Business and the Bill of Rights - Essay Example

Topic: CASE PORTFOLIO, A COMPILATION A. Business and the Bill of Rights A Bill of Rights, Constitutional law Case number, and : Statesboro Publishing Co. v. City of Sylvania, - S.E.2d (1999 WL 304124, Sup. Ct., Ga.) 2. Parties : : Statesboro Publishing Co and . City of Sylvania 3. Legal Proceedings Constitutional Law 4. Facts : “To help reduce litter, the City of Sylvania enacted an ordinance prohibiting the distribution of free printed material in yards, driveways and porches. A publisher of the "Penny-Saver," a free weekly shopper newspaper thrown in yards and driveways, challenged the constitutionality of the ordinance. The trial court upheld the ordinance; the publisher appealed.”( http://www.swlearning.com/blaw/cases/ban_on_all.html) 5. Legal Provisions: Check Constitution provision under freedom of expression 6. Issue(s) : Whether or not it is constitutional for the City of Sylvania to enact an ordinance prohibiting the distribution of free printed material in yards, driveways and porches without violating freedom of expression. 7. Decision : The challenge ordinance violated the constitution, the court said. 8. Rule of the Case: While the City of Sylvania has the right to control litter in the city by enacting an ordinance, it cannot do so if it violates freedom of expression. 9. Reasons : Freedom of expression cannot have prior restraint. 10. Concurring & Dissenting Opinions : reference: http://www.swlearning.com/blaw/cases/ban_on_all.html A.2 Constitutional Law , Fourth Amendment and Warrantless Search 1. Case name, number, and date : Gora v. City of Ferndale, 1998 WL 148393 (Sup. Ct., Mich.) or 576 N. W. 2d 141 (Sup. Ct., Mich., 1998) 2. Parties : Parlor owners represented by Gora (check this) v. City of Ferndale 3. Legal Proceedings: Constitutional Law about Fourth Amendment and Warrantless Search 4. Facts : “The City of Ferndale, Michigan, adopted a comprehensive ordinance regulating massage parlors. Parlor owners contested the constitutionality of the ordinance, claiming that the warrantless search provision was in violation of the Fourth Amendments prohibition of unreasonable searches. Court of appeals held the searches to be unconstitutional; City appealed.” (www.swlearning.com/blaw/cases/warrantless_searches.html) 5. Legal Provisions: Fourth Amendment of the U.S. Constittution 6. Issue(s) : Whether or not the ordinance violates the constitutional rights of parlor owners against unreasoanable seaches under the Fourth Amendment. 7. Decision: The ordinance does not violate the Fourth Amendment because it falls under exemption. 8. Rule of the Case : The right against unreasonable searches exists under the Fourth Amendment but an exemption from the search warrant requirement exists for administrative inspections of closely regulated industries.( www.swlearning.com/blaw/cases/warrantless_searches.html) 9. Reasons : Persons choosing to engage in a pervasively regulated business know that their business will be subject to effective inspection. The right to privacy must be balanced with the right of the state’s police power. (www.swlearning.com/blaw/cases/warrantless_searches.html) 10. Concurring & Dissenting Opinions B. Administrative Agency 1. Case name, number, and date : Washington Legal Foundation v. Friedman, —F.Supp.2d— (1998 WL 456372, D.D.C.) or 13 F. Supp. 2d 51 (D.C., 1998) 2. Parties : Washington Legal Foundation v. Friedman 3. Legal Proceedings Administrative Law about Substantial Interest, FDA, Commercial Speech 4. Facts : “The FDA was sued "from enforcing policies restricting certain forms of manufacturer promotion of off-label uses for FDA-approved drugs and devices." The policies are expressed through complex and detailed Guidance Documents controlling manufacturer distribution of reprints of medical textbooks and peer-reviewed journal articles, and manufacturer involvement in continuing medical education and symposia.” (www.swlearning.com/blaw/cases/fda_limits.html) 5. Legal Provisions: Administrative law, check rule of FDA 6. Issue(s) : Whether FDA could limit any pharmaceutical or medical device manufacturer or other person from disseminating to medical professionals articles and textbooks published by independent publishers and by bona fide peer-review journals. 7. Decision : The court prohibited FDA from limiting dissemination to medical professionals articles and textbooks published by independent publishers and by bona fide peer-review journals. 8. Rule of the Case: “The FDA may also not control the content of independent providers of medical education seminars.”(www.swlearning.com/blaw/cases/fda_limits.html) 9. Reasons : “The regulations in question violate the Supreme Court’s Central Hudson test for commercial speech. Less intrusive regulations could address the concerns of the FDA, such as full disclosure by manufacturers.”