Common Law

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Legal REFEREES

•  Whether someone’s actions create criminal culpability •  Whether someone’s actions violated someone else’s rights •  Whether a Legislative Statute is Constitutionally permissible •  Where an Executive Regulation is Constitutionally permissible •  Whether a lower court ruled improperly on an issue

Courts hold proceedings & render binding decisions about:

Courts = Legal Referees

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Judiciary Court

Structure

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SUBSTANTIVE

PROCEDURAL

Law that describes, regulates, & creates legal rights & obligations

Law that establishes the methods of enforcing the rights established by substantive law

ex. 21 U.S.C. § 812 – Marijuana: Schedule I drug Cocaine, Heroin, Opium: Schedule II drugs

ex. 28 U.S.C. § 1331– Federal Question original jurisdiction

_________________________________________________

CIVIL

CRIMINAL

Law dealing with the definition and enforcement of Private & Public Rights

Law that defines and punishes wrongful actions committed against the Public

ex. Tort Law (i.e. Battery, Assault, Negligence, etc.) & Contract Law

ex. Murder, Arson, Burglary, Rape, DUI, Vandalism, Littering

Classifications

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1. Trial Court CIVIL: Plaintiff (π) v. Defendant (∆) CRIM: State (Prosecutor) v. Defendant (∆)

Appellant v. Appellee Petitioner v. Respondent (also Trial level)

2. Appeal

•  Losing Party at the Trial Court level •  Seeks to have a Higher Court reverse OR set aside the Trial Court’s decision

Parties

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à Court order that forces a party to do something WHAT?

•  Compensate for violation of a Right •  Enforce of a Right •  Impose a Penalty

WHY?

_________________________________________________

Monetary compensation for π’s losses, injury, and/or pain OR restitutionary measures designed to restore π’s status to what it was prior to the violation of their rights

•  Injunction •  Specific Performance (Contract) •  Rescission (Contract) •  Declaratory Judgment

Civil Remedies

“DAMAGES”

When Money Damages are Inadequate

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Among the States =

What constitutes Interstate Commerce?

Commerce Clause Art. 1, Sec. 8,

Cl. 3

“To regulate Commerce with foreign Nations, and AMONG THE SEVERAL STATES, and with the Indian Tribes”

INTERSTATE COMMERCE

_________________________________________________

1.  CHANNELS of I.C. 2.  INSTRUMENTALITIES of I.C. 3.  THINGS in I.C.

and

4. ACTIVITIES HAVING A SUBSTANTIAL EFFECT on I.C.

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Channels, Instrumentalities,

Things

INTERSTATE COMMERCE

CHANNELS

INSTRUMENTALITIES

THINGS

Railroads, Highways, City Streets; Telephone, Gas, Electric, & Pipeline Systems; Radio & TV Broadcasting Stations; Rivers, Canals, & other Waterways; Airports; RR, Bus, Truck, or Steamship Terminals; Freight Depots, Bridges, Bays, Harbors, Docks, Wharves, Piers Ships, Vehicles, & Aircraft

Goods & People

29 C.F.R. § 776.29

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4 Supreme Court Commerce Clause

Eras

1. Early-1890s: Broadly Defined, Minimally Used 2. 1890s-1934/7: Narrowly Defined, States’ Rights (10th)

(Lochner era) 3. 1934/7-1990s: Expanded Scope, Limited States’ Rights

(Post-Lochner era) 4.  1990s-Present: Narrowing, Revive States’ Rights ???

(Modern era)

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Even if a person’s activity is entirely local,

and

Even though it may not be regarded as commerce,

It may still be reached by Congress if it exerts a substantial economic effect on Interstate Commerce.

Wickard v. Filburn, 317 U.S. 111 (1942)

Commerce Clause Art. 1, Sec. 8,

Cl. 3

INTERSTATE COMMERCE

The Commerce Clause has been interpreted broadly to permit the National Government to regulate non-enumerated things.

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Lochner Era

LOCHNER ERA Period of American legal history in which the Supreme Court (SCOTUS) struck down state & federal laws that attempted to regulate things like working conditions, wages, hours, etc.

