Business Law Assignment - Coursework Example

?Business Law Assignment Question In the Constitution of the United s, Article Section 2 refers to the qualifications that must be met to serve as a member of the House of Representatives. It states that “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen” (art. 1, sec. 2, cl.2). Article 1, Section 3 of the Constitution delineates the requirements to become a Senator, by stating that “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen” (art. 1, sec. 3, cl.3.). The qualifications to serve as President of the United States are found in Article 2, Section one. The document states that “no Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States“ (art. 2, sec. 1, cl.5). The Age requirement for the House of Representatives is five years less than the requirements for senate and ten years less than for president. The age and citizenship requirements for Senate exceed those of the House by five and three years respectively. They are less than those for President by five years for both categories. The qualifications to serve as President are the highest exceeding the age requirement for the House by ten years and the Senate by five years, and the citizenship requirement for the House by seven years and for Senate by five years. All three of the offices require that the Person be a natural born Citizen of the United States. Question 2: Stanglin argues that the ordinance violates the equal protection, because there is no rational basis to suppose that children are at a greater danger being near a class E dance hall than a skating rink. I disagree with this statement. The Equal Protection clause states that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws” (US Const., amend. XIV). This statement taken on its own can be taken either extremely strictly or be loosely interpreted, but there is a rather extensive history of supreme court cases that has led up to the current guidelines on interpreting this clause. Some of the most famous of these cases had to do with equality between races, women’s suffrage and the rights of immigrants. Currently the equal protection clause is interpreting as protecting state governments from discriminating against these types of rights--fundamental or inalienable rights. For cases like Stanglin’s, where no fundamental rights are involved, the state need only to show there is some type of rational basis for whatever distinction they make through the law. Since the state passed the ordinance in the interest of protecting the youth from drugs and dangerous sex, it was not passed arbitrarily and thus not irrational. Personally, it seems to me that Stanglin filed this suit simply out of personal interest, because he would lose money for his business. I don’t think the equal protection should ever work in this way. The clause is not to be used for protecting the profit seeking interests of business from regulations imposed by local governments. It is to protect people from arbitrary and unjust discrimination of the law. Question 3: The primary element in this case, is the fact that Hernandez relied upon a promise that a business made to him, which they failed to keep causing him to suffer monetary loss. Thus I am certain Hernandez should win this case given that the circumstances meet the criteria for promissory estoppel. The text defines a promise in a promissory estoppel as one where the “promisor should foresee is likely to induce reliance, reliance on the promise by the promisee, and injustice as a result of that reliance” (Ch. 9,pg. 303). This is exactly what happened in the case between Hernandez and UPS. Hernandez had no formal contract with UPS, but he was assured he had the job, prompting him to spend the money to move to a new city and sell some of his possessions. When he arrived they immediately breached the first agreement by telling him he was to start at a later date than promised, causing him to suffer further losses in potential income. Again, there was no formal contract signed stating that he had to start at that date, but that is what they told him and he suffered losses due to his reliance on their promise. Eventually, Hernandez was told he would not be given a job offer, and was left without a job. There is no doubt Hernandez must have suffered substantial financial losses due to his reliance on the promise given by UPS. Under the law the court can either enforce the promise or order recovery of reliance losses (Ch. 9, pg. 303). Question 4: From 1970 to 1988 Americans were able to receive information regarding abortions from Title X funded clinics including abortion counseling. In 1988 the Secretary of Health and Human Services issued a series of regulations enforcing their own strict view Section 1008 that no Title X funds are to be “used in programs where abortion is a method of family planning”. These new regulations were so strict that essentially no clinics receiving federal funding were even allowed to discuss the option of abortion. They also were not allowed to make referrals to clinics that give or discuss abortions. In my opinion this is not a fair reading of Section 1008, and I would go so far as to say these regulations violated constitutional rights. It is my intuition that what the original law makers meant was that Title X funding cannot be given to abortion clinics. That is clinics that specifically perform abortions. The reason I think this, is because it would be impossible to widely enforce these regulations, which turned out to be the case until in 1993 when the regulations were reworked under the Clinton administration. The HHS vision of section 1008 seems to be a clear violation of the first amendment of the United States Constitution. The amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (US Const.). Enforcing an HHS interpretation of 1008 would clearly abridge freedom of speech. Clinicians, who believe abortion is morally permissible, would be forced not to even mention it simply because of the law. It is one thing to keep taxpayers dollars from funding abortions, but to pass a law that does not allow tax dollars to fund clinics where it’s doctors and nurses are pro-abortion is just unconstitutional and wrong. Question 5: Neither Brown nor Stratum is entitled to a larger share of profits. Regardless of whether Stratum contributed more capital, “The RULLCA provides that members share profits and other distributions equally, regardless of differences in their capital contributions” (ch.40, pg. 