(Solution Manual) Business Law

Cheeseman, 11

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Solution Manual

11th Edition

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Business Law 11e Henry Cheeseman (Solutions Manual All Chapters) Chapter 1 Legal Heritage and the Information Age Answer to Critical Legal Thinking Case 1.1 School of Jurisprudential Thought Yes, the race -conscious admissions program at the University of Texas is lawful under the Equal Protection Clause of the U.S. Constitution. The U.S. Supreme Court held that the University’s admissions policy was narrowly tailored to advance raced -based differences in university admissions. The Supreme Court stated that the University’s affirmative action admissions proce ss must be tailored to ensure that race plays no greater role than is necessary to meet the University’s compelling interest to diversify its student body. The Supreme Court stated, “A university may institute a race -conscious admissions program as a means of obtaining the educational benefits that flow from student body diversity. Enrolling a diverse student body promotes cross -racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races . Equally important, student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.” The Supreme Court stated that admissions officers can consider race as a positive feature of a minority student’s application. However, a university may not use quotas, such as setting aside a predetermined number of admissions or percent of admissions, based on race. The Court held that using race as one factor of many factors to be considered in a holisti c view of college applications is narrowly tailored and does not violate the Equal Protection Clause of the U.S. Constitution. The Supreme Court affirmed the judgment of the U.S. court of appeals. The decision of the U.S. Supreme Court is highly correlated to the goals of the Sociological School of jurisprudence, which asserts that the law is a means of achieving and advancing certain sociological goals. The followers of this philosophy believe that the purpose of law is to shape social behavior. The use of a holistic approach of university admissions that considers race as one of many factors to be considered in the admissions process, with a goal of attaining diversity of a university student body, helps achieve a social goal. Fisher v. University of Texas at Austin , 136 S.Ct. 2198, 2016 U.S. Lexis 4059 (Supreme Court of the United States, 2016) 1.2 Fairness of the Law Many students will react that the statute is unfair as it does not afford women equal status in the workplace. In light of today’s standards, that position is well founded. However, it is a useful exercise to consider arguments for the opposite position in the context of the time period. In enacting such a statute, the legislature presumably entertained the view that women had special needs, were subject to certain weaknesses, and therefore the demands made on them had to be accommodated in the workplace. T hat these premises, i.e., special needs and presumed weaknesses, might be false does not necessarily preclude one from acting morally. Moralists might label this ignorance as excusable in that it is “invincible,” i.e., an ignorance that cannot be destroyed or offers no moral reason for doing so. Of course, modern experience and knowledge require that we question these premises. It almost certainly would not be lawful today. Not only have the items relevant to the test of equal protection broadened under pre sent constitutional interpretations, but also Title VII of the Civil Rights Act of 1964 prohibits any discrimination on the basis of sex in the “terms, conditions and benefits of employment.” W. C. Ritchie & Co. v. Wayman, Attorney for Cook Country, Illino is, 91 N.E. 695, 1910 Ill. Lexis 1958 (Supreme Court of Illinois) Answers to Ethics Cases 1.3 Ethics Case Yes, the hunting, fishing, and gathering rights granted to the Mille Lacs Band of the Ojibwe Indians by the federal government in the 1837 treaty are valid and enforceable. The U.S. Supreme Court held that these rights were not extinguished when the state of Minnesota was admitted as a state in 1858. The state of Minnesota argued that the Ojibwe’s rights under the treaty were extinguished when Minnesota was admitted to the Union. There is no clear evidence of federal congressional intent to extinguish the t reaty rights of the Ojibwe Indians when Minnesota was admitted as a state in 1858. The language admitting Minnesota as a state made no mention of Indian treaty rights. It was illegal for the state of Minnesota to try to extinguish clearly delineated legal rights granted to the Ojibwe Native Americans more than 150 years before. The hunting, fishing, and gathering rights guaranteed to the Ojibwe Indians in the 1837 treaty are still valid and enforceable. The state of Minnesota did not ethically when it trie d to abolish the hunting, fishing, and gathering rights guaranteed to the Ojibwe Indians by treaty. The Ojibwe relied on the promises of the treaty, which must be kept by the government. Minnesota v. Mille Lacs Band of Chippewa Indians , 526 U.S. 172, 119 S .Ct. 1187, 1999 U.S. Lexis 2190 (Supreme Court of the United States) 1.4 Ethics Case The better case is made by the dissent. The law has not been progressive in this instance. It is likely that legislators entertained an unconscious premise that women s hould not be required to fight a war. This speculation might be supported by the fact that the majority of the Supreme Court summoned a technical legal point to justify their ruling. The Court held that Congress was the proper party to articulate the publi c policy that women should not fight at the front, thereby removing