Notable Cases

Lochner v. New York (1905)

Adair v. United States (1908)

Coppage v. Kansas (1915)

Hammer v. Dagenhart (1918)

Adkins v. Children’s Hospital (1923)

Nebbia v. New York (1934)

State law limiting weekly working hours

Fed. law prohibiting “yellow dog Ks”

State law prohibiting “yellow dog Ks”

Fed. regulation of child labor

Fed. Minimum Wage law

Fed. regulation of Coal Industry

West Coast Hotel Co. v. Parrish (1937) Fed. Minimum Wage law END of Lochner Era

Carter v. Carter Coal Co. (1936)

State law regulating milk prices

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Heart of Atlanta Motel 379 U.S. 241 (1964)

Civil Rights Act of 1964

ISSUE: Did the Commerce Clause authorize Congress to enact the 1964 CRA to outlaw Private Racial Discrimination?

SCOTUS Ruling: Yes, under the Commerce Clause, “the power of Congress to promote I.C also includes the power to regulate the

local incidents thereof, including local activities.”

•  Passed to outlaw PRIVATE racial discrimination •  Challenged in Federal Ct. by Owner of the HOA Motel •  Owner argued that his motel was a “purely local” business & NOT Interstate Commerce

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U.S. v. Lopez 514 U.S. 549 (1995)

SCOTUS Ruling: No, “The statute now before us [prevents] the States from experimenting and exercising their own judgment . . . and it does so

by regulating an activity beyond the realm of commerce”

•  Passed by Congress under the Commerce Clause

•  Made it illegal to knowingly possess a firearm within

1000 ft. of a school

ISSUE: Did the Commerce Clause authorize Congress to enact the 1990 GFSA for the safety of schoolchildren?

Guns-Free School Zones Act of 1990

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U.S. v. Morrison 529 U.S. 598 (2000)

SCOTUS Ruling: No, We “reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on

that conduct’s aggregate effect on Interstate Commerce”

Violence Against Women Act of 1994

•  Passed by Congress under the Commerce Clause (+ 14th E.P.)

•  Gave Victims of Sexual-Violence the ability to sue their attackers for damages

ISSUE: Did the Commerce Clause allow Congress to enact the 1994 WAVA to provide a remedy for victims of sexual violence?

“The Constitution requires a distinction between what is truly national and what is truly local”

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Gonzales v. Raich 545 U.S. 1 (2005)

Controlled Substances Act of 1970

•  1970 CSA made marijuana possession completely illegal under all circumstances*

•  In 1996, California passed Prop 215 •  Prop 215 gave terminally-ill patients legal

access to medical marijuana •  ∆s Monson & Raich had cancer and legally grew pot at home for personal medical use •  ∆ Monson’s home was raided by the DEA •  ∆s challenged the constitutionality of the CSA

ISSUE: Does the Commerce Clause authorize Congress to prohibit terminally-ill patients from growing medical marijuana purely

at home for their own personal consumption?

SCOTUS Ruling: YES, “Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic”

** Since Gonzalez v. Raich, 14 more states have legalized medical marijuana in defiance of the CSA & the Court’s ruling.

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“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the people”

State Police Powers

•  Enforce Criminal Laws (Generally) •  Pass laws to promote:

•  Public Order •  Health •  Safety •  General Welfare •  Morals

10th Amendment

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DORMANT Commerce Clause

States are not permitted to regulate Interstate Commerce.

The Commerce Clause has been interpreted by the Supreme Court to mean that the Federal Government has exclusive authority over regulating Interstate Commerce.

•  Generally, state laws that discriminate against Out-of-State economic interests are ruled unconstitutional •  Laws that treat In-State & Out-of-State economic interests differently are considered “discriminatory” •  Interstate Burden vs. Local Benefit Test

•  Congressional Authorization •  Market Participant

Dormant Commerce Clause

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“The states have no power . . . to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government”

McCullough v. MD 17 U.S. 316 (1819)

Supremacy Clause

Art. 6, Cl. 2

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding

_________________________________________________ ____________

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State Marijuana

vs. Supremacy

Clause

Despite the Supreme Court’s ruling in Gonzales v. Raich, 23 states & the District of Columbia have rejected Federal Marijuana Law (21 U.S.C. § 812)

(above pictograph source: http://medicalmarijuana.procon.org)

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Free Speech

“Congress shall make no law . . . abridging the freedom of speech”

The Freedom of Speech is not absolute, however.

