18 Jan 1.? its a group work ,my topic is recommendations These cases are available in your textbook. Using information from this wee
its a group work ,my topic is recommendations
These cases are available in your textbook.
Using information from this week's readings and academic sources, answer the questions that correspond to each of the above case briefs in 500words (minimum):
Chapter 5 Business and the Constitution
Its Legal, Ethical, and Global Environment
Marianne M. Jennings
Business
11th Ed.
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The U.S. Constitution
Article I: Legislative Branch
Congress
House of Representatives
Senate
Article II: Executive Branch
President
Vice President
Article III: Judicial Branch
Creates U.S. Supreme Court
Authorizes Congress to create other courts
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The U.S. Constitution
Creates a System of Checks and Balances
Each branch has some power check over the others to keep any one from becoming too powerful
Examples
Nixon v. Administrator of General Services
Clinton v. Jones
Obama v. Alito
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The U.S. Constitution
Other Articles in the Constitution
Article IV: State Interrelationships
Article V: Procedures for Amendments
Article VI: Supremacy Clause
Article VII: State Ratification of the Constitution
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The U.S. Constitution
Bill of Rights
First: Freedom of speech
Fourth: Privacy
Fifth: Due process and self-incrimination
Sixth: Jury trial
Other Amendments
Fourteenth Amendment: Due Process and Equal Protection
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Role of Judicial Review
Determines the Rights Afforded by the U.S. Constitution
Determines the Scope of Rights
Plays Unique Role in Checks and Balances
Determines the appropriateness of the actions of other branches
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Limits of Economic Regulation
The Commerce Clause: Article I, Section 8
Standards for Federal Regulation of Interstate Commerce
Historical application
Initially, Court gave a narrow interpretation
Court held New Deal Legislation unconstitutional
Roosevelt proposed Court-Packing Plan
After these political battles, the court responded in NLRB v. Laughlin Steel with the affectation doctrine
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Limits of Economic Regulation
Economic Activity is an Economic Setting
e.g., Price Fixing by Multinationals
Economic Activity in a Non-Economic Setting
e.g., Loan Sharking on the Street Corner
Non-Economic Activity in an Economic Setting
e.g., Race Discrimination by a Hotel
Non-Economic Activity in a Non-Economic Setting
e.g., VAWA and Morrison?
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Table One – Part A
COMPARISON OF CONGRESSIONAL JURISDICTION FACTORS
CHILD LABOR WOMEN AND VIOLENCE
AWFUL; HORRIBLE 1. AWFUL; HORRIBLE
PERVASIVE 2. PERVASIVE
INSUFFICIENT 3. INSUFFICIENT
STATE ACTION STATE ACTION
BUSINESSES 4. MEN ARE DOING IT
WERE DOING IT
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Table One – Part B
CIVIL RIGHTS (LACK THEREOF)
CHILD LABOR GUNS IN SCHOOLS
1. DISPARATE 1. VIOLENCE IS AWFUL
2. UNSAFE–VIOLENCE 2. UNSAFE–VIOLENCE
3. INSUFFICIENT 3. INSUFFICIENT
STATE ACTION STATE ACTION
4. BUSINESSES 4. HIGH SCHOOL
WERE DOING IT STUDENTS DOING IT
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Table Two
The Factors of Wickard v. Filburn
Local Farmers
Individuals, But Still in Business
Local Commerce Affects Prices in National Market
National Economic Interest in Farm Products/Pricing
Combining Wickard with the decisions in Lopez and Morrison, we are able to develop a clear matrix on the Commerce Clause as depicted by Response to Razook Figure One and the specific examples listed in Razook Figure Two.
In the Lopez case, the court held that the act of having a gun on school property had no economic/commerce base and that federal laws could not regulate local school.
