Constitutional Law 1776- Articles of confederation - No power to tax - No power to raise a military force - 1787- US Constitution 1791- Bill of Rights (First 10 Amendments) - Federalism Division between Federal and State Rights 10th Amendment: any power not given to the federal government is reserved to the states - Police Powers: for the general health, welfare, and safety of the citizens Marbury Vs. Madison (US Sup. Ct. 1803) John Marshall, the secretary of state for John Adams, was appointed to the head of the supreme court The Judiciary Act of 1789(federal law): gave supreme court the power to issue a writ of mandamus (written mandate) - Can congress pass a law giving another branch more power than it has under the constitution? NO. - First time a law was stricken down on the basis of unconstitutionality - JUDICIAL REVIEW!! - Judicial Activism - - Willingness to overturn precedent Brown v. Board of Edu (1954) - Willingness to create new fundamental rights Griswold v. Connecticut (1965) ● Penumbra of the BofR Willingness to expand fundamental rights Roe v. Wade (1973) - Lawrence v. Texas (2003) Judicial Restraint - Stare decisis- let the decision stand - Deference to the Leg. Branch - “Judging from the grave” ● Original intent of the founding fathers - Bowers v Hardwick (1986) This is the gay sex case from AP GOV!!!! Don't forget!!! Police entered private home and witnessed them in the throws of some recreational funtime Supreme Court LIBERALS CONSERVATIVE Sonia Sotomayor C.J. John Roberts Ketanji Brown Jackson Clarence Thomas Elena Kagan Brett Kavanaugh(Trump) Amy Coney Barrett(Trump) Samuel Alito Neil Gorsuch(Trump) 3 6 Commerce Clause!!! Art. I, Sec. 8 Interstate commerce-between or among the states (federal) Intrastate commerce-within one state (state) Concurrent jurisdiction-both state and federal law Dormant commerce clause-affects other states, you can’t disadvantage other states with laws that benefit your own state - - NLRB vs. Jones - Employment law varies from state to state Argued national defense issue trumps intrastate issues Art. II, Sec I Full Faith and Credit Clause Requires states to uphold documents such as Weddings, Divorces, Wills, etc. Bill of Rights 1st Amendment 1. Speech 2. Religion a. Establishment clause b. Free Exercise clause 3. Press 4. Assemble 5. Petition Govt Hierarchy of Speech 1. Political 2. Commercial 3. Obscenity a. Pornography? YES b. Obscenity? Child Porn. Beastiality. NO. Miller v. Calif (1973) all three must be present 1. Prurient appeal? 2. SLAPS? Scientific, Literary, Artistic, Political,or Social value? 3. Local Standards? 2nd Amendment 3rd Amendment 4th Amendment 5th Amendment 6th Amendment 7th Amendment 8th Amendment 9th Amendment 10th Amendment Contracts Types of contracts: - Academic - Leasing - Resident - Waiver - Employment Contract: a set of legally enforceable promises Elements of a Contract Definition/Examples 1. Agreement (Chap. 14) a. Offer b. Acceptance 2. Consideration (Chap. 15) Legally sufficient and bargained for 3. Capacity (Chap. 16) Both parties are competent and an adult 4. Legal Object/Legality (Chap. 18) “Meeting of the minds” - parties understood each other - intended to enter an agreement The US follows the objective theory of contracts. Objective theory: an agreement between parties is legally binding if, in the opinion of a reasonable person who is not a party to the contract, an offer has been made and accepted. SOURCES: 1. Common Law a. Majority Rules b. Minority Rules c. Exceptions 2. Uniform Commercial Code (UCC; Art. II-Sale of Goods) UCC-Sale of Goods vs. Common Law—Real Estate; service; Employment Bilateral vs. Unilateral Bilateral Contract: a promise for a promise Unilateral Contract: a promise for an act/performance Express vs. Implicit(In fact or In law) Implied In Fact: based on your actions you have entered into a contract whether you realize it or not Example: Tom the accountant did Linda’s taxes. Tom expects to be paid and Linda should know this. Linda, the defendant, had an opportunity to say no or change her mind about the service. They have entered into an implied in fact contract. Implied In Law(Quasi-Contract): the plaintiff