Legal Issues

Introduction

Q6. The equal protection clause, which is part of the fourteenth amendment, provides that all states shall ensure that every person within its jurisdiction is accorded equal protection under the existing laws. In applying this clause, courts have developed three scrutiny tests namely

i) Strict scrutiny test  any law enacted by a state that categorizes people based on ethnicity or race is unconstitutional unless that law was crafted to serve a compelling need of government. The test shall investigate whether there was another option that could serve the same purpose as the legislation in question.

ii) Intermediate scrutiny any law that categorizes people based on sex is unconstitutional unless the law is tailored to serve an important function of state.

iii) Rational basis test courts will consider a law that categorizes people on any basis (other than sex, race or ethnicity) constitutional, provided the law is proximately related to a genuine government interest.

A law prohibiting white males over 25 from serving in the military would be subject to the strict scrutiny test because it seeks to discriminate on the basis on ethnicity and race. The courts will determine whether the laws were crafted to give a particular race undue advantage over the other races. The law would be unconstitutional because it does not give other races equal protection under the law. If the word white were removed, the law would fall under rational basis test and would be constitutional.

Q7. Proximate cause refers to events that have a direct bearing on the cause of an injury. Causation in fact is established by applying the but for test in determining what led to the injury a sequence of events leading to a particular conclusion. To establish a case of negligence, the plaintiff must prove that a particular action or event was directly related to the injury suffered. Someone watching television must prove that a video clip of a tire falling off a car and running over a child was directly responsible for his or her trauma.

Q8.   The Privileges and Immunities Act prohibits states from passing legislation that discriminates against citizens from other states. It accords all citizens the same rights and privileges as those that belong to that state. The Equal Protection Clause seeks to ensure all persons within the jurisdiction of a state are accorded equal treatment before the law.

Q9. In cases where a firm has exchanged hands and the successor firm inherited the debts and obligations of the former business, the stockholders are liable to pay for the debts and obligations of the corporation.  In instances where fraudulent practices were employed when transferring a business to new owners, the stockholder becomes liable for any liabilities.

Q10.  A limited partner is liable for debts and obligations of a limited partnership to the extent of their investment in the business. Thus if one had invested 50,000, their liability will be limited to their share capital of the same amount. Any other debts and obligations that the business has will be recovered from the unlimited partners share of the business and personal assets.  

Q11. Since corporations are artificial persons, laws protecting citizens do not cover them.  Examples of such laws include the Privileges and Immunities Act that exclusively applies to citizens. Persons encompasses natural citizens, illegal and legal aliens, as well as artificial persons. Any constitutional clause relating to persons will cover illegal immigrants despite their immigration status.

Q13. Assignment of rights occurs when a party to a contract assigns a third party the right to exercise all the rights they had under the contract. Delegation of duties refers to a situation when a party to a contract delegates to a third party their contractual duties under the contract.

Q16. A principal is liable to the agent for any monies spent in the course of the agents employment provided such monies were spent promoting the principals business. This liability holds irrespective of whether the principal authorized the expenditure provided proof exists to show such expenses were beneficial to the business. Agents are liable to the principal in instances where their actions were ultra vies and resulted in injuries to third parties. The principal will be held liable by the third parties for the agents actions but the agent is liable to indemnify the principal for any loss.

Q17. A trade secret is anything that a business applies in its operations to give it undue advantage over the competition. This includes formulas for various products, unique processes, market strategies or investment policies. Trade secrets are protected by limiting the number of people with access to them or by signing contracts with employees committing them not to disclose the knowledge they come across in the course of their duties (non-disclosure agreements). In other cases, employees sign over their rights to any work done during their employment.  Unlike patents, trade secrets protection does not expire. Employees expose such secrets through either industrial espionage or breach of contract.

Q18. Slander refers to spoken defamation of a person or entity while libel is written or published defamation of people or entities.

Q23. Rawls developed the veil of ignorance to establish the morality of an action by hypothetically reconstructing society and abolishing roles. Participants were then required to judge whether a particular action was just depending on if, they were the persons subjected to that role. On the ethical question of slavery, one would decide if the practice was moral based on if they were a slave. For most people the constant beatings, harsh lifestyles and constant want that characterized slave life informed them that the practice was immoral. The gun control debate could be resolved using this approach by exposing those on both sides of the divide to the veil of ignorance. At the end of the exercise, a consensus will emerge concerning state control of guns in private hands.

Question24. I would suggest that all employees under my section agree to a pay cut staggered with regard to ones take home pay. That is the most highly paid workers will face a higher percentage cut than those with the least pay will. If this meets strong resistance, I will call a meeting and ask the employees to suggest which benefits should be reduced to fulfill the 10 cost cutting measure. As a last resort, I will lay off workers on a last in first out basis.

Q25. Common law refers to that branch of law established by judicial rulings as opposed to those legislated upon by national or state assemblies. It involves case law and precedents in determining rulings for various cases.

Q26. The initial charge facing Martha Stewart faced was for insider trading. When the state realized that its case was weak, they decided to pursue other angles they were confident would snare her. This action by the government is what the constitution tried to prevent by passing the Bills of Rights protecting the citizenry from an invasive and vindictive government. In my opinion, this action was unethical.

Q28. The Preemption Doctrine holds that federal laws take precedence over state laws whenever there is a potential conflict between the two. Thus, most states are adopting Supreme Court decisions in deciding their rulings.

Q32. The Due Process Clauses of the fifth and 14th   amendments prohibit the enactment of laws that are very broad and vague.

Q33. An independent contractor hires out services to an employer or client on mutually agreed terms. Supervision of the contracted work is by the contractor who accomplishes the work in a fixed period. An employee is hired by an employer to do certain tasks on a daily basis based on a job description and fixed working hours.  Supervision of the work is by the employer or their agent.

Q34. Substantive due process refers to the reasoning behind the deprivation of personal liberties or property while procedural due process outlines the procedures that take place before the deprivation of personal liberties and property occurs.

Q35. A felony is an act considered inherently evil and punishable by prison terms in excess of one year. A misdemeanor is an act considered socially wrong. Most custodial sentences range from 1 month to a year at most.