UNIVERSITY OF NORTH CAROLINA AT GREENSBORO
Bryan School of Business and Economics
Department of Accounting and Finance
ACC 688-11 Advanced Business Law (3 credit hours)
Tuesday/Thursday
6p-9:45p, Bryan 204
Summer (Second) 19 June 2014 --- 25 July 2014
Instructor: Samuel M. Moore
Office: 387 Bryan Building
Office Hours: By Appointment
Telephone: (336)334-5690 (no voice mail)
Email: smmoore@uncg.edu (best way to contact me)
Course Materials: Required Textbook: Business Law: Principles and Practices by Arnold J.
Goldman and William D. Sigismond. 6th edition and any edition thereafter is acceptable.
Optional Materials, but recommended: Business Law Legal Studies Exam Questions
and Explanations - Gleim & Ray. Any Edition from the Fifth forward.
Informational Materials: There are a number of Business Law books and textbooks and
casebooks available for reference and research if needed. One that has repeatedly proven useful is
Business Law: Text and Cases, Clarkson, Miller, Jentz, & Cross (Eleventh Edition, but earlier
editions are certainly acceptable). No book is required here; this is just a suggestion in case
someone wants to refer to a more detailed treatment of the material. It is suitable to be used as a
reference.
Course Objectives: To explore legal concepts and categories in the ever and quickly changing
area of Business Law. To develop skills at identifying issues and become familiar with the legal
resources available to explore the issues in their alternative possibilities. It is anticipated that the
course should enable the Student to be able to think and think legally and have a sufficient
grounding for further learning in the law if the Student so desires (because of interest or
necessity).
Assignments: (See details below - Functional Assignments) Students are responsible for
all assigned readings and other material assigned without regard to whether the material is
covered in class. Students are expected and required to be prepared for every class
(including the first class). The outline below (Functional Assignments) is intended as a
guideline and directional resource for the course. The instructor may (and probably will)
make modifications in content, schedule, and requirements as necessary or expedient in his
opinion to enhance the educational experience and learning objectives for the students.
Use of Course Web Site: Exam announcements, Short Essays, materials, additional
assignments, and any changes for this course will be made available on the University’s
Blackboard site at http://blackboard.uncg.edu. The Student is responsible for checking this site
for announcements, assignments, additional assignments, changed assignments, documents, and
other material and information relevant to the course. The Student is expected and required to
check UNCG email regularly.
Note: The material to be covered in this class is different and difficult; class preparation is very
time consuming; regular attendance is highly recommended; and, coming to class prepared is
crucial. Students are expected to be prepared for every class (including the first class). Do not
get behind. You may be called upon for recitation in class on a random basis (including briefing
cases).
Grading Scale: A = 100-93, A- = 92-90; B+ = 89-88; B = 87-83; B- = 82-80; C+ =
79-78; C = 77-70; Below 70 = F.
Grade Determination: The Final Grade in the course will consist of the average score obtained
on all the Exams and graded assignments. The average or accumulated score on required written
briefs (see below) will count as one graded assignment (i.e., one Exam grade). The extent and
quality of your preparation and participation and presentation may reflect on your final grade
(neutrally or positively or negatively).
Case Briefs: It will be required on certain designated cases (usually the more seminal or
important cases) that a written brief (typed, double-spaced) be prepared and handed in at the
beginning of the class in which the case is scheduled to be discussed. The average of the scores
on these graded briefs will count as one graded assignment (i.e., one Exam) in computing the
final grade. Briefs should be prepared in accord with guidelines handed out in class and/or other
available suitable instructions. In addition, but voluntary, briefing the cases appearing in the
assigned text or handed out or posted on Blackboard will prove invaluable for class recitation and
test review. These voluntary briefs will not be picked up in class; they are for your benefit.
Exams: Students are expected to take their exams as scheduled. There will be no make-up for
missed exams. Failing to show-up to take an exam as assigned or announced will result in a
grade of -0- for that exam. Exams may be cumulative. The schedule or date of exams will be
announced in class or posted on Blackboard.
Topics: The subject designations appearing below in Functional Assignments do not indicate
nor represent class periods nor meeting dates nor any order of presentation. The subject
designations are primarily and essentially for convenience of reference and designation and
identification. A subject may extend over more than one class period; more than one subject may
be covered and considered at one class meeting date.