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Response to Razook Figure One
Congress May Regulated conduct Regulated conduct
Regulate is economic is performed by an
(commercial (commercial
character) character to actor)
Congress May Regulated conduct Regulated conduct
Not Regulate is non-economic is not performed by
an economic entity
(non-commercial
character)
Jennings Figure R-1
Examples of Congressional Authority/Non-Authority After Morrison and Lopez
Congress may regulate
Congress may not regulate
Congress may regulate
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Table Three
Application of the Economic/Non-Economic Actor/ Activity Test to Specific Regulations
Gun Possession
Gun possessor (actor) – non-commercial, Congress may not regulate
Act of gun possession – non-commercial, Congress may not regulate
Violence Against Women
Abuser (actor) – non-commercial, Congress may not regulate
Act of abusing – non-commercial, Congress may not regulate
Farm Regulation (Wickard v. Filburn)
Farmer (actor) – commercial (livelihood), Congress may regulate
Act of selling – commercial, Congress may regulate
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Table Three (cont’d)
Title VII Civil Rights Discrimination
Hotel/Restaurant Owner (actor) – commercial, Congress may regulate
Act of discrimination – non-commercial, Congress may regulate
Labor/Unions/OSHA
Actors are business – commercial, Congress may regulate
Or Unions Engaged in Business – commercial, Congress may regulate
Act of Work/Employment – commercial, Congress may regulate
Lending (loan sharking)
Actors are loan sharks – commercial, Congress may regulate
(Facilities are not great, but they are a source of loans)
Act of lending – commercial, Congress may regulate
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Limits of Economic Regulation
Case 5.1 National Federation of Independent Business v. Sebelius (2012)
The court found that the individual mandate violated the Commerce Clause
Court upheld the law on other grounds
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Limits of Economic Regulation
The Commerce Clause: Article I, Section 8
Standards for state regulation of commerce
If Congress has regulated, there is an overriding concern about the Supremacy Clause
If Congress has not acted, there is a benefit/burden analysis
Balance police power (state’s interest in regulation) with the burden on commerce
State law cannot give in-state businesses an advantage
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Limits of Economic Regulation
Case 5.2 Rowe v. New Hampshire Motor Transport Association (2008)
Maine passed a law that prohibited anyone other than a Maine-licensed retailer from accepting an order of tobacco
The law required a special receipt, signed by someone over the age of 18 that showed a Maine-licensed dealer had received the tobacco
Out-of-state shippers and tobacco sellers challenged the Maine law as favoring Maine sellers
Court grapples with the purpose of the law and the burden on commerce
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Limits of Economic Regulation
Congressional Regulation of Foreign Commerce
The power of Congress to regulate foreign commerce applies regardless of where it begins and ends
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Taxation of Business
Congress’ Power to Tax – Article I, Section 8: The Ability of Congress to Tax Has Been Consistently Upheld
State and Local Taxation of Interstate Commerce
Interstate business is not exempt from state and local taxes just because they are interstate businesses
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Taxation of Business
Requirements for Valid State Tax
Tax cannot discriminate against interstate commerce
Tax cannot be an undue burden on interstate commerce
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Requirements for Valid State Tax
Must be a “sufficient nexus” between the state and the business being taxed
Examples: Does business there, holds property titles there, manufactures there, inventory stored there
Must be apportioned fairly
Example: A corporation doing business in fifty states cannot have all income taxed in all fifty states – must be apportioned according to its revenues in the states
Taxation of Business
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Case 5.3 New Mexico Taxation & Revenue Department v. BarnesandNoble.com LLC (2012)
Explain Barnes and Noble’s operations
Is there a physical presence sufficient for taxation?
Taxation of Business
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The “Jock Tax”
Discuss the allocation of athletes’ income tax among cities and states and the formulas used.
What constitutional issues do you see?
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State vs. Federal Regulation
The Supremacy Clause and Preemption
Article VI exists to determine which laws control in the event both state and federal governments regulate the same thing
If state law directly conflicts with federal law, state law is invalid
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The Supremacy Clause and Preemption
Whether there is preemption is controlled by answering several questions:
What does legislative history provide?
What is the level of detail in the federal regulation?
What benefit flows from the federal regulation?
What is the nature of conflict − can the two laws survive?
State vs. Federal Regulation
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Case 5.4 Mutual Pharmaceutical Co., Inc. v. Bartlett (2013)
Federal law regulates labels for prescription drugs
State law provides product liability rights of recovery for failure to warn
Federal law does not allow generic producers to change label by manufacturer, so they cannot include additional disclosures
State law was pre-empted by federal regulation – no product liability
State vs. Federal Regulation
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First Amendment
Provides some protection for commercial speech
Commercial speech is speech used to further the economic interests of the speaker
Advertising and commercial speech protection
Can regulate advertising
Substantial government interest must be furthered
Is the regulation the least restrictive means of accomplishing the interest
Bill of Rights
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First Amendment Full Protection
First Amendment Protections
and Business Speech
Business Political Speech
Governmental Regulation of Commercial Speech
Business Advertising
Bill of Rights
Speech
on Social Issues and Business: Nike, Professions
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Bill of Rights
First Amendment
Commercial Speech Protections
Government regulation of commercial speech is permitted
Three-prong test:
Is there a substantial government interest in restricting speech?