Types of Unprotected Speech include: •  Inciting imminent Harm (yelling “fire” in a theater) •  Fighting Words •  Threats •  Obscenity (Miller test) •  Child pornography •  Torts

•  Defamation •  Invasion of Privacy •  Intentional Infliction of Emotional Distress (IIED)

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Regulating Speech

Free Expression may be subject to Reasonable T.P.M. Restrictions

Test

1. Forum Type?

2. Content-Neutral?

Public: traditionally associated w/ Public speech/expression Ltd./Designated Public: has been opened up for Public S/E

Nonpublic

YES NO

Private Forums

Narrowly Tailored to achieve a Significant Govt. Interest & Leaves Open Alternate Channels of Communication

Necessary to achieve a Compelling Govt. Interest & Narrowly Tailored in the Least Restrictive Means

Intermediate Scrutiny Strict Scrutiny

Private citizens may restrict speech on their property

Not traditionally associated w/ public S/E Has not been opened up for public S/E

_________________________________________________

Viewpoint Neutral & Reasonably Related to Legitimate Govt. Interest

Rational Basis Scrutiny

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Citizens United v. FEC 558 U.S. 310 (2010)

Bipartisan Campaign Reform Act of 2002 •  Law to regulate the financing of political campaigns

“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.”

“ . . . Political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.”

“We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.”

“The Court has recognized that First Amendment protection extends to corporations … [and] this protection has been extended by explicit holdings to the context of political speech.”

“Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”

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Commercial Speech

•  Speech where the speaker is engaged in commerce •  The audience is actual or potential customers •  The speech is commercial in nature

Content-based regulation of Commercial Speech is subject to INTERMEDIATE SCRUTINY

Commercial speech is granted less 1st Amendment protections than Non-commercial speech

*As opposed to Non-commercial speech, which requires content-based regulations to withstand Strict Scrutiny*

False or Misleading Commercial Speech is not protected by the 1st Amendment & can be outlawed entirely

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“Congress shall make no law respecting an establishment of religion”

The Establishment Clause

“Congress shall make no law . . . prohibiting the free exercise thereof”

The Free Exercise Clause

•  Prohibits the Government from establishing an official state-sanctioned religion.

•  Prohibits the Government from showing a preference for one religion over another.

Freedom of Religion

•  Protects the right of American citizens to hold (or not) any religious belief and engage in religious rituals

•  Also seems to allow for the violation of laws so long as the violation is made for religious purposes**

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Burwell v. Hobby Lobby 573 U.S. ___ (2014)

GINSBERG: (dissent) “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

Religious Freedom Restoration Action of 1993

GINSBERG: (dissent) “Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling governmental interest.” 42 U. S. C. §2000bb–1(a), (b)(2).”

GINSBERG: (dissent) “The First Amendment’s free exercise protections, the Court has indeed recognized, shelter churches and other nonprofit religion-based organizations. No such solicitude is traditional for commercial organizations. Indeed, until today, religious exemptions had never been extended to any entity operating in “the commercial, profit-making world.”

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Due Process

“No person shall . . . be denied of Life, Liberty, or Property without Due Process of law”

“Nor shall any state deprive any person of Life, Liberty, or Property without Due Process of law”

5th Amendment

14th Amendment

Applies to the Federal Govt.

Applies to the States

_________________________________________________

The Due Process Clause contained in both the 5th & 14th Amendments includes both Procedural Due Process & Substantive Due Process.

*Due Process refers to the conduct of legal proceedings according to established rules & principles for the protection & enforcement of personal rights, including notice & the right to a fair hearing before a neutral tribunal.

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Without Due Process

English court having both civil and criminal jurisdiction at the King’s discretion and noted for its secretive, arbitrary, and oppressive procedures, including compulsory self-incrimination, inquisitorial investigation, and the absence of juries. The Star Chamber was abolished in 1641 because of its abuses of power.

Any secretive, arbitrary, or oppressive tribunal or hearing

Black’s Law Dictionary 1537 (9th ed. 2009)

Black’s Law Dictionary 864 (9th ed. 2009)

•  A judicial inquiry; in a derogatory sense. •  A persistent grueling examination conducted without regard to

the examinee’s dignity or civil rights. •  In an inquisitorial system, the court takes an active part in the

prosecution/investigation, as opposed to an adversarial system where the primary role of the court is that of impartial referee.

