Chapter 4
Constitution Law and U.S. Commerce
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ROAD MAP
o Constitution Law and U.S. Commerce
o Learning Objectives:
o (1) Discuss separation of powers and checks
and balances among the three branches of
government
o (2) Explain how the Constitution resolves
conflicts between state and federal laws
o (3) Describe the role between business and the
Bill of Rights
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Learning Objective
(1) Discuss separation of powers and checks and
balances among the three branches of
government
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The Constitution
o A constitution is the basic law of a nation or
state.
o The U.S. Constitution provides the
organization of the national government.
o Each state also has a constitution that
determines the state’s governmental structure
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The Constitution
• The U.S. Constitution is the supreme law
of the land.
• If a law conflicts with the Constitution,
the law is unconstitutional.
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The Constitution
o The biggest rule laid down in the Constitution
is the separation of powers
o Separation of powers: The division of
enumerated powers of government among
separate branches, typically the legislative,
executive, and judicial
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The Constitution
o Bill of Rights: The first ten amendments
to the U.S. Constitution
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Learning Objective
(2) Learn how the Constitution resolves
conflicts between state and federal laws
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Federalism
o Article I of the Constitution establishes the
legislative branch through a bicameral
legislature – a legislature with two chambers,
or houses
o The lower House of Representatives has 435
members, with representation spread
proportionately to a state’s population.
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Federalism
o As a check on the majority will, and on the
power of larger states, the Senate is a smaller
body
o One hundred members; less frequent
elections
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Federalism
o The House retains the right to impeach
officials for “high crimes and misdemeanors,”
and the Senate tries such impeached officials
o Impeach: To formally accuse an elected
official of misconduct
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Federalism
Federalism refers to the division and sharing of power
between state and federal governments.
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Federalism
o Article II of the Constitution establishes the
executive branch of government.
o Article II sets forth some of the mechanisms
for becoming president.
o It is the only place in the Constitution that
prescribes a specific oath of office.
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Federalism
o The Constitution’s deliberate ambiguity on the
powers of the president left much room for
debate on how strong the executive branch
should be
o Unitary executive: A theory in
constitutional law that the president controls
the entire executive branch, totally and
completely.
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Preemption
o The doctrine that permits federal law to render
unenforceable conflicting state laws.
o When there is no direct conflict between state
and federal law, then the rules of preemption
state that courts must look to whether or not
Congress intended to preempt the state law
when it passed the federal statute.
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Preemption
• Preemption is the process by which a
court decides that a federal statute must
take precedence over a state statute.
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Learning Objective
(3) Examine the role between business
and The Bill of Rights
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Business and the Bill of Rights
o The Constitution does not contain the word
“corporation”
o As corporations have some characteristics of
being a “person,” various courts have held
that several of these civil rights also apply to
business entities
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Business and the Bill of Rights
o Some observations about civil liberties:
o There are no absolute rights, in spite of the
wording of any specific amendment.
o Instead of absolute rights, courts have to
constantly balance competing interests in
deciding where the limits of our rights lie.
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Business and the Bill of Rights
o The First Amendment protects the right to
freedom of speech
o Courts generally recognize political speech as
speech most deserving of protection
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Business and the Bill of Rights
o Political speech isn’t always written or
uttered—it can sometimes take place through
symbolic speech
o Symbolic speech: Speech that is not uttered
or printed but displayed or performed
instead
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Symbolic Speech
o Speech often includes not only what we say,
but also what we do to express our political,
social, and religious views.
o The courts generally protect symbolic speechgestures, movements, articles of clothing, and
other forms of nonverbal expressive conduct.
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Business and the Bill of Rights
o The First Amendment contains several
important clauses pertaining to speech
and religion.
o There are two different clauses on
religion.
