Business Law, Federal Government and Court - Assignment Example

Business Law Q1: Christen is wrong. The reason why calling out ‘fire in the theater is wrong is because the owner of the theatre has not permitted it. Thus her calling aloud fire could be viewed as a transgression of private ownership, the right for the owner to reserve right of admission into the theater and to control the conduct of patrons who visit the place. In essence, the Freedom of Speech is underpinned by private property rights which includes rights of the theater owner not to allow conduct that impinges upon the rights of other patrons, whose privileges to watch the movie peacefully was infringed by Christen’s actions. Q2 : Alice could sue in a Federal Court since she could claim that in the event this case is tried in a state court there could be elements of impartiality in favor of the other party and besides, the amount involved here is more than $50,000, which is the minimum needed for suing in a Federal Court. However, Alice needs to prove that there has been a constitutional violation in this controversy which needs to be sorted out by Federal Courts, who have the authority to decided cases which the American Constitution provides them. Q3: The two types of instances involving concurrent federal jurisdiction are firstly, those relating to diversity of citizens and secondly those involves Federal Questions. Under the first type, civil cases involving citizens of different states over $75,000 could be heard in State Courts, especially when the parties have not exercised their claims to have it heard in Federal Courts. However, in cases where the disputes relate to citizens of different States and the amount of controversy is less than $75,000, it has to be heard only in State Courts. Coming to the second aspect, state courts are empowered to address and interpret aspects relating to the Constitution, Federal laws and statutes, but these are subject to review by Federal Courts. Q4: Elrod could claim protection under 42 USC 1981 for indiscrimate termination of employment notwithstanding the fact that he is bound by the arbitration agreement under which all matters of dispute between the employers and employees must be decided by due process of arbitration. He could argue that discriminatory procedures may ensue through arbitration and his claims may be lost. Whether the employee’s claim for wrongful termination through age discrimination would form the main subject matter for the hearing of this case. Q5: There is no hard and fast rule that distinguishes employee from independent contractor. In this case the influence factors would be taken into account in determining whether Sam is an employee or an independent contractor. The degree of control which the employer is able to enforce on his worker, whether the worker’s job is an essential part of employment and whether the nature of work” makes detailed control unnecessary” are factors that need to be taken into account. “Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288).” (Independent Contractor Versus Employee). Here all facts point to Sam being an employee rather than an independent contractor. Employers are bound to honor laws and privileges of employees, deduct payroll taxes and provide all benefits to employees. This is perhaps the reason why Rita does not wish to consider Sam as an employee. Q6: The minimum value of controversy to file a suit in a Federal Court is $50,000. In this case it is seen that the value is only $30,000. Thus, Paula cannot sue in a Federal court for negligence. But she could file her claim in a state court for appropriate compensation for apparent negligence on the part of the owners of the Dizzy Movie theaters whose apparent defective stair case caused injuries. Q7: ADR’s are preferred since they are speedy, more economical and do not cause much mental agonies on the parties. ADR do not compete with Courts, as a matter of fact they help courts by reducing the quantum and intensity of Court litigation which need not, and should not be a matter of court jurisprudence in the first place. The burden of having to address and verdict a plethora of cases is considerable reduced through ADR processes. Q8: The punishment for identify thefts ranges from three to fifteen years in prison, depending upon the severity of the offence and the surrounding circumstances of the case. Identity theft is serious offence because it not only ruins the victims’ credit rating and makes him possibly a bankrupt but it also damages consumer confidence on the banking system and causes considerable harm to the local economy. Q9: The party who upholds the restrictions or ban on importing waste could argue that it considered the health, safety and welfare of the citizens in the state in which these wastes were coming in as crucial. On the other hand, those who oppose it could refer to the Commerce Clause and the fact that this ban discrimates against interstate commerce and is viewed as detrimental to competitive business. The Courts in the Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources (1992) case held that such restrictions were not acceptable and ruled against it. Thus, this statute cannot be termed as unconstitutional and import could be allowed. Q10: Criminal law comes into effect in the event of criminal activities, or conduct, and is dealt with by Criminal courts, while civil law deals with matters that need to be dealt by civil courts. Criminal laws deal with crimes which are prohibited even without the need for specific laws but in case of civil laws, there are laws or tenets that need to be followed like speeding, parking in wrong places, public nuisance etc. Civil laws do not restrict the movements of the perpetrators or imprison them. There could be fines or penalties. But criminal offenses could result in imprisonments, probation besides fines and penalties. Q11: Yes, the Federal government has exceeded its authority to a certain extent. However, it is necessary for the Federal Government to regulate this activity, since there are well founded fears that the use may be subject to abuses or misuses, outside the medicinal need for needy patients to relieve pain and sufferings. . The three categories of activities that Congress may permissible regulate under the Commerce Clause are as follows: 1. Congress may regulate the use of channels of interstate commerce 2. It could regulate and safeguard instruments of inter state commerce even though threats may occur only from intra state activities 3. Congress has the power to regulate those activities having substantial interests in interstate commerce. Q12: The execution of action in order to be guilty of a culpable offence or crime forms the actus reas while the state of mind of the perpetrator, before, during and after the crime is committed forms its mens rea, or the guilty mind. These terms are important since it is necessary that for every crime committed there needs to be a criminally minded mindset (mens rea) and criminal action that is actus reas. In this case it is necessary that Roger had criminal intent when he broke open the video store (mens rea) and also the commission of crime with deliberation which forms the actus rea. Extra Credit 1: A crime is a crime whether a white collar one or a street crime. While the former involves siphoning of millions of dollars through identity theft or misuse of bank access, the later could be larceny, sexual assaults, battery, manslaughter or murder. The nature of the crime does not absolve it from the due process of law or criminal justice. This is because a crime is an infringement of human rights, whether of a low or high order. Although white collar crimes do not harm people physically, it is mental assault leading to permanent loss of incomes and identity. Besides it also causes detriment to the State and the nation and needs to be condemned, in no uncertain terms. Works Cited Independent Contractor Versus Employee. State of California. 2010. Web. 20 Mar. 2010. . Read More