themselves from any further consideration of the substantive issue, i.e., whether equality was being served as a matter of fairness. Rostker, Director of the Selective Service v. Goldberg , 453 U.S. 57, 101 S.Ct. 2646, 1981 U.S. Lexis 126 (Supreme Court of the United States) Chapter 2 Courts and Jurisdiction Answers to Critical Legal Thinking Cases 2.1 Personal Jurisdiction No, defendants Live Siri Art, Inc. and Siri Galliano are not subject to lawsuit in New York pursuant to New York’s long -arm statute. This is because defendant Live Siri Art, Inc, a California corporation, and defendant Siri Galliano, a California resident, did not have the requisite minimum contacts with the state of New York to make them subject to a lawsuit brought by plaintiff Richtone Design Group LLC (Richtone), a New York LLC, in a New York court pursuant to the New York long -arm statute. Assuming tha t the defendants did violate the plaintiff’s copyright by selling Richtone’s pilates manuals in New York using a website and made $1,000 in more than a decade doing so, this is but de minimis contact that does not arise to the minimum contact required by d ue process to subject them to a lawsuit in New York. The U.S. district court dismissed plaintiff Richtone’s New York lawsuit against the California defendants for lack of personal jurisdiction. Richtone Design Group, LLC v. Live Art , Inc., 2013 U.S. Dist. Lexis 157781 (United States District Court for the Southern District of New York, 2013) 2.2 Service of Process Yes, May Facebook, Inc. may use alternative service of process by sending email notices to the defendants’ websites. Facebook sued the defenda nts for trademark infringement, cybersquatting, and false designation of origin by their use of typosquatting schemes whereby the defendants register internet domain names that are confusingly similar to facebook.com (e.g., facebock.com) so that potential users of Facebook’s website who enter a typographical error are diverted to the typesquatter’s website, which is designed to look strikingly similar in appearance to Facebook’s website, to trick users into thinking that they are using Facebook’s website. F acebook has introduced evidence that it has not been able to serve the defendants personally, by mail, or by telephone. The U.S. district court granted Facebook’s motion to be permitted to serve these defendants by sending an email notice to the defendants ’ websites. The U.S. district court stated “Here, service by email is reasonably calculated to provide actual notice.” The U.S. district court issued an order permitting Facebook to serve the defendants by email. Facebook, Inc. v. Banana Ads LLC . 2012 U.S. Dist. Lexis 65834 (United States District Court for the Northern District of California, 2012) 2.3 Standing to Sue Michigan law, and not Ohio law, applies in this case. The court noted that because the accident took place in Michigan, there is a presumption that Michigan law applies absent any other jurisdiction having more substantial contacts. Plaintiff Bertram, howe ver, contended that Ohio law should apply, because all of the parties were residents of Ohio at the time of the accident and all consequences flowing from his injury occurred in Ohio. The court disagreed. The court stated, ”Because the snowmobiling acciden t took place in Michigan, the place where the conduct causing Bertram’s injury occurred in Michigan and Michigan has enacted specific legislation involving the risks of snowmobiling, we find that Michigan law clearly controls in this case. While all partie s are residents of and have their relationships in the State of Ohio, we are not persuaded by Bertram’s argument that this issue should control.” The Court of Appeals of Ohio held that the law of the state of Michigan, where the accident occurred, and not the law of the state of Ohio, the state of the residence of the parties, applied. The court applied the Michigan assumption of the risk statute and granted summary judgment to the three defendant friends of plaintiff Bertram. Bertram v. Norden, et al. , 823 N.E.2d 478, 2004 Ohio App. Lexis 550 (Court of Appeals of Ohio, 2004) 2.4 Long -Arm Statute Yes, the Missouri court has personal jurisdiction over the Illinois casino based on Missouri’s long-arm statute. Although the Casino Queen casino is located in I llinois, it could reasonably foresee its pervasive advertising directed at Missouri residents would entice those residents, such a Mark Myers, to cross the state line into Illinois to participate in gambling at the Illinois casino. If an Illinois defendant can reasonably foresee that his or her negligent actions have consequences felt in Missouri, personal jurisdiction is authorized under the Missouri long -arm statute. The U.S. court of appeals held that Casino Queen, which operated a casino in Illinois, is subject to personal jurisdiction in courts in Missouri under Missouri’s long -arm statute. The court of appeals stated, “While Myers’s injuries did not arise out of Casino Queen’s advertising in a strict proximate cause sense, his injuries are nonetheless related to Casino Queen’s advertising activities because he was injured after responding to the solicitation.” The court of appeals ruled that Casino Queen must stand trial in a Missouri court and defend the charges brought against it by Myers. Myers v. Ca sino Queen, Inc. , 689 F.3d 904, (United States Court of Appeals for the Eighth Circuit, 2012) 2.5 Standing to Sue No. The U.S. District Court held that Phoenix of Broward, Inc. (Phoenix), a franchisee of Burger King did not have standing to sue McDonald’s and dismissed the case. In deciding the case the court noted that the goal of standing is to determine whether the plaintiff