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The Establishment Clause
o The establishment clause prohibits the government
from establishing a state-sponsored religion, as well
as from passing laws that promote (aid or endorse)
religion or that show a preference for one religion
over another.
o The Supreme Court has held that for a government
law or policy to be constitutional, it must be secular
in aim, must no have the primary effect of advancing
or inhibiting religions, and must not create an
excessive government entanglement with religion.
o Lemon v. Hurtzman, 403 U.S. 602 (1971)
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The Free Exercise Clause
o The free exercise clause guarantees that a
person can hold any religious belief that he or
she wants; or a person can have no religious
belief.
o When religious practices work against public
policy and the public welfare, however, the
government can act.
o For example, regardless of a child’s or
parent’s religious beliefs, the government
can require certain types of vaccinations.
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Business and the Bill of Rights
o Obscene: A legal standard that, if met, means
the work in question has no protection under
the First Amendment
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Obscenity
o In Miller v. California, the Supreme Court created a
test for legal obscenity, which involved a set of
requirements that must be met for material to be
legally obscene:
o (1) whether the average person finds that it violates
contemporary community standards (not national
standards, as some prior tests required),
o (2) the work, taken as a whole, appeals to the prurient
interest; and
o (3) whether the work lacks serious redeeming literary,
artistic, political, or scientific merit.
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Business and the Bill of Rights
o Equal Protection Clause: The portion of the
Fourteenth Amendment requiring states to
provide the equal protection of laws to persons
within their jurisdiction
o It is implicated anytime a law limits the
liberty of some people but not others
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Business and the Bill of Rights
o Legislation frequently involves making classifications
that either advantage or disadvantage one group of
persons, but not another.
o States allow 16-year-olds to drive, but don’t let 12year-olds drive. Indigent single parents receive
government financial aid that is denied to
millionaires.
o Obviously, the Equal Protection Clause cannot mean
that government is obligated to treat all persons
exactly the same–only, at most, that it is obligated to
treat people the same if they are “similarly
circumstanced.”
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END
o Chapter 4 PPT
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CHAPTER 6
Criminal Law
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ROAD MAP
Learning Objectives:
1. Discuss how criminal law differs from civil law
2. Identify constitutional protections afforded to those accused of
committing a crime
3. List defenses to crime
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Learning Objective
(1) Discuss how criminal law differs from civil law
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CRIME
•
Crime undermines confidence in social order and the expectations that we all have
about living in a civil society.
•
No crime is victimless.
•
Crime: A public injury.
•
Private citizens may not prosecute each other for crimes.
•
•
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The government collects the evidence and files charges against the defendant.
Indictment: A formal document in which the government accuses a legal person of a
crime.
CRIME
•
The civil tort system allows a victim to bring a civil suit against someone for injuries
inflicted on the victim by someone else.
•
Criminal laws and torts have parallel causes of action.
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•
Sometimes these claims carry the same or similar names.
COMPARISON BETWEEN CRIMINAL LAW AND CIVIL
LAW
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CRIME
• In a criminal case, the defendant is presumed to be innocent unless and until he or
she is proven guilty.
• Presumption of innocence: The presumption made about any criminal defendant prior to
verdict.
• Criminal defendants do not have to prove their innocence.
• If the state cannot prove its case, then the person charged with the crime will be
acquitted.
• Acquitted: To be found not guilty of a crime.
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CRIME
• A criminal case is the prosecution’s burden, and the prosecutor must prove its case
beyond a reasonable doubt.
• Burden of proof: A duty to prove.
• In a civil trial, the burden of proof is the plaintiff’s burden.
• Beyond a reasonable doubt: The standard of proof in a criminal trial.
• The evidence must be so compelling that there is no reasonable doubt as to the
defendant’s guilt.
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CRIME
• Mens rea: A guilty mind, or a criminal state of mind.
• Actus reus: The guilty act, or the criminal action.
• Comparison of criminal burden of proof to the standard of proof in a civil trial,
requires the plaintiff to prove the case only by a preponderance of the evidence.
• Preponderance of the evidence: The standard of proof in a civil trial.
• The evidence that supports the claim is more likely than not.