It is planned and anticipated that the subjects marked with an asterisk (*) will be covered.
Subjects without an asterisk (*) may or may not be covered (as time permits). Subject
assignments will be announced in advance of the class in which they are to be discussed.
Academic Integrity: Students are expected to abide by the UNCG Academic Integrity Policy.
Readings: Readings are from the textbook unless otherwise noted. Additional materials for
class preparation will be assigned throughout the course. Most of these additional materials will
be posted on Blackboard. Be sure to check Assignments on Blackboard often and regularly.
FUNCTIONAL ASSIGNMENTS
The subjects appearing in this list which are assigned for class discussion usually will be
expanded in substantive content and detail to include textbook assignments, additional readings,
cases, and further developmental concepts and materials. The Expanded Subjects, sometimes
referred to or labeled as Expanded Topics, will appear on Blackboard in the Expanded Topic or
Expanded Subject entry.
INTRODUCTION*: Introduction to Course, Discussion of Syllabus, Class Expectations,
Course Requirements, Grading, Exams, and Introduction and Instruction on Briefing of Cases.
(See, Blackboard “A Brief Guide to Briefing Cases“ and “A Not-So-Brief Guide on How to
Brief Cases“.)
CONTRACTS*
WARRANTIES AND PRODUCT LIABILITY*
NEGLIGENCE AND STRICT LIABILITY IN TORT*
BUSINESS ASSOCIATIONS (Forms of Doing Business)*
INTELLECTUAL PROPERTY*
PERSONAL PROPERTY: SALES & LEASES AND SECURED TRANSACTIONS*
ADMINISTRATIVE LAW*
E-CONTRACTS AND CYBER LAW*
EMPLOYMENT RELATIONSHIPS*
BUSINESS INSURANCE*
FRANCHISES*
CREDITOR-DEBTOR RELATIONS & BANKRUPTCY*
SECURITIES REGULATION
NEGOTIABLE INSTRUMENTS
PROMOTING COMPETITION (Trade Practices)
POSSIBLE, ADDITIONAL, EXTRA, ALTERNATIVE, OR SUBSTITUTE ASSIGNMENTS
(Any class assignments from these subjects will be announced)
ARBITRATION
BAILMENTS
BANKING DEPOSITS, COLLECTIONS, AND FUNDS TRANSFERS
COMMERCIAL PAPER (AND ASSET-BACKED COMMERCIAL PAPER)
CONSUMER PROTECTION
CREDIT AND COLLATERAL
DECEDENT'S ESTATES
ELDER LAW (APPLICABILITY TO THE BUSINESS ENVIRONMENT)
EMPLOYMENT-RELATED IMMIGRATION LAWS*
ENVIRONMENTAL LAW
FAMILY AND MEDICAL LEAVE
FINANCE LEASE (UNDER UCC SEC. 2A-103(1) (g)*
BUSINESS INSURANCE *
INTERESTS IN REAL PROPERTY
LAND USE CONTROL AND REGULATION (Restrictive Covenants and Zoning)
NEGOTIABLE INSTRUMENTS*
PRIVATE PENSION PLANS
PUBLIC DUTY DOCTRINE
QUALIFIED IMMUNITY
SECURITIES REGULATION*
SOVERIGN IMMUNITY AND THE WAIVER OF SOVERIGN IMMUNITY
TORT CLAIMS ACT (FEDERAL OR NORTH CAROLINA)*
TRUSTS
WAGE-HOUR LAWS*
WHITE COLLAR CRIME*
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Typically the Expanded Subject or Expanded Topic will be found in Blackboard. However, as a
convenience for the First Class, the Expanded version is included below.
FUNCTIONAL ASSIGNMENTS for Summer 2014
Topic: Introduction to Business Activities and the Legal Environment
Topics appearing in the skeletal outline of the Functional Assignments will usually be expanded
in substantive content and detail. This expansion will include textbook assignments, additional
readings, cases, and further developmental concepts and materials. Unless otherwise noted, page
references in the readings are from our textbook, Business Law: Principles and Practices,
8th edition, by Goldman and Sigismond (hereinafter, G&S). Pagination is from the 8th
edition; however, earlier editions are acceptable. The Expanded Topics or Expanded Subjects
will appear on Blackboard in the Expanded Topic or Expanded Subject entry.