989). Brown is not entitled to more profits despite carrying out more managerial duties, because they originally agreed on a 50/50 profit share, and that agreement is binding by law. If Stratum responded by trying to appoint his son to manage the LLC, Brown could object. According to our text, while you are permitted to transfer an LLC to another party, “the transferee is not a member of the LLC. The transferee’s most important right is to receive...a share of profits and the value of the members’ interest when the LLC is liquidated. A transferee has no right to manage the business and has only a limited right to information about the LLC’s accounts” (ch. 40 pg 989). Thus, his son would not be able to manage the LLC; he would only have rights to its assets upon liquidation. If the relationship between Stratum and Brown Deteriorates to the point where Brown wishes to dissociate from the LLC, she would not be entitled to the value of her interest in the LLC. According to the text, “Under the RULLCA the dissociated member has no right after dissociation to force the LLC to dissolve and to liquidate its assets. The RULLCA leaves such decisions to the operating agreement. In addition, a dissociated member is not entitled to receive the value of her LLC interest until the LLC dissolves, unless the members agree otherwise (ch.40, pg. 990). Thus, Brown would not be entitled to her interest until the LLC dissolves. Once it dissolves she will be entitled to half of its value, as dictated in the original contract, so Brown would receive $250,000 (given they owe no debt to creditors). If Brown leaves the LLC and sets up another business, it is no longer her duty not to compete with Stratum’s business unless she signs a non-compete agreement upon dissolution. Question 6: In order to see whether the CGC’s sale of Amenity’s stock constituted the sale of a security, let us turn to the textbook. The text states that “unless the context otherwise requires the term “security" means any note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, pre-organization certificate subscription, investment contract, voting trust certificate . . . auctional undivided interest in oil, gas, or mineral rights...or, in general, any interest or instrument commonly known as a “security” (ch.45, pg.1116). With that being said, it is clear that Cgc’s distribution was a sale of securities, because amenity’s only asset was the 2,000 dollars CGC paid for its one million shares. Thus, the business was raising funds through selling an ownership in its business (by selling its stocks), which by definition is the sale of a security. Question 7: The height and weight requirements do not blatantly disfavor candidates due to their gender, so it takes some evidence to fight. To attack the height and weight requirements, Rawlinson should use what the text calls a “disparate treatment suit”. These are defined as suits where “the plaintiff first must show a prima facie case: a case strong enough to create a presumption of discrimination and to require a counter-argument from the defendant (pg. 1323). Once Rawlinson establishes this case, the defendant is then obligated to show that they had a legitimate reason for the rule or else they lose the case. Rawlinson does not need a defense for the second rule. As the text points out, it is simple to prove violation of Title VII “in cases where the employer had an express policy disfavoring one of Title VIl’s protected classes” (pg. 1323). Since the rule itself expressly prohibits women from the job, it clearly violates Title VII. The state’s defense for the first rule should involve what the text calls a “merit" defense. The law states that “an employer...escapes Title VII liability if it acts pursuant to a bona fide merit system, a system basing earnings on quantity or quality of production, or the results of a professionally developed ability test (pg. 1324). The state could use this type of defense by stating that they did not decide against employing Rawlinson simply because she had the characteristics of a female, but rather, because the other larger candidates for the job had more physical merit. They may have scored higher on tests of strength and endurance, which are proven by fitness tests to be crucial to the job. For the second rule, the state may have a defense involving safety. Suppose she was applying for a job with all male inmates, and there are an abundance of rapists around. Well in that case, the requirement that the candidate must not be female may not have to do with the fact that she is female, but with the fact that she would be in danger of being raped. Question 8: If an employee learns of apparently unlawful behavior on the part of his or her employer, than that employee could have an ethical obligation to blow the whistle on that employer. It all depends on the severity of the unlawful behavior. If it is simply a minor offense, then the employee’s duty to his or her employer may override the ethical obligation--especially since competitors are probably making the same minor offenses. In this case the whistle blower would be looked at as a self-righteous traitor. Also there are certain practical consequences one must face when blowing the whistle. The employer will most likely decide they no longer want you as an employee, and you will face termination and unemployment. If it is a high profile case, there may be a lot of media attention you would have to deal with. These practical considerations should play some role in making an ethical decision especially if someone is looking at the situation purely through the consequences. If the offense the employer is committing is minor, then the consequences of blowing the whistle may be graver than those of not blowing the whistle. If the offense the employer is committing is heinous, than there may be a lot of good consequences coming from blowing the whistle. Many unknowing victims of fraud may be saved, and the perpetrators of the offense may have to suffer consequences including conviction. You may be looked at as a hero for blowing the whistle in the face of such pressure, and standing on the side of justice. If you do not blow the whistle, then in such situations where reprehensible fraud is being committed, you are doing an injustice to countless people. Also if it is ever discovered once they do get caught that you knew the whole time, you may face punishment for failing to come forward. All of these factors should come into play when deciding if it