Without Due Process

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William Wallace being stretched to “confess” to his crimes In the movie BRAVEHEART

Without Due Process

Without Due Process

DUE PROCESS prevents stuff like this from happening by requiring a fair hearing in front of a neutral judge

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Applying PDP

Procedural Due Process protects individuals when they are arrested or incarcerated.

Procedural Due Process also applies in a number of civil rights contexts where freedom of movement or the

exercise of a fundamental right is curtailed.

4th A – No unreasonable Searches or Seizures 5th A – No Double Jeopardy, No Forced Confessions (Miranda) 6th A – Right to counsel during Critical Stages once Adversarial Judicial Criminal Proceedings have commenced

An inmate has a liberty interest in not being transferred from prison to a mental institution; an inmate is entitled to notice, a hearing, & appointment of counsel before such a transfer. Vitek v. Jones, 436 U.S. 407 or 445 U.S. 480 (1980).

A prisoner has no liberty interest in not being transferred from prison to prison, so no notice or hearing is required before such a transfer. Olim v. Wakinekona, 461 U.S. 238 (1983).

A state may not terminate parental rights, thereby extinguishing a parent’s liberty interest in raising his or her child, unless it shows by clear & convincing evidence that a parent is unfit. Santosky v. Kramer, 455 U.S. 745 (1982).

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Procedural Due Process

The minimal requirements of notice and a fair hearing, if the taking of Life, Liberty, or Property may occur.

Has the government intentionally deprived

a person of Life, Liberty, or Property? No Procedural

Due Process Issue

YES

NO

Private Interest Affected

Govt. Interest + additional fiscal &

administrative burdens of additional

safeguards

Risk of erroneous deprivation of that

Private Interest under current

procedures

& & = Procedures Required to take L,L,P

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PDP v. SDP

Under Procedural Due Process analysis, a court is asked to determine the constitutionality of the procedures used when a government deprives an individual of Life, Liberty, or Property.

ex. A state law which terminates an individual’s welfare benefits without notice or a pre-termination hearing.

Under Substantive Due Process analysis, a court is asked to determine the constitutionality of a law or governmental action which abridges the rights of a class of individuals.

ex. A state law that prohibits women from having an abortion.

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Substantive Due Process

Requires laws & governmental acts to be fair & reasonable & in furtherance of a legitimate state interest.

•  The Constitution protects all individuals from laws & government action that abridge Fundamental Rights

•  SDP places limitations on what the Government may do in its legislative & executive capacities

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Lochner Era

LOCHNER ERA Period of American legal history in which the Supreme Court used SDP to strike down state & federal laws that abridged the “liberty to contract”

Notable Cases

Lochner v. New York (1905)

Adair v. United States (1908)

Coppage v. Kansas (1915)

Hammer v. Dagenhart (1918)

Adkins v. Children’s Hospital (1923)

Nebbia v. New York (1934)

State law limiting weekly working hours

Fed. law prohibiting “yellow dog Ks”

State law prohibiting “yellow dog Ks”

Fed. regulation of child labor

Fed. Minimum Wage law

Fed. regulation of Coal Industry

West Coast Hotel Co. v. Parrish (1937) Fed. Minimum Wage law END of Lochner Era

Carter v. Carter Coal Co. (1936)

State law regulating milk prices

Page 54: BIZ LAW (1)

Types of Rights

Enumerated Fundamental Rights

Non-Enumerated Fundamental Rights

Low-Level Liberty Interests

1st: Speech, Religion, Assembly, Press, Redress Grievances 4th: No unreasonable Searches or Seizures 5th: No double jeopardy, compelled confessions, eminent domain 6th: Counsel, Notice, Speedy Trial, Confront Witnesses 8th: No excessive bail or fines, No Cruel & Unusual punishment

Applied as aspects of liberty under the 5th & 14th A. DP Clause

Not listed in Constitution, but deemed Fundamental by SCOTUS

Care, Custody, Control of Children •  Choice of School

Privacy •  Marriage (only Man & Woman) •  Procreation •  Abortion •  Contraception (for everyone)

Vote •  Restricting Ballot Access •  No Poll Taxes

Interstate Travel Political Association

Strict Scrutiny: Compelling Govt. interest, narrowly tailored, least restrictive means; Burden shifts to Govt. once π shows an abridgement of a fundamental right