(www.swlearning.com/blaw/cases/fda_limits.html) 10. Concurring & Dissenting Opinions C. Torts Relating to Business 1. Case name, number, and date : Valenti v. NET Properties Management, Inc., 1998 WL 91312 (Sup. Ct., N.H.) or 710 A.2d 399 (Sup. Ct., N.H., 1998) 2. Parties : Valenti v. NET Properties Management, Inc 3. Legal Proceedings : Civil law, Torts, Independent Contractor, Premises Liability, Vicarious Liability 4. Facts : “Bedford Mall, owned and managed by NET Properties, hired an independent contractor to design the malls entryway and another to maintain the entryway and mall floors. Valenti slipped and fell on the wet entryway, breaking her hip. She sued NET. The question is if NET or the independent contractors could be liable.”( www.swlearning.com/blaw/cases/property_owner2.html) 5. Legal Provisions: Section 425 of the Restatement (Second) of Torts. 6. Issue(s) : Is employer liable for the negligence of its independent contractor? 7. Decision : Yes, the employer is liable for the negligence of its independent contractor under Section 425 of the Restatement (Second) of Torts. 8. Rule of the Case: An employer could be subject to liability for the independent contractors negligence in certain cases provided by law. 9. Reasons : New Hampshire adopts Section 425 of the Restatement (Second) of Torts, which provides: "One who employs an independent contractor to maintain in safe condition land which he holds open to the entry of the public as his place of business ... is subject to the same liability for physical harm caused by the contractors negligent failure to maintain the land ... in reasonably safe condition, as though he had retained its maintenance in his own hands." (www.swlearning.com/blaw/cases/property_owner2.html) 10. Concurring & Dissenting Opinions D. Contracts 1. Case name, number, and date - Baldwin Properties v. Sharp, ---SW2d--- (1997 WL 469395, Mo.App., Mo.) 2. Parties : Baldwin Properties v. Sharp, ---SW2d--- (1997 WL 469395, Mo.App., Mo.) 3. Legal Proceedings : Civil Law, Torts, Contracts 4. Facts : The Kesslers had been negotiating to buy a new home built by Baldwin. They hired Sharp, a licensed Professional Engineer, to inspect the home. He reported what he believed were significant leakage problems in the basement that he estimated would cost $11,500 to repair. The Kesslers quit dealing with Baldwin who later sold the house for $15,000 less. Another engineer, hired by Baldwin, also found a water problem, but said it would be quite cheap to repair. Baldwin sued Sharp for tortious interference with a business relationship. 5. Legal Provisions : Law on Torts, Law on Contracts 6. Issue(s) : Is Sharp liable for tortious interference with a business relationship? 7. Decision : The lower court said, no, he is not liable. Said decision is affirmed by the Court of Appeals. 8. Rule of the Case: For one to be liable for tortious interference with a business relationship, there are elements or requisites to be complied with. The court said, “This tort requires "the existence of a contract or a valid business relationship; defendant’s knowledge of the contract or relationship; intentional interference by the defendant inducing or causing a breach of the contract or relationship; absence of justification; and damages."( www.swlearning.com/blaw/cases/home_builder.html) :: 9. Reasons : The court said, “It is possible that the other engineer was correct and that Baldwin was mistaken about the extent of the water problem, but he was justified to use his professional expertise to produce what he believed was a good report, which is a statement of his opinion. There was no evidence that he did this in order to harm Baldwin.”( www.swlearning.com/blaw/cases/home_builder.html) 10. Concurring & Dissenting Opinions References: 1. Statesboro Publishing Co. v. City of Sylvania, - S.E.2d - (1999 WL 304124, Sup. Ct., , (http://www.swlearning.com/blaw/cases/ban_on_all.html) 2. : Gora v. City of Ferndale, 1998 WL 148393 (Sup. Ct., Mich.) or 576 N. W. 2d 141 (Sup. Ct., Mich., 1998) (www.swlearning.com/blaw/cases/warrantless_searches.html) 3. Washington Legal Foundation v. Friedman, —F.Supp.2d— (1998 WL 456372, D.D.C.) or 13 F. Supp. 2d 51 (D.C., 1998) (www.swlearning.com/blaw/cases/fda_limits.html) 4. Valenti v. NET Properties Management, Inc., 1998 WL 91312 (Sup. Ct., N.H.) or 710 A.2d 399 (Sup. Ct., N.H., 1998), (www.swlearning.com/blaw/cases/property_owner2.html) 5. Baldwin Properties v. Sharp, ---SW2d--- (1997 WL 469395, Mo.App., Mo.), ( www.swlearning.com/blaw/cases/home_builder.html) :: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Topic: Case Portfolio Answer the follow-up questions for each brief following that brief Business and the Bill of Rights Question: What is the major difference between business speech and political speech? Closely regulated industries are not afforded all Fourth Amendment guarantees against unreasonable search and seizure. Is this fair, or is it necessary to protect the greater good? After briefing this case on Business and the Bill of Rights do you feel that the rights of the business were protected or violated? Defend your position. Answer: Business speech