Topic: Introduction to Business Activities and the Legal Environment (First Class)
INTRODUCTION: Introduction to Course, Discussion of Syllabus and Functional
Assignments, Class Expectations, Course Requirements, Grading, Exams, Problems, and
Introduction and Instruction on Briefing of Cases. (See, Blackboard “A Brief Guide to
Briefing Cases“ and “A Not-So-Brief Guide on How to Brief Cases“.)
Business Activities and the Legal Environment
In studying the law, typically we find that we cover specific areas of the law,
specific subjects within the law. This compartmentalizing of the law is very
artificial, but somewhat helpful to promote conceptual clarity. Once we leave the
classroom and enter the "real world", especially the business world, we discover
that a plethora of different areas of the law may be involved in and affecting one
business transaction. And, of course, we may be dealing with a half dozen different
transactions at any one given time.
Constitutional Authority
Development of Law, pp. 6-7; Sources of Law, pp. 7-10; Civil Law and Criminal Law, pp. 11-12;
Jurisdiction (Personal, Subject Matter, Territorial), pp. 24-26; Jurisdiction in Cyberspace, p. 26;
Federal Court System, pp. 33-36.
 Article VI, 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 . . . [emphasis
added.]
Extracts from cases using the Supremacy Clause and Federal Preemption Clause (Article VI)
In Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the Supreme Court for the first time relied
on the Supremacy Clause to strike down a state statute (Virginia statute allowing the state to
confiscate debt payments by Virginia citizens to British creditors). The Court found it
inconsistent
with the Treaty of Paris with Britain, which protected the rights of British creditors.
In Martin v. Hunter's Lessee, 14 U.S. 304 (1816), and Cohens v. Virginia, 19 U.S. 264
(1821), the Supreme Court held that the Supremacy Clause gave the Supreme Court final say in
matters involving federal law, including overruling decisions by state courts.
In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Supreme Court found that
a tax levied by the state of Maryland on the federally incorporated Bank of the United States
effectively destroyed the federal institution, and would make the states superior to the federal
government, which would be inconsistent with the Supremacy Clause, which makes federal law
superior to state law. The Court also relied in this case on the Necessary and Proper Clause which
is the provision in Article One, section 8, clause 18, saying: The Congress shall have Power To
make all Laws which shall be necessary and proper for carrying into Execution the foregoing
Powers (implied powers).
Constitutional Authority to Regulate Business
Government Regulation of Business (Chapter 28) --- Need, Authority, Areas, Enforcement, pp. 463-472.
 Article I, Section 8, Clause 3: The Congress shall have Power * * * To regulate
Commerce with foreign Nations, and among the several States, and with the Indian
Tribes . . . (An enumerated power) [emphasis added.]
 Article I, Section 8: 1: The Congress shall have Power To * * * provide for the * *
* general Welfare of the United States . . .
Extracts from cases utilizing the Clauses of Supremacy, Preemption, or Commerce.
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) Commerce within state could be
regulated if commerce substantially affected commerce involving more than one
state.
Definition of "Commerce" interpreted broadly.
Munn v. Illinois (1877) held that States could regulate rates set by grain elevators and
warehouses. In the case, it was said, "property does become clothed with public interest when used
in a matter to make it of public consequence, and affect the community at large. When therefore,
one devotes his property to a use in which the public has an interest, he, in effect, grants to the
public an interest in that use, and must submit to be controlled by the public for the common
good". Munn v. Illinois provided the foundation for regulation to be used to prevent monopolistic
exploitations of consumers.
Swift & Co. v. United States, 196 U.S. 375 (1905), was a case in which the Supreme
Court ruled that the Commerce Clause allowed the government to regulate monopolies if they
have
a direct effect on commerce. The case established a "stream of commerce" (or "current of
commerce") argument that allows Congress to regulate things that fall into either category.
In Nebbia v. New York (1934), the Supreme Court interpreted Munn v. Illinois that it was
constitutional for government to regulate certain monopolistic industries. A stricter interpretation,
held by some, was that regulation could only be applied to public utilities. In Nebbia, the
Supreme
Court outlined a much wider realm for economic regulation. The State of New York
was
regulating the retail price of milk. The Court stated, "So far as the requirement of due process is
concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever
economic policy may reasonably be deemed to promote public welfare, and to enforce that policy
by legislation adapted to its purpose". Thus, the Supreme Court tore down any constitutional
barrier to economic regulation as long as, in the state's judgment, such regulation was in the public
interest.