is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. It was Simon Marketing, Inc. (Simon), who McDonald’s hired to operate the promotional games, who committed fraud by steering cash pri zes of up to $1 million to its conspirators. McDonald’s may have been negligent in allowing this to happen. Thus, McDonald’s customers who did not have a chance to win the cash prizes because of the fraud would have standing to sue Simon and McDonald’s. Ho wever, the court held that Phoenix of Broward, Inc. (Phoenix), a franchisee of Burger King, did not have standing to sue McDonald’s. The court stated, “In this case, the harm caused by McDonald's allegedly false advertisements more directly affects the cus tomers who were denied the opportunity to compete for the high -value prizes criminally co -opted by Jacobson. While these customers do not have standing to sue under the Lanham Act, they could and did vindicate the public interest by suing McDonald's for fr aud. Thus, there is no need to empower Phoenix to act as a private attorney general in this case.” Phoenix of Broward, Inc. v. McDonald’s Corporation , 441 F.Supp.2d 1241, 2006 U.S. Dist. Lexis 55112 (United States District Court for the Northern District o f Georgia, 2006) 2.6 U.S. Supreme Court Decision This is a plurality decision of the U.S. Supreme Court and does not create precedent for further cases. This is because although 5 justices upheld the Salinas’s verdict of guilty, 3 did so for one reason and 2 did so for a different reason. If the 5 justices would have agreed to the verdict of guilty based on the same reason as to why the evidence of the defendant’s silence at the precustodical hearing could be admitted at trial, then it would have been a majority opinion, and a majority opinion would have become precedent. However, in this case, 5 justices upheld the guilty verdict, but 3 for one reason and 2 justices for another reason, with 4 justices dissenting, created a plurality decision that does no t create precedent. Salinas v. Texas , 133 S.Ct. 2174, 2012 U.S. Lexis 4697 (Supreme Court of the United States, 2012) Answers to Ethics Cases 2.7 Ethics Case Yes, the Maryland court has personal jurisdiction over the Florida defendant Ladawn Banks. Chanel is engaged in the business of manufacturing and distributing throughout the world various luxury goods, including handbags, wallets, and numerous other products under the federally registered trademark “Chanel” and monogram marks. Chanel alleged that B anks owned and operated the fully interactive website www.lovenamebrands.com, through which she sold handbags and wallets bearing counterfeit trademarks identical to the registered Chanel marks. According to Chanel, although defendant Banks is a resident o f Florida, she conducted business in Maryland via several interactive websites. The Zippo court distinction between interactive, semi -interactive, and passive websites is particularly relevant. Defendant’s website at issue in this case was highly interacti ve and provided a platform for the commercial exchange of information, goods, and funds. Thus, the Maryland court, under its long -arm statute, has personal jurisdiction over the Florida defendant Banks in this matter. The court granted default judgment to Chanel, assessed damages of $133,712 against Banks, and issued a permanent injunction prohibiting Banks from infringing on Chanel’s trademarks. Regarding the issue of ethics, if defendant Ladawn Banks operated the website www.lovenamebrands.com and sold knock -off handbags and wallets bearing counterfeit trademarks identical to the registered Chanel marks, she has acted unethically. Stealing another party’s rightful trademarks and selling knock -off goods bearing those trademarks is not only unethical but it also constitutes illegal trademark infringement. Chanel, Inc. v. Banks , 2010 U.S. Dist. Lexis 135374 (United States District Court for Maryland, 2010) 2.8 Ethics Case No, Hertz Corporation is not a citizen of California and therefore is not subject to plaintiff Melinda Friend’s —a California citizen —suit in California state court. A corporation is a citizen of the state in which it is incorporated and in which it has its principal place of business. Hertz Corporation is incorporated in the state of Delaware and has its headquarters office in the state of New Jersey. Hertz is not incorporated in California nor does it have its principal place of business in California. The U.S. Supreme Court stated, “We conclud e that the phrase ‘principal place of business’ refers to the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities. We believe that the ‘nerve center’ will typically be found at a corporation’s head quarters. The metaphor of a corporate ‘brain,’ while not precise, suggests a single location.” Here, that location for Hertz was Hertz’s headquarters office in New Jersey. Because Hertz was not a citizen of California, and plaintiff Friend was a resident o f California, there was diversity of citizenship and Hertz can legally have Friend’s lawsuit moved from California state court to the U.S. district court in California. It was probably not unethical for Hertz to deny citizenship in California even though i t has such a large presence in California with its 270 rental car locations and more than 2,000 employees in California. Finding diversity in this case does not mean that Friend cannot sue Hertz in California. Friend will get her day in court against Hertz , but it will be in a U.S. district court in California and not in a California state court. Hertz Corporation v. Friend , 130 S.Ct. 1181, 2010 U.S. Lexis 1897 (Supreme Court of the United States, 2010) Chapter 3 Judicial, Alternative, and E -Dispute Resolution Answers to Critical Legal Thinking Cases 3.1 Contingency -Fee Yes, the contingency -fee agreement is enforceable as written. The retainer agreement was a contingency -fee contract that stipulated the law firm would receive one -third of any gross judgment or settlement and the Goesels would be responsible for litigation expenses if the case was won or was settled. The contingency -fee agreement provided that in the event of no recovery the Goesels were not responsible for paying attorney ’s fees or expenses and the law firm would receive nothing. When the case settled afte r four years, $687,500 was recovered from the defendants. Under the contingency -fee arrangement, the law firm ’s one -third of the gross settlement was $229,166, and litigation expenses totaled $172,949, leaving the Goesels with $285,384, or roughly 42 percent of the total recovery. The contingency -fee agreement was enforceable. The law firm took on the entire financial responsibility of the lawsuit. The, as plaintiffs, would pay nothing unless the case was won or settled. The case was settled and although the Goesels only received 42 percent of the gross recovery, that was the bargain they struck. This is a typical contingency -fee arrangement. The U.S. court of appeals enforced the contingency fee agreement, stating, “There was nothing unreasonable about the fee as calculated under the terms of the retainer agreement. Contingent - fee contracts play a vital role in our legal system. Declining to enforce these arrangements would uproot the contingent -fee mechanisms with disastr ous consequences for those unable to pay lawyers upfront.” Goesel v. Boley International (H.K.) Ltd. , 806 F.3d 414, 2015 U.S. App. Lexis 19353 (United States Court of Appeals for the Seventh Circuit, 2015) 3.2 Service of Process No, plaintiff Jon Summervold did not properly serve defendant Wal -Mart, Inc. South Dakota law requires that service of process on a corporate defendant be made on president, officer, director, or registered agent of a defendant corporation. Here, plaintiff served a nonofficer employee of Walmart, the assistant manager of the apparel department of the Walmart store in Aberdeen, South Dakota. Based on the fact that the president, directors, or officers of Wal -Mart, Inc. were not located in South Dakota at the time of the plaintiff’s lawsuit, the plaintiff should have had the process server serve the registered agent the service of process. Because the plaintiff had failed to comply with South Dakota’s applicable service of process statute, the court held that the service of process was invalid. Because the three year statute of limitations had run on the plaintiff’s claim, the court dismissed the plaintiff’s lawsuit against Walmart. The judge stated “It is a most unpleasant task for any judge to dismiss a case at this stage.” Sommervold v. Wal - Mart, Inc. , 709 F.3d 1234, 2013 U.S. App. Lexis 4972 (United States Court of Appeals for the Eighth Circuit, 2013 ) 3.3 Summary Judgment Yes, Wal mart should be granted summary judgment. Summary judgment can be granted b y a court where there is no dispute as to the material facts of the case. Here, the court of appeals held that there were no issues of material fact that needed to be heard by a jury and that the judge could therefore make a decision in this case. The cour t held that Wal mart did not provide a dangerous display and that the four corners of the display were clearing marked with “Watch Step” warning signs. The court stated that Walmart did not instruct the plaintiff to pick up her watermelon and take several s teps around the display with it. The court noted that the safer option was for her to have pushed her shopping cart close to the display and then to have scooped the watermelon into her cart. This option would not have required her to take any steps, thus avoiding the unfortunate incident. The court rejected the contention that Walmart “created a trap” for the plaintiff. Based on the undisputed facts of the case, the court granted summary judgment to Walmart. Primrose v. Wal mart, Inc. , 127 So.3d 13, 2013 La . App. Lexis 1985 (Court of Appeals of Louisiana, 2013) 3.4 Class Action Yes, the class should be certified for a class action lawsuit. The Fair Labor Standards Act (FLSA) requires employers to pay overtime pay of one and one -half times regular pay to employees for time worked that exceeds 40 hours in a week. The FLSA requires employers to pay employees for activities integral and indispensable to their regular work, even if those activities do not occur at the employee's workstation. Tyson paid its emp loyees for the 40 hours they worked each week but did not pay them for time spent donning and doffing the protective equipment. The employees who were not paid for this time brought a class action lawsuit against Tyson. The U.S. Supreme Court held that th e class should be certified for a class action lawsuit. The Supreme Court stated “ Before a class is certified, a district court must find that questions of law or fact common to class members predominate over any questions affecting only individual members . In this case each employee worked in the same facility, did similar work, and was paid under the same policy. ” The U.S. Supreme Court therefore held that the class should be certified. The U.S. district court jury awarded $2.9 million in compensatory damages against Tyson for violation of FLSA. Tyson Foods, Inc. v. Bouaphakeo , 136 S.Ct. 1036, 2016 U.S. Lexis 2134 (Supreme Court of the United States, 2016) 3.5 Arbitration Yes, the cont ract dispute between the parties is subject to arbitration. The U.S. Supreme Court held that there was a valid arbitration agreement entered into between Nitro -Lift Technologies, L.L.C. and its former employees, Eddie Howard and Shane