has some prior restraint while political has some prior restraint. This is fair and it is necessary to protect public good because the public may be taken advantage by the business establishment. I feel that the rights of business were protected. If the state will not do regulating massage parlors, these parlors could become prostitution den. The state is mandated to protect public morals under the police power of the state. Freedom is never absolute; hence, it must be balanced with public interest. Administrative Agency Question: Why does the agency exist? Describe the powers of this administrative agency. Show an example of the kind of work it does. To whom, if anyone, does it report? Where do the legislative and judicial branches come into play with investigation and enforcement of this agency? Answer: An administrative agency exists to help the executive branch of government. Some administrative agencies are considered quasi-judicial agencies, which mean that such agencies, although designed to help the executive branch are also performing a sort of “judicial” function. It is, of course, under the executive branch of government. Legislative branch come in through the valid delegation of legislative power, which means that it is the legislative that created the agency and clothed it with authority to make implementing rules and regulations. Judicial branch come in by either affirming or reversing decisions made by said administrative agency. Torts Relating to Business Question: What kinds of torts involve primarily businesses? Explain the concept of warranties; describe the different types and how they are applied to products. When is liability imposed? Are warnings on labels for dangerous items such as cigarettes or guns enough to protect these companies from liability or negligence cases? Answer: Torts that may involve primarily business has to deal with the products and rendering of service to their clients or customers. Torts presuppose negligence and damage and hence, applying the same to business, there should be damage caused to customers or clients and the defendant-business establishment is negligent. Warranties are natural elements of contracts. They normally exists in contracts because they are implied to be there without need of further agreement but if asked whether they could be waived, the answer of course is yes. Liability is imposed the product caused damage to the customer or client and there was negligence by the manufacturer or the service provider and the cause of the damage was attributed to the said negligence. No warnings are just requirements of law to be there but they are not enough to protect the would-be violator. Contracts Question: Consider the case you are briefing. What element of the contract was in dispute? How could this conflict have been avoided? What other elements could have caused the contract to be illegitimate. Consider that the plaintiff won the case. What were other ways in which the plaintiff could have been remedied in court? What sort of contracts must be in writing before they are considered enforceable? Answer: The element of contract that was in dispute was every element a contract could and they are cause, object and consent. There was simply no business relationship or contract between Kesslers and Baldwin because the case facts say, they had been just negotiating to buy a new home built by Baldwin and in fact Kesslers quit dealing with Baldwin. If the cause or object is unlawful, the contracts could still be illegitimate even if they happen to exist. If we assumed that plaintiff won because he was able to establish a business relationship that was breached , the other remedies may include suing Sharp for violation of the latter’s code of ethics as Engineer. Contracts that must be in writing before they are enforceable include oral modifications of employments contracts. (Catex Vitol Gas v. Wolfe, - F.3d - (1999 WL 342454, 1st Cir.)(anderson-chasey.swcollege.com/ blaw/cases/oral_modification.html) Note to customer: I can’t retrieve the complete txt of the cited cases. I tried using http://www.findlaw.com/casecode so many times but website shows no results. Any way, if we compute the pages, it almost 10 pages including the answers while your order must only be four pages. If ever I will be able to access the same, I will just use the same to put the concurring and the dissenting opinion. What I think, the most important here is the concurring opinion which is normally the decision of the majority of the justices. If we’ll run out of time, the best thing to do is just to copy the decision and combine with the reasons for the decision. Hence if you could help me have access between receipt of this paper and your deadline, please forward them to me to complete this work at your full satisfaction. In the absence of the access, I think this is the best under the circumstances. With extra pages and the bonus questions, I just hope I have satisfied substantially your requirements. Thanks. Writer Read More