is necessary to blow the whistle. Question 9: I think there certainly are good reasons to make someone responsible for the behavior of another person--particularly in situations involving an employer and an employee. One situation where this is true would be where an employee’s everyday job duty brought about the tort. An employee should never be responsible for this, because in the employee’s eyes they were just doing their job. The management that set forth the policies that resulted in such a tort should be completely responsible. Another case where the employer should be responsible is one where the employee is receiving benefits or incentives for committing the act. Say for instance the employee is on a strict commission based compensation plan, and the rules state the employee should not partake in certain deceptive sales tactics. Suppose management encourages the use of those deceptive tactics by promoting them, so their numbers will be higher, and penalizing the employees who refuse to gain from these unethical behaviors. In this case the employer certainly should be liable. Here we see a case where businesses are encouraged by the respondeat superior rule to pursue better training and management practices, because their employees hold them responsible for promoting unethical practices. I do not think the rule makes employees responsible for too many behaviors of their employees. However it could result in some employees who are aware of the rule to feel less responsible for their actions. It also could result in some employers being too strict and abusive to their employees, because they may fear a lawsuit. It might also deter employers from hiring as many employees for the same reason. There are some circumstances where employees should not be responsible for their torts. For example, if their behavior is grossly outside of company guidelines and could not have been prevented by management, or if the act was committed outside of company grounds and working hours and not at all endorsed by the company. Question 10: It could be argued that the legislative branch has the most power of all of the branches of the federal government. The legislative branch has the power to actually draft and put into place federal law. The constitution states that the powers of the legislative branch are "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” (art.l). Both the Senate and the House must agree before a piece of legislature can take effect, and the president can veto their decision. Even if the president veto’s a bill though, congress can still override that veto forcing the president to implement policy that he does not agree with. This makes congress more powerful than the president; because they can make the laws the president must carry out in his daily administration of the country. Congress is also more powerful than the judicial branch because the judicial branch simply enforces and interprets the laws that congress pass. While the judicial branch has some power over congress, by making court decisions on how to interpret certain laws congress passes, they can only interpret those laws so far and must make decisions based upon original legislature. One example in current events of Congress having power over the other two branches involves the highly conservative congress that has been in power for most of the Obama administration. This congress has been strongly opposed to all of Obama’s ideas, and has voted no to many proposals. This has made it tough to get anything accomplished in Washington; a burden seen at it’s worse when an agreement to avoid default on the government’s debt was just narrowly avoided, because of their refusal to cooperate. Question 11: It could be argued that the executive branch of the United States has the most power of any office held. This branch includes The President, The Vice President, The First Lady, and the President’s Cabinet. The president is the head of government in the United States and commander-in-chief of the United States armed forces. This makes him most powerful, because it is only on person, with the ability to carry out administration of the country and control the military in time of war. Also, he has the capacity to appoint anyone who he would like to serve in his cabinet, and to appoint ambassadors and conduct international affairs. Also, he has the ability to sign legislation drafted by congress, and veto bills proposed by congress that he does not agree with (which they in turn can overrule with ? vote). One current events example of the power of the executive branch is the War in Iraq. George W. Bush became commander-in-chief of the military when this war started and it was waged for years after and still has an enormous impact on this country and the world today. Barack Obama, who is now president, was able to exercise his power to end this substantial conflict. He also was able to use his position to capture and execute infamous international terrorist Osama Bin Laden. Clearly having this amount of control over the military makes the executive branch the prime source of power. Question 12: The Judicial branch is the most powerful branch in the United States government. The branch is given the following powers by the Constitution: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects (Art. 3) In other words, this branch has the ability to make decisions in any federal court case. These court cases may involve disputes between citizens and state or federal law or between states. This branch has a lot of power, because regardless of what black letter law states, the way judges make their decisions on what a law really means in particular contexts has to do with the prior decisions of judges. Judges can project their own viewpoints onto laws possibly drafted for different reasons, and change how they are used. They can also use their viewpoints to promote positive changes in the world. For instance, the judicial branch has a long history of decisions against racial segregation and discrimination. One example in current events of the judicial branch wielding its power too strong, was a case in 2010, where a group called Citizen’s United tried to pass a piece of legislation prohibiting corporate spending in federal elections. Conservative judges rejected this law on the basis of a vaguely worded constitutional proposition. Works Cited "Constitution of the United States - Official." National Archives and Records Administration. Web. 20 Feb. 2012. . Read More