D. Schneider. When Ho ward and Schneider sued Nitro -Lift in Oklahoma state court to have the noncompetition agreement declared null and void, they ignored the arbitration clause contained in the same agreement. The U.S. Supreme Court held that the dispute was subject to the arb itration clause and must be submitted to arbitration. The U.S. Supreme Court held that the contract dispute in the case was to be heard by the arbitrator and not by the Oklahoma state court. The U.S. Supreme Court stated “The Oklahoma Supreme Court m ust ab ide by the Federal Arbitration Act (FAA) , which is the Supreme Law of the Land.” Nitro -Lift Technologies, L.L.C. v. Howard, 133 S.Ct. 500, 2012 U.S. Lexis 8897 (Supreme Court of the United States, 2012) 3.6 Arbitration Yes, the arbitration agreement is enforceable. The U.S. Supreme Court held that the arbitration agreement signed by Janis Clark, the daughter and attorney -in-fact of Olive Clark, with Kindred Nursing Centers, was enforceable. The Supreme Court held that th e binding arbitration provision of the agreement must be enforced and that Clark’s lawsuit in federal court must be dismissed. The Supreme Court stated “The Federal Arbitration Act requires court to place arbitration agreements on an equal footing with all other contracts. The Act’s key provision states that an arbitration agreement must ordinarily be treated as valid, irrevocable, and enforceable.” The U.S. Supreme Court ordered the enforcement of the arbitration agreement. Kindred Nursing Centers Limited Partnership v. Clark , 137 S.Ct. 1421, 2017 U.S. Lexis 2948 (Supreme Court of the United States, 2017) Answers to Ethics Cases 3.7 Ethics Case There a no genuine issue of material fact so no jury trial was necessary. The trial court held that there was no genuine issue of material fact, applied the law to the facts of the case, and granted summary judgment to McDonald’s. The court of appeals agreed with the decision, stating, “Snow and ice are part of wintertime life in Ohio. The existence of snow deposite d on an elevated island situated in defendants' parking lot/drive -thru does not constitute negligence. Upon review of the record before us, we find no evidence that the placement of the snow on the McDonald's median created an increased hazard, i.e., an ‘u nnatural’ accumulation of ice. We find that the presence of the ice where Murphy fell was an open and obvious hazard.” This was a somewhat difficult case to decide whether a factual dispute existed and therefore required a trial by jury. But the trial cou rt and court of appeals sided with McDonald’s. McDonald’s did not act unethically in asking for summary judgment. Plaintiff Murphy did not unethically either because he had pretty good case. Both parties acted as you would expect them to under the circumst ances. Murphy v. McDonald’s Restaurants of Ohio , 2010 Ohio App. Lexis 402 (Court of Appeals of Ohio, 2010) 3.8 Ethics Case Yes, the baristas can be certified as a class and may pursue their case against Starbucks Corporation as class action. The Massachusetts Tips Act, applicable to the restaurant industry, stipulates that wait -staff employees shall not be required to share ti ps with anyone who is not a wait-staff employee. The employees of Starbucks Corporation are divided into four subcategories: store managers, assistant managers, shift supervisors, and baristas. The accumulated tips are distributed weekly to baristas and sh ift supervisors within the store in proportion to the number of hours worked that week by each individual. The baristas who work or have worked for Starbucks coffee shops in Massachusetts during a six -year period may maintain a class action lawsuit agains t Starbucks for violating the Massachusetts Tips Act. These baristas share commonality of interests to certify them as a class. The U.S. court of appeals stated, “The civil rules establish four elements that must be present in order to obtain class certifi cation: number of claims, commonality of legal or factual questions, typicality of representative claims, and adequacy of representation. Consideration of fairness and judicial economy are well -served by resolving the baristas’ claims in a class action. We conclude, therefore, that a class action is superior to other alternative ways of adjudicating this controversy.” The U.S. district court found that Starbucks had violated the Tips Act and awarded damages of $14 million to the baristas, plus prejudgment i nterest of 12 percent. The U.S. court of appeals upheld this judgment. Did Starbucks act ethically in this case? Starbucks policy requiring baristas to share tips with shift supervisors clearly violates the Massachusetts Tips Act. So, this conduct in and of itself is unethical and illegal. In this case, Starbucks tried to avoid facing a class action and force individual baristas to sue, which would have basically eliminated most lawsuits against Starbucks for violating the Tips Act. Although legally Starb ucks had the right to challenge the class, it seems from the facts of the case that the members of the class shared common interests and were easily identifiable as members of the class. The issue was the same to all: Did Starbucks violate the Tips Act? St arbucks should have obeyed the act instead of trying to chase the lawsuit away. Matamoros v. Starbucks Corporation , 699 F.3d 129, 2012 U.S. App. Lexis 23185 (United States Court of Appeals for the First Circuit, 2012) Chapter 4 Constitutional Law for Business and E -Commerce Answer to Critical Legal Thinking Cases 4.1 Establishment Clause No, inscribing the national motto “In God We Trust” on the coins and currency of the United States does not violate the Establishment Clause of the U.S. Constitution. The U.S. court of appeals held that because of the long historical tradition of placing " In God We Trust" on U.S. coins and currency comports with the original understanding of the Establishment Clause, therefore the plaintiffs' claim fails. The U.S. court of appeals stated, “The Establishment Clause prohibits Congress from making any law resp ecting an establishment of religion. The Establishment Clause must be interpreted by reference to historical practices and understandings. As the Supreme Court has noted, ‘the Founding Fathers believed devotedly that there was a God and that the unalienabl e rights of man were rooted in Him.’ The Declaration of Independence states “We hold these truths to be self -evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights." Although the motto refers to one God, historical practices confirm that the Establishment Clause does not require courts to purge the Government of all religious reflection or to evince a hostility to religion by disabling the government from in some ways recognizing our religious heritag e. Placing "In God We Trust" on coins and currency is consistent with historical practices.” New Doe Child #1 v. United States , 901 F.3d 1015 (United States Court of Appeals for the Eighth Circuit, 2018) 4.2 Free Speech Yes, the North Carolina statute tha t prohibits registered sex offenders from using social media websites violates the Free Speech Clause of the First Amendment. The U.S. Supreme Court held that the North Carolina law infringed on Lester Gerard Packingham’s free speech right to use the internet. The U.S. Supreme Court stated, “This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern internet. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. The State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabri c of our modern society and culture.” Packingham v. North Carolina , 137 S.Ct. 1730, 2017 U.S. Lexis 3871 (Supreme Court of the United States, 2017) 4.3 Equal Protection Clause Yes, the junior high school and high school’s policy that allows girls to play sports while wearing their hair long but requires boys who play sports to keep their hair cut short constitutes sex discrimination in violation of Equal Protection Clause. The Greensburg Community School Corporation is a public school to which the Equal Pr otection Clause applies. The school violated the Equal Protection Clause when it refused to let A.H., a male student, to play high school basketball unless he cut his hair short. The U.S. court of appeals stated, “ The facts indicate that a boy wishing to p lay basketball at Greenburg is subject to a requirement, impinging upon a recognized liberty interest, that a girl is not. The hair -length policy, being applicable only to boy’s teams, draws an explicit gender line. Why, then, must only members of the boy’ s team wear their hair short? The policy itself gives rise to an inference of discrimination.” Hayden v. Greensburg Community School Corporation , 743 F.3d 569 (United States Court of Appeals for the Seventh Circuit, 2014) 4.4 Due Process Yes, the Federal Communications Commission (FCC) violated the Fifth Amendment’s due process rights of Fox and ABC. A fundamental principle of the U.S. legal system as stated in the Due Process Clause of the Fifth Amendment is that laws which regulate perso ns and entities must give fair notice of conduct that is forbidden or required. The Fifth Amendment requires the invalidation of laws that are impermissibly vague. The U.S. Supreme Court held that the FCC failed to give Fox or ABC notice prior to the broad casts in question that fleeting expletives and momentary nudity could be found actionably indecent and in violation of federal communications law. Therefore, the FCC’s 2004 standards as applied to the broadcasts in 2002 and 2003 were vague. The Supreme Cou rt held that the defendants’ Fifth Amendment’s due process rights had been violated because the FCC had failed to give fair notice to Fox and ABC prior to the broadcasts in question that fleeting expletives and momentary nudity were indecent. Federal Commu nications Commission v. Fox Television Stations, Inc. , 132 S.Ct. 2307, 2012 U.S. Lexis 4661 (Supreme Court of the United States, 2012) 4.5 Commerce Clause Yes, the federal Driver’s Privacy Protection Act (DPPA) was properly enacted by the U.S. Congress pursuant to the Commerce Clause power granted to the federal government by the U.S. Constitution. The DPPA is a proper exercise of Congress’s authority to reg ulate interstate commerce under the Commerce Clause. The personal, identifying information that the DPPA regulates is a thing in interstate commerce, and that the sale or release of that information in interstate commerce is therefore a proper subject of c ongressional regulation. The motor vehicle information that the states have historically sold is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact automobile owners and drivers via customized solicitati ons. The information is also used in the stream of interstate commerce by various public and private entities for matters related to interstate motoring. Because automobile owners’ and drivers’ information is an article of commerce, its sale or release int o the interstate stream of business is sufficient to support federal regulation. The U.S. Supreme Court held that Congress had the authority under the Commerce Clause of the U.S. Constitution to enact the federal Driver’s Privacy Protection Act. Therefore, a state cannot sell or otherwise distribute the personal information of registered drivers unless the state obtains that person’s affirmative consent to do so. Reno, Attorney General of the United States v. Condon, Attorney General of South Carolina , 528 U.S. 141, 120 S.Ct. 666, 2000 U.S. Lexis 503 (Supreme Court of the United States, 2000) 4.6 Free Speech Yes, the Free Speech Clause of the First Amendment shields Phelps and the members of the Westboro Baptist Church from tort liability for their insens itive picketing speech at Lance Corporal Matthew Snyder’s funeral. Here, the Westboro congregation members picketed while standing on public land adjacent to a public street approximately 1,000 feet from the church. They carried placards that read “God Hat es the USA/Thank God for 9/11,” “America Is Doomed,” and “Thank God for Dead Soldiers.” The picketers also sang hymns and recited Bible verses. The funeral procession passed within 200 to 300 feet of the picket site. However insensitive the picketing, the U.S. Supreme Court held that it was protected speech under the First Amendment. The Supreme Court stated, “ Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to special protection under the First Amend ment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and —as it did here —inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a N ation we have chosen a different course —to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.” Snyder v. Phelps , 562 U .S. 443, 131 S.Ct. 1207, 2011 U.S. Lexis 1903 (Supreme Court of the United States, 2011) Answers to Ethics Cases 4.7 Ethics Case Yes, under the Supremacy Clause of the U.S. Constitution preemption provision in the federal NCVIA bar state law design -defect product liability claims against vaccine manufacturers? The Supremacy Clause establishes that the U.S. Constitution and federal treaties, statutes, and regulations are the supreme law of the land and that any state or local laws that conflict with valid federal law are preempted and without effect. In this case, Congress passed the National Childhood Vaccine Injury Act of 1986 (NCVIA ) which relieved manufactures of vaccines from liability from unavoidable side effects of immunization. The U.S. Supreme C ourt held that Hanna Bruesewitz’s lawsuit against the vaccine manufacturer Wyeth LLC for state law product liability is preempted by the NCVIA. The public policy for the Supremacy Clause is obvious: without the Clause states could enact laws that overrode federal law, and federal laws could always be ignored and preempted by state law. This would cause havoc to the concept of federalism of our form of government. Is it ethical for the defendant to rely on the NCVIA to protect it from liability? In this case probably yes, because otherwise Wyeth LLC might not produce the very valuable vaccine against diphtheria, tetanus, and pertussis (DTP). Congress made a public policy choice when it enacted the NCVIA. Bruesewitz v. Wyeth LLC , 562 U.S. 223, 131 S.Ct. 1068, 2011 U.S. Lexis 1085 (Supreme Court of the United States, 2011) 4.8 Takings Clause Yes, the government’s action requiring growers of raisins to annually turn over a percentage of their crop to the United States government, free of charge, constitutes a taking of personal property under the Takings Clause of the Fifth Amendment that requi res the payment of just compensation. The U.S. Supreme Court, in deciding the case, stated, “The first question presented asks whether the government's categorical duty under the Fifth Amendment to pay just compensation when it physically takes possession of an interest in property, applies only to real property and not to personal property. The answer is no. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home. The reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee. The Government contends that the reserve requirement is not a taking because raisin growers voluntarily choose to participate in the raisin market. According to the Government, if raisin growers don't like it, they can plant different crops. The Government is wrong as a matter of law. Any physical taking of raisins for public use must be accompanied by just compensation.” Did the government act ethically in taking the raisins without paying for them? No, this was a case of government overreach. The government used its coercive power to enact a law that would take private personal property without paying for it. And after taking the raisins for free, the government then sold them. The Government contention that the raisin growers voluntarily choose to participate in the raisin market and if they did not like the government’s action of taking their raisins, they could plant different crops was an arrogant and specious response. Horne v. Department of Agriculture , 135 S.Ct. 2419, 2015 U.S. Lexis 4064 (Supreme Court of the United States, 2015) Chapter 5 Intentional Torts and Negligence Answers to Critical Legal Thinking Cases 5.1 Assumption of the Risk Yes, riding the mechanical bull was an open and obvious danger for which Lilya had voluntarily assumed the risk. The court found the danger stemming from riding the mechanical bull was the open and obvious characteristic of the ride: the possibility of fal ling off the mechanical bull. Plaintiff John Lilya had previously seen a patron and his friend be tossed off the mechanical bull, and Lilya himself had been thrown from the mechanical bull prior to boarding the bull for his fateful ride. The supreme court of Alabama stated, “Additionally, the very name of the ride — “Rolling Thunder” —hanging on a banner above the ride, gives a somewhat graphic indication of what is the very nature of bull riding: an extremely turbulent ride, the challenge of which is to hang on and not fall off.” The court concluded “ Volenti non fit injuria ” (a person who knowingly and voluntarily risks danger cannot recover for any resulting injury). The supreme court of Alabama held that riding a mechanical bull and being thrown and injured by the bull is an open and obvious