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CRIME
• More protections are afforded to the criminal defendant than are afforded to
defendants in a civil proceeding.
• Due process requirements in a criminal case are very high for anyone who is a defendant in
criminal proceedings.
• Due process: A constitutional guarantee of fairness by procedure.
• Due process procedures are not specifically set out by the Constitution, and they vary
depending on the type of penalty that can be levied against someone.
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Learning Objective
(2) Identify constitutional protections afforded to those accused of committing
a crime
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CONSTITUTIONAL RIGHTS RELEVANT TO CRIMINAL
PROCEEDINGS
• Although most crimes are state laws, many provisions of the U.S. Constitution’s Bill of
Rights apply to state prosecutions due to the incorporation doctrine.
• The Sixth Amendment guarantees that criminal defendants are entitled to an attorney
during any phase of a criminal proceeding where there is a possibility of incarceration.
• The Fifth Amendment guarantees the right to avoid self-incrimination.
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CONSTITUTIONAL RIGHTS RELEVANT TO CRIMINAL
PROCEEDINGS
• The Eighth Amendment prohibits cruel and unusual punishment.
• The Fourth Amendment provides a prohibition against illegal searches and seizures.
• Probable cause: The standard required for a search warrant to be issued. It arises when
there is enough evidence, such as through corroborating evidence, to reasonably lead to
the belief that someone has committed a crime.
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EXCEPTIONS TO THE REQUIREMENTS FOR A
SEARCH WARRANT
Plain view doctrine
• No warrant is required to conduct a search or to seize evidence if it
appears in the plain view of a government agent.
Exigent circumstances
• Exception to the warrant requirement, specifically when an
emergency exists, such as a hot pursuit.
Consent
• Exception to the warrant requirement, in which a person with valid
authority permits a search to proceed without a warrant.
Automobile exception
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• Exception to the warrant requirement, specifically when the vehicle
is detained pursuant to a lawful stop.
EXCEPTIONS TO THE REQUIREMENTS FOR A
SEARCH WARRANT
Lawful arrest
• Exception to the warrant requirement, specifically referring to a
pat-down search permitted when someone is lawfully arrested.
Stop and frisk
• Exception to the warrant requirement, specifically permitted
when a person is stopped for some permissible purpose by law
enforcement officers.
• Allows a pat-down search or a frisk.
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Learning Objective
(3) List defenses to crime
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DEFENSES
• Exclusionary rule: A means to suppress evidence that was obtained illegally.
• Custodial interrogation: Occurs when a suspect is in custody, which means that the
suspect cannot leave, and subject to interrogation.
• Miranda warnings: Read to persons in custody, so that they are made aware of some
of their constitutional rights.
• Double jeopardy: The government may not prosecute someone twice for the same
offense.
• It is prohibited by the Fifth Amendment to the U.S. Constitution.
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DEFENSES
• Lack of capacity:
• Insanity: A lack of capacity defense, specifically applicable when the defendant did not
understand that his or her actions were wrong.
• Infancy: A defense that may be used by persons who have not yet reached the age of
majority, typically eighteen years of age.
• The state will not induce someone to commit a crime that he or she did not already
have the propensity to commit.
• If the state does this, then the defendant will have the defense of entrapment.
• Entrapment: A defense that will be raised by a criminal defendant.
• Criminal: A legal person convicted of a crime.
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PUNISHMENT
• Length of incarceration varies depending on whether the conviction was for a
misdemeanor or a felony.
• Misdemeanor: A criminal offense that is less serious than a felony but more serious than
an infraction.
• Felony: A serious criminal offense, punishable with a prison sentence of more than one
year or, in some circumstances, death.
• Infraction: A criminal offense, which is less serious than a misdemeanor.
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PUNISHMENT
• When someone is convicted of violating a state criminal statute, the penalty will be
set by the statute.
• Federal Sentencing Guidelines: Created by the U.S. Sentencing Commission to
provide advisory guidelines to federal judges when sentencing criminals.
