25-1 Chapter 4 Constitutional Law for Business and E-Commerce.

25-1

Chapter 4

Constitutional Law for

Business and

E-Commerce

Constitution of the United States of America

Federalism and delegated powers The U.S. form of government is federalism Federal government and state governments share

powers Enumerated powers – delegated to the federal

government by the states Powers not delegated to the federal government by

the Constitution are reserved to the states

Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 4-2

Constitution of the United States of America

Doctrine of separation of powers Article I – Legislative branch Article II – Executive branch Article III – Judicial branch

Checks and balances Built to ensure no one branch of the federal

government becomes too powerful


Supremacy Clause

Establishes that the federal Constitution, treaties, federal laws, and federal regulations are the supreme law of the land

State and local laws that conflict with valid federal law are unconstitutional


Supremacy Clause

Preemption Doctrine: The concept that federal law takes precedence over state or local law Congress may expressly provide that federal

statute exclusively regulates an area or activity Federal, state, and local governments can be given

concurrent power


Case 4.1: U.S. Supreme Court Supremacy Clause

Case Bruesewitz v. Wyeth LLC 131 S.Ct. 1068, 179 L.Ed.2d 1, Web 2011 U.S.

Lexis 1085 (2011) Supreme Court of the United States

Issue Does the preemption provision in the federal

NCVIA bar state law design-defect product liability claims against vaccine manufacturers?


Commerce Clause

Grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes”

Federal government has the power to regulate three types of commerce Commerce with Native American tribes Foreign commerce Interstate commerce


Dormant Commerce Clause If the federal government has chosen not to

regulate an area of interstate commerce that it has the power to regulate, the area is subject to the Dormant Commerce Clause

A state can enact laws to regulate that area of commerce

The regulation should not unduly burden interstate commerce

Commerce Clause


E-Commerce and the Constitution

Electronic commerce (e-commerce) Parties are permitted to obtain website domain

names and conduct business electronically E-commerce can be used for

Sales of goods Licensing of intellectual property Sales of services


Bill of Rights and Other Amendmentsto the U.S. Constitution

Bill of Rights First ten amendments to the U.S. Constitution Guarantees certain fundamental rights to natural

persons Protects persons from intrusive government action

By federal government By state governments (Incorporation doctrine)


Freedom of Speech

The right to engage in oral, written, and symbolic speech Fully protected speech Limited protected speech Unprotected speech


Freedom of Speech

Fully protected speech Cannot be regulated or prohibited by government Can be oral, written, or symbolic

Example – criticizing the President, burning the U.S. flag as protest


Case 4.2: U.S. Supreme Court Free Speech and Violent Video Games

Case Brown, Governor of California v. Entertainment

Merchants Association 131 S.Ct. 2729, 180 L.Ed.2d 708, Web 2011 U.S.


Issue Does the California act that restricts violent video

games violate the First Amendment?


Freedom of Speech

Limited protected speech: Speech subject to time, place, and manner restrictions

Offensive speech

Commercial speech

Unprotected Speech: Speech not protected by the First Amendment and may be forbidden totally


Case 4.3: U.S. Supreme Court Free Speech

Case Snyder v. Phelps 131 S.Ct. 1207, 179 L.Ed.2d 172, Web 2011 U.S.


Issue Does the Free Speech Clause of the First

Amendment shield church members from tort liability for their funeral picketing speech?


Freedom of Religion

The Establishment Clause: First Amendment clause prohibiting the government from either establishing a state religion or promoting one religion over another

The Free Exercise Clause: First Amendment clause that prohibits the government from interfering with the free exercise of religion


Equal Protection

Equal Protection Clause: A clause that provides that a state cannot “deny to any person within its jurisdiction the equal protection of the laws” Laws cannot classify and treat “similarly situated”

persons differently Artificial persons, such as corporations, are also

protected Does not make the classification of individuals

unlawful


Equal Protection

Standards of review Strict scrutiny test: Applied to classifications

based on: Suspect class (e.g., race) Fundamental rights (e.g., voting)

Intermediate scrutiny test: Applied to classifications based on protected classes (e.g., gender)


Equal Protection

Rational basis test: Applied to classifications not involving a suspect or protected class Court will uphold government regulation so

long as there is a justifiable reason for it Permits much of the government regulation of

business


Due Process

Due Process Clause: No person shall be deprived of “life, liberty, or property” without due process of the law Fifth Amendment – federal government action Fourteenth Amendment – state and local

government action The government is not prohibited from taking a

person’s life, liberty, or property


Due Process

Substantive due process Requires laws to be clear, not overly broad in

scope Tested using a reasonable person’s understanding

of the law Laws failing the test are declared void for

vagueness


Due Process

Procedural due process Requires the government to give a person proper

notice and hearing before depriving that person of life, liberty, or property


Privileges and Immunities

Privileges and Immunities Clause Provides that “the Citizens of each State shall be

entitled to all Privileges and Immunities of Citizens in the several states”

Privileges or Immunities Clause Provides that “no State shall make or enforce any

law that shall abridge the privileges or immunities of the citizens of the United States”


Privileges and Immunities

The clauses prohibit states from enacting laws that unduly discriminate in favor of their residents

The clauses apply only to citizens They do not protect corporations or aliens


25-1 Chapter 4 Constitutional Law for Business and E-Commerce.

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