Law Exam

1

Combined Lecture Notes

Law and Public Policy Lecture Notes 30 August 2016

Briefings on Cases are the majority of the work

The paper and presentation is the main grading of the course

The midterm and the final are the purpose of judging both the core items needed from the class are digested and the subject matter of the test has been understood and he will point out what will be on the exams both the midterm and the final

Multiple choice and short answer that will have a short answer at the end

Cases briefed online two cases a week and every week two students will volunteer to stand up and talk about the case

Law is the performance of academia

Class will be in parts

Case Brief

Marbury vs. Madison

John Adams lost the election to Thomas Jefferson

· Adams second president

· He tried to put his people in all areas of government

· Judiciary act of 1801 (1789)

· He put this into effect

· With his Congress he tried to come up with the new version of the judiciary act of 1801—tried to create

· Justice of the peace back then a lower level judge

· Signs all these executive orders to

Thomas Jefferson establishes the Judiciary