Does the restriction accomplish the government goal?
Is there any other way to accomplish the government’s objectives?
Evolving area: Company political speech – Nike example
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Bill of Rights
First Amendment
Corporate political speech
Corporate participation in campaigns is given full First Amendment protection
Nike case was never fully litigated to determine whether advertising regulation could be applied to, for example, letters to the editor or columns by corporate executives about controversial issues that affect the company, such as Nike’s labor practices in other countries
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Bill of Rights
Case 5.5 Citizens United v. Federal Election Commission (2010)
Case returns to holding in Belotti case that First Amendment rights are not contingent on how much money or power the speaker holds
Some limits on campaign contributions are appropriate
Controls on time, place, and manner of speech in the lead-up to elections have too chilling an effect on speech and dissemination of information
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Eminent Domain
Eminent domain is the right of government to take private property for public purpose for just compensation
Public use examples: Highways, schools, urban redevelopment, limits on mining, historical preservation, economic development
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Requirements
Taking or regulating
Examples: Prohibitions on use, elimination of use
In Loretto v. Teleprompter Manhattan CATV Corp. et al. (1982)
In Nollan v. California Coastal Commission (1987)
In Lucas v. South Carolina Coastal Council (1992)
Eminent Domain
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Eminent Domain
Just Compensation
Public Purpose
New issue is question of taking property for economic development or revitalization or just new projects
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Eminent Domain
Case 5.6 Kelo v. City of New London (2005)
Issue of taking for economic development
Who owned the land?
Who would get the land under the city’s plan?
What question in eminent domain was a problem for the court?
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Requirement: Procedural Due Process
Applies to criminal, civil, and administrative proceedings
Example: Summons and complaint provide notice to defendants
Right to notice of hearings
Right to be heard
The Raisin Farmers case: Horne v. U.S. Dept. of Agriculture
Procedural Due Process
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Requirement: Substantive Due Process
State laws cannot substantively eliminate rights without some benefit
Law must be logically related to legitimate governmental purpose
Example: Sunday blue laws − stores are closed by law − states must be able to show economic, health, social benefits of such closure
Substantive Due Process
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Equal Protection
Elements of Protection for Regulation
Regulation must apply to all businesses
Example: Courts have struck laws that allow small stores to stay open on Sunday while large stores could not
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Vague statutes and regulation violate substantive due process standards
FCC v. Fox Television Stations
Needed clearer standards for obscenity
The Cookie Monster case and substantive due process and free speech
Substantive Due Process
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International Law and Constitutions
General Types of Constitutions Found in the United States and England
Code Law Countries Found in Mexico and Many European Countries
Islamic Law: Based on Religion, Governs All Aspect of Personal and Business Life Law
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Unauthorized reproduction and distribution is an infringement of copyright. Contact us for permissions: [email protected] or 734-615-9553
Volkswagen’s Clean Diesel Dilemma
case W04C84 revised November 1, 2016
Published by WDI Publishing, a division of the William Davidson Institute (WDI) at the University of Michigan.
©2016 Christopher Monti, Vitor Lira, Jefferson Sanchez, and Namit Jhanwar. This case was written under the supervision of Andrew Hoffman (Holcim Professor of Sustainable Enterprise at the Ross School of Business) at the University of Michigan by graduate students Christopher Monti, Vitor Lira, Jefferson Sanchez, and Namit Jhanwar. Secondary research was performed to accurately portray information about the featured organization and to extrapolate the decision point presented in the case; however, company representatives were not involved in the creation of this case.
“Regardless of whether there is an upturn or a downturn going on, our goal is to ensure the Volkswagen Group reaches the top of the automotive industry by 2018 — in both economic and ecological terms.” 1
— Martin Winterkorn CEO, Volkswagen Group
Marti