conferred a benefit on the defendant. The defendant knew that a benefit was bestowed upon them. The defendant retained the benefit in which it would be unjust to not pay for it. Quantum meruit- if you are found to have had knowledge of the benefit being bestowed upon you without payment for it then you will have to pay what is determined by the courts to be equitable payment for the benefit Different kinds of contracts 1. Valid: all elements of the contract are present 2. Void: no contract at all 3. Voidable: a valid contract that can be terminated or ratified at the option of one party (ex: minor, fraud, duress) 4. Unenforceable agreement: the parties intend to enter into a valid contract but some legal requirement can’t be met deeming it unenforceable 5. Executory: a contract that has not yet been performed by one or both of the parties involved 6. Executed: a contract that has been performed by both parties 7. Formal: a. a contract under seal. 10 states allow for contracts to stand even without consideration if it is under seal. b. Recognizance-a bail bond. When you acknowledge in court that if you don’t show up to court that your bail bond will be handed over to the court. c. Letters of credit: very detailed contracts laying out steps for payment for very large payment exchanges electronically d. Negotiable instruments: a check, certificate of deposit 8. Informal: simple contracts. No formalities are required in drawing them up AGREEMENT: “Meeting of the minds” - parties understood each other intended to enter an agreement A) An Offer a) Intent-a serious objective intent b) Definite and certain terms c) Communicated to the offeree INTOXICATION - Voluntary - Involuntary Chapter 15- Consideration Accord (new agreement) and Satisfaction (payment) - Debt has to be UNLIQUIDATED - The amount of debt is disputed or disagreed upon - Creditor agrees to a reduced amount or property - Debtor pays the new amount Statute of Fraud - Contracts are unenforceable but not void - Once fully executed no writing is not a problem - Neither party may demand rescission 3 guideposts: - How reprehensible? - Ratio between harm suffered and the amount awarded - Civil or criminal, precedents used in similar cases Chapter 20: 1. Mitigation of damages: a party injured by a breach of contract may not recover for damages that they could have avoided with reasonable efforts a. Landlord/Tenant-joint and several liability b. Employment Law 2. Nominal Damages: Nominal damages are a token sum, such as one dollar, given to a plaintiff who can prove demonstrate that the defendant breached the contract, but cannot prove damages a. Think Taylor Swift suing for 1 dollar b. Fired but gets a better job c. To attach to other damages 3. Liquidated Damages: a clause in a contract stating in advance how much a party must pay if it breaches a. Two factors required: i. At the time the contract was created, it was very difficult to estimate actual damages ii. The liquidated amount is reasonable 4. Punitive Damages: punitive damages are NOT designed to compensate the injured party. Punitive damages are designed to: 1) punish the wrongdoer and 2) deter both the defendant and others similarly situated from acting in the same matter NEGLIGENCE 1) Duty 2) Breach of Duty 3) Causation a. Actual b. Proximate 4) Damages CHAP 43-Employment Discrimination “At will” employee - can quit or be fired for any/no reason with no notice Exceptions to “at will” 1. CBA-Collective Bargaining Agreement 2. Contract Employees TITLE VII Illegal Reasons 1. Protected Classes a. Where to find? i. Legislative (state + fed) ii. US/State Constitution iii. Case Law (Precedent) iv. Policies b. 1960-JFK vs. Nixon i. Civil Rights Act of 1964 1. Race 2. Religion 3. Sex 4. National Origin 5. Color c. Not Protected Class Under Civil Rights Act Originally i. Transgender ii. Sexual orientation 1. Both are now protected under Supreme Court Precedent Disparate Impact vs. Disparate Treatment 1. Prima facie 2. Legitimate, non-discriminatory business reason 3. Mere pretext Sexual Harassment 1. Quid pro quo 2. Hostile work environment a. Sexually charged environment i. Pervasive ii. Unwelcome (subjective; objective) b.