NLRB v. Jones & Laughlin Steel Corp. (1937), was the landmark case in which the
Supreme Court began recognizing broader grounds upon which the Commerce Clause could be
used to regulate state activity — most importantly, that activity was commerce if it had a
“substantial economic effect” on interstate commerce or if the “cumulative effect” of one act could
have an effect on such commerce. 301 U.S. 1 (1937).
Wickard v. Filburn, 317 U.S. 111 (1942) Wheat production on farmers land for own
consumption was subject to federal regulation. Cumulative effect affected commerce.
Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) If it is interstate
commerce that feels the pinch, it does not matter how local the operation that applies the
squeeze.
Katzenbach v. McClung, 379 U.S. 294 (1964), is a Supreme Court case in which the
Court held that Congress acted within its power under the Commerce Clause in forbidding racial
discrimination in restaurants as this was a burden to interstate commerce. Congress passed
the Civil Rights Act of 1964 outlawing segregation in American schools and public places
(including hotels, restaurants, and public recreation areas). Ollie's Barbecue was a small,
family-owned restaurant that operated in Birmingham, Alabama. It was located on a state
highway and was 11 blocks from an interstate highway. In a typical year, approximately half of
the food it purchased from a local supplier originated out-of-state. The government prevailed in
the ruling which was a 9–0.
Extracts of cases in which the Supreme Court restricted use of the Commerce Clause
United States v. Lopez, 514 U.S. 549 (1995). Guns-Free School Zones Act of 1990
to band handguns within one thousand feet of a school saying the Act had nothing to do with
commerce. Supreme Court did not allow Federal government to regulate noncommercial
activities taking place wholly within a state's borders.
Morrison v. United States. The federal government’s power was further restricted in the
landmark case of Morrison v. United States, which overturned the Violence Against Women
Act for its reliance on the Commerce Clause in making domestic violence against women a federal
crime. 529 U.S. 598 (2000).
Taken together, Lopez and Morrison have made clear that while the Court is still willing
to recognize a broad interpretation of the Commerce Clause, if it does not find activity substantial
enough to constitute interstate commerce it will not accept Congress's stated reason for federal
regulation.
Dormant Commerce Clause
The idea behind the dormant Commerce Clause is that the grant of power to the federal
government implies a negative converse — a restriction prohibiting a state from passing legislation that
improperly burdens or discriminates against interstate commerce. The restriction is self-executing and
applies even in the absence of a conflict between state and federal statutes. The dormant Commerce Clause
does not expressly exist in the text of the United States Constitution. It is, rather, a doctrine deduced by
the Supreme Court and lower courts from the actual Commerce Clause. State regulations to promote
highway safety limited length of trucks traveling on the State's highways. In Raymond Motor
Transportation, Inc. v. Rice, 434 U.S. 429 (1978), the Supreme Court said they placed a "substantial burden
on interstate commerce" for only the most speculative contribution to highway safety.
Due Process and Equal Protection
The Bill of Rights, pp. 40-41.
 Article I, Section 8, Clause 1: The Congress shall have Power To * * * provide for
the * * * general Welfare of the United States; but all Duties, Imposts and Excises
shall be uniform throughout the United States . . .
 Article I, Section 9: 5: No Tax or Duty shall be laid on Articles exported from any
State.
 Article I, Section 9: 6: No Preference shall be given by any Regulation of
Commerce or Revenue to the Ports of one State over those of another: nor
shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in
another.
 Article IV, Section 2: 1: The Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States.
 Bill of Rights, Amendment V: No person shall be * * * deprived of life, liberty, or
property, without due process of law . . .
 Bill of Rights, Amendment IX: The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people.
 Bill of Rights, Amendment X: 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.
 Amendment XIV, 1: No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of the
laws.
The courts have created a divide or distinction between procedural due process and
substantive due process. Without belaboring this difference, suffice it to say that generally (and
especially in criminal matters) procedural due process has to do with the fairness of the procedure
by which the person is tried; substantive due process has to do with the law or statute under which
a person is being tried.
The Fifth Amendment's guarantee of due process is applicable to actions of the federal
government. The Fourteenth Amendment contains virtually the same phrase, but expressly applies to the
States. Those two clauses only apply against state actors, and not against private citizens.