danger and that Lilya had voluntarily assumed the risk when he rode the bull and was thrown and injured. The state supreme court affirmed the grant of summary judgment in favor of defendant Gulf State Fair. Lilya v. The G reater Gulf State Fair, Inc. , 855 So.2d 1049, 2003 Ala. Lexis 57 (Supreme Court of Alabama, 2003) 5.2 Gross Negligence Yes, Toys “R” Us is liable for gross negligence. Gross negligence is extreme when compared with ordinary negligence. Gross negligence has often been defined as either a want of even scant care or an extreme departure from the ordinary standard of conduct. Gross negligence requires a finding that the defendant engaged in willful misconduct or reckless behavior. Here, although Toys “R” Us had no intent to cause harm to users of the pool slide, the company engaged in wanton and reckless conduct when it did not test the slide to ensure that it complied with federal safety standards that required pool slides to be capable of supporting up to 350 pounds and be safe for head -first sliding. The jury held that Toys “R” Us was liable for gross negligence and awarded $ 2,640,000 in compensatory damages and $18 million in punitive damages to Michael Aleo, the husband of the woman killed in the pool accident. The state supreme court, which affirmed the decision, stated, “Gross negligence is substantially and appreciably hi gher in magnitude than ordinary negligence. We conclude that the circumstances of this case exhibit a substantial degree of reprehensibility. Accordingly, the evidence was sufficient to support the jury’s finding of gross negligence. Aleo v. SLB Toys USA, Inc., 995 N.E.2d 740, 2013 Mass. Lexis 709 (Supreme Judicial Court of Massachusetts, 2013) 5.3 Proximate Cause No, the producers and distributors of the video games and movies watched by Carneal were not the proximate cause of the death of the victims of Carneal’s school shooting. Under the law, a party is not necessarily liable for all damages set in motion by their act. This limitation on liability is referred to as proximate cause , also called legal cause . The general test of proximate cause is foreseeability . A negligent party who is found to not be the proximate cause of the plaintiff’s injuries is not liable to the plaintiff. The U.S. court of appeals held that the defendants were not the proximate cause of Carneal’s actions and were not liab le to the plaintiffs. The court stated, “It appears simply impossible to predict that these games, movies, and internet sites would incite a young person to violence. We find that it is simply too far a leap from shooting characters on a video screen (an activity undertaken by millions) to shooting people in a classroom (an activity undertaken by a handful, at most) for Carneal’s actions to have been reasonably foreseeable to the manufacturers of the media that Carneal played and viewed.” James v. Meow Medi a, Inc. , 300 F.3d 683, 2002 U.S. App. Lexis 16185 (United States Court of Appeals for the Sixth Circuit, 2002) 5.4 Disparagement No, Zagat is not liable for disparagement. Disparagement is an untrue statement of fact made by one person or business about the products, services, property, or reputation of another business. To prove disparagement, the plaintiff must show that the defen dant (1) made an untrue statement of fact about the plaintiff’s products, services, property, or business reputation; (2) published that untrue statement to a third party; (3) knew the statement was not true; and (4) made the statement maliciously (i.e., w ith intent to injure the plaintiff). Restaurant ratings and reviews almost invariably constitute expressions of opinion. In this case, Zagat’s ratings and comments about Lucky Cheng’s restaurant that appeared in the Zagat guide were not statements of fact. Instead, they were mere opinions and were therefore not actionable as disparagement. Therefore, disparagement did not occur. Themed Restaurants, Inc., Doing Business as Lucky Cheng’s v. Zagat Survey, LLC , 801 N.Y.S.2d 38, 2005 N.Y. App. Div. Lexis 9275 (Supreme Court of New York, Appellate Division, 2005) 5.5 Negligence Yes, the city of Seattle is liable for negligence to Mark Jones. A common feature of many firehouses, including the one Jones worked in, is the pole hole in the second floor with a pole leading to the first floor. When called to action, this feature allows firefighters to quickly slide down the pole to reach the first floor and their firefighting equipment and vehicles to respond to emergencies. Various witnesses testified that the l ayout of the second floor of Station 33 was hazardous. In this case this hole with the slide pole was located on the second floor next to the bathroom that was used by the firefighters. It was negligent to have the bathroom so close to the slide pole hole , thus making it foreseeable that someone, such as Jones, may fall through the hole when attempting to use the bathroom, particularly during the night. Safety precautions or alternative designs of the second floor were possible that would have eliminated t his hazard. The city of Seattle is liable to Jones for negligence. Jones sustained both serious permanent physical and cognitive impairments because of his fall. The jury found that the city’s negligence was the sole cause of Jones’s injuries and awarded him $12.75 million in damages. The court of appeals and the Supreme Court of Washington upheld the verdict and award of damages. Jones v. City of Seattle, Washington , 314 P.3d 380, 2013 Wash. Lexis 955 (Supreme Court of Washington, 2013) 5.6 Negligence Yes. The court held that Clancy was negligent when he fell asleep at the wheel while driving his truck and hit and injured Dianna Goad, who driving a motorcycle on the other side of the road.