• The convicted criminal will be subject to various civil disabilities, depending on the
state in which he or she lives.
• Felon: A legal person convicted of a felony.
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FORMS OF PUNISHMENT
Fine
• Monetary penalty.
Restitution
• Penalty levied to repay to damages.
Forfeiture
• Involuntarily losing ownership of property that was used in criminal
activities.
Probation
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• Common penalty for committing crime, which means that the criminal
is under the supervision of the court but is not confined.
PUNISHMENT OF BUSINESS-RELATED CRIME
• White-collar crime: A term used to describe nonviolent crimes committed by people in
their professional capacity or by organizations.
• A corporation is a legal person, it is liable to be convicted of committing crimes.
• Not all constitutional protections afforded to individuals are available to corporations.
• In respect to goal of deterrence of future crimes, corporations can be punished.
• Corporations are deterred by the imposition of hefty fines.
• Corporations that are criminals lose much in the way of reputation.
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WHITE-COLLAR CRIME
• White-collar crime: Nonviolent crimes committed by people in their professional
capacity or by organizations.
• Committed for financial gain, through deception.
• Fraud: The use of deception to acquire money or property.
• Larceny: The trespassory taking of property with the intent to deprive the owner of it.
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TYPES OF FRAUD
• Financial institution fraud: Fraud against banks and other similar institutions, such as
credit unions.
• Money laundering: Occurs when funds gained from illegal activities are processed through
a seemingly legitimate business to clean the funds from association with criminal
activities.
• Ponzi scheme: A pyramid scheme, which is a particular type of fraud.
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FRAUD
• Owners of businesses are potential victims of white-collar crime.
• Embezzlement: Occurs when someone takes property that was in his or her
possession lawfully and then converts it to his or her own use.
• Forgery: A form of counterfeiting someone else’s signature or other document.
• Wire fraud: Fraud committed over interstate wire, such as by telephone.
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ORGANIZED CRIME
• The mafia is not the only type of organized criminal activity.
• Kickbacks: Incentive payments that are given to someone who makes decisions to
encourage others to pay for something.
• Racketeer Influenced and Corrupt Organizations Act (RICO): A federal statute that
penalizes racketeering activities.
• Bribery: Occurs when someone pays a government official to influence his or her
decision or actions in his or her official capacity for the benefit of the person paying
the bribe.
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ORGANIZED CRIME
• Foreign Corrupt Practices Act (FCPA): A federal statute that, among other things,
outlaws the payment of bribes.
• Grease payments: Payments given to speed up a process that will occur, rather than
to influence a decision.
• Blackmail: A form of extortion that occurs when someone threatens to reveal a
harmful truth, such as involvement in criminal activity, but agrees to remain silent if he
is paid.
• Extortion: When someone obtains property through coercion by threat of some future
action.
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ORGANIZED CRIME
• Perjury: Lying under oath.
• Obstruction of justice: Acting in a manner that creates obstacles to the administration
of justice.
• Antitrust laws: Laws that seek to prevent activities that reduce or eliminate economic
competition.
• Sherman Anti-trust Act: A federal statute prohibiting antitrust activities.
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CYBERCRIMES
• Cybercrimes: Crimes that are committed virtually.
• Crimes can range from non-white-collar crimes to traditional white-collar crime.
• Computer Fraud and Abuse Act: A federal statute that carries punishments for
compromising computers used in interstate commerce or communication.
• Unauthorized Access to Stored Communications Act: A federal statute to protect the
confidentiality of e-mail and voicemail.
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BLUE-COLLAR CRIME
• Blue-collar crime: A generic term used to describe crimes that are not white-collar
crimes.
• In business, property crimes are a primary concern.
• Property crime is a crime involving damage to property, while a person crime is a crime
involving the injury to a person’s body.
• Larceny:
• Shoplifting: Larceny of goods in a retail establishment.
• Employee theft: Larceny by employees.
• Vandalism: Willful or malicious destruction of property.
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END
Chapter 6 PPT
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