Police Officer’s Choice of Hairstyle Kelley v. Johnson, 425 U.S. 238 (1976) Registration of Rx Drug users on State list Whalen v. Roe, 429 U.S. 589 (1977)

No fundamental right to public education; state’s funding scheme is constitutional if it provides adequate minimum educational offerings in each school San Antonio Pub. School Dist. v. Rodriguez, 411 U.S. 1 (1973)

Non-fundamental rights may be abridged upon a showing of rationality by the State

Rational Basis Scrutiny: Legitimate Govt. Interest, Rational Basis for Law/Act

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Applying SDP

Identify which government is acting

Ascribe constitutional weight to the affected interest

Federal

State 5th Amendment

14th Amendment

Identify the interest abridged by Law or Governmental Act

Place the abridged interest in the Constitution.

•  Assert that it is an aspect of L,L, or P under the appropriate Due Process clause

Fundamental Right? Low-Level Liberty Interest?

Set the appropriate level of Scrutiny

Balance the abridgement of the individual right against the proffered

Government interest

FR = Strict Scrutiny All Others = Rational Basis S.

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SDP v. EP

Under Equal Protection analysis, the Court reviews legislation to see if the government is intentionally discriminating against a class of people entitled to special constitutional protection.

ex. A state law that prohibits minors from buying cigarettes.

Under Substantive Due Process analysis, a court is asked to determine the constitutionality of a law or governmental action which abridges the rights of a class of individuals.

ex. A state law that prohibits certain kinds of advertising on billboards.

Focus of scrutiny is on the CLASSIFICATION

Focus of scrutiny is on the INDIVIDUAL RIGHT being abridged.

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Equal Protection

“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

14th Amendment Equal Protection Clause only pertains to STATES & political subdivisions of states!

“Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive” Bolling v. Sharpe, 347 U.S. 497 (1954)

However, the 5th Amendment Due Process clause has been interpreted by the SCOTUS to include 14th A. Equal Protections

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Applying EP

Law intentionally treats people differently

Facially Discriminatory Law à Identify Class

Suspect Class Quasi-Suspect Class Non-Suspect Class

Race Ethnicity Alienage (Sometimes) Fundamental Rights

Gender Illegitimacy

Age, Marital Status, Wealth, Mental Status, Sexual Orientation, Socio-Economic Status, Alienage (sometimes)

Strict Scrutiny Intermediate Scrutiny Rational Basis S. Necessary to achieve Compelling Govt. Interest, Narrowly Tailored in the Least Restrictive Means

BURDEN: Shifts to Govt. after π shows discrimination against Suspect Class

Substantially related to an Important or Significant Govt. Interest BURDEN: Shifts to Govt. after π shows discrimination against Quasi-Suspect Class

Rationally related to a Legitimate Govt. Interest Law is presumed to be valid BURDEN: Stays with π

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The U.S. Constitution does not explicitly mention a general right to privacy

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

However, the Supreme Court has given various doctrinal bases for the existence of Constitutional rights of privacy.

The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read. Without those peripheral rights, the specific rights would be less secure.

In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.

Various guarantees create zones of privacy.

The right to privacy . . . Is a legitimate one.

Griswold v. Conn. 381 U.S. 479 (1965)

Constitutional Privacy Rights

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Sources of Privacy Rights

Non-Enumerated Constitutional Privacy Rights:

Marriage: Zablocki v. Redhail, 434 U.S. 374 (1978) Procreate: Skinner v. Oklahoma, 316 U.S. 535 (1942) Contraception: Griswold v. Conn., 381 U.S. 479 (1965) Unmarried C: Eisenstadt v. Baird, 405 U.S. 438 (1972) Minors C: Carey v. Pop. Services Intl., 431 U.S. 678 (1977)

Congressional legislation aimed at protecting privacy:

Privacy Act 5 U.S.C. § 552a Freedom Of Information Act (FOIA) 5 U.S.C. § 552 Illinois FOIA 5 ILCS 140/ et seq. Health Insurance Portability & Accountability Act 42 U.S.C. § 1320d-6 Right to Financial Privacy Act 12 U.S.C. § 3402 Electronic Communications Privacy Act 18 U.S.C. § 2511

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Work hard, Be honest, Be respectful, Love learning.

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