However, among the rights of citizens is the constitutional right to procedural due process, which
has been broadly construed to protect the individual so that statutes, regulations, and enforcement actions
must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the
judgment or result. At a basic level, procedural due process is essentially based on the concept of
"fundamental fairness".
One proposed origin of these personal rights is the theory of unenumerated rights. The Supreme
Court, as a remedial requirement when other constitutional rights have been violated, has contended that
the Clause purportedly imposes unenumerated restrictions on legal procedures — the ways in which laws
may operate — and also on legal substance — what laws may attempt to do or prohibit.
This theory is different from that used in Griswold. In Griswold, the Supreme Court called the
"penumbras", or shadowy edges, of certain amendments arguably refer to certain rights, specifically
privacy rights. The penumbra-based rationale of Griswold has since been discarded; the Supreme Court
now uses the Due Process Clause as a basis for various unenumerated privacy rights.
Although it has never been the majority view, some have argued that the Ninth
Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially
enforceable rights, including a general right to privacy, as discussed by Justice Goldberg concurring
in Griswold.
[It is interesting to note that in the early years of the United States, during the time of the
Framers, the terms "law of the land" and "due process" were used somewhat interchangeably.]
Privacy Rights
Invasion of Privacy, pp. 78-79; Privacy, p. 393; Online Privacy, p.87.
Employee Privacy (Right to Privacy in the Workplace) - Tort law
protects
against invasion of privacy by private parties; the Fourth Amendment
protects privacy rights where the government is the actor.
"The makers of the Constitution conferred the most comprehensive of rights and the right
most valued by all civilized men - the right to be let alone". ---- Louis Brandeis
Case excerpts directed toward personal privacy and privacy in the work place:
Griswold v. Connecticut (1965): Physician convicted for giving married couple
info and medical advice on how to prevent conception and prescribed a contraceptive
device for wife's use. Specific guarantees in the Bill of Rights (esp. the First Amendment)
have penumbras [that are] formed by emanations from those guarantees ..... that create
zones of privacy and rights protected from government intrusion.
Katz v. United States (1967): Convicted of illegal gambling from evidence
obtained in a public pay phone booth where the FBI had recorded his conversation via an
electronic device affixed to the exterior of the phone booth. The Fourth Amendment
protects people, not just places, and does not require physical intrusion into any given
area. Harlan's Concurring Opinion Defined 1) subjective expectation of privacy by the
individual and 2) objective expectation where society if prepared to recognize such
privacy as reasonable.
Roe v. Wade (1973): The Fourteenth Amendment protects an individual's
right to privacy, including a woman's qualified right to terminate her pregnancy,
against state action.
Lawrence v. Texas (2003) - Deviate sexual intercourse, namely anal sex,
prohibited. The petitioners are entitled to respect for their private lives (their privacy).
No justification for state intrusion into their privacy.
Case excerpts on Right to Electronic Privacy in the Workplace
O'Connor v. Ortega(1987): The seminal case regarding the "reasonableness
standard". That standard applies to supervisory searches of public employees for
supervision, control, and efficiency. The expectation of privacy is a qualified one subject
to the "operational realities" of the workplace. This was a public employee (state hospital
physician) decision, but the case has been interpreted as implying that private employe es
were not afforded more protection than the public employee.
Schowengerdt v. General Dynamics Corp. (Ninth Circuit 1987): Followed
Ortega and further weakened, and possibly practically eliminated, an employee's right to
privacy in the computerized (electronic) workplace. The employee's expectation of
privacy only applied to work areas of exclusive use to the employee (i.e. personal
office(?), locker(?), desk drawer(?) etc., unless previously notified that such area was
subject to a work-related search on a regular basis without a warrant.
U.S. v. Ziegler (Ninth Circuit 2006): Using the workplace computer to access
child pornographic websites. Motion to Suppress, lacking a warrant, based on expectation
of privacy. Apprised on hiring and in the employment manual that the computers were
company owned and not to be used for private purposes and were subject to being
monitored----by employees hired to do such monitoring.
Federal Statutes related to Privacy
Electronic Communications Privacy Act of 1986 (ECPA).
The Privacy for Consumers and Workers Act (1993) closed the gap of the ECPA (gave the
employee the right to know and be given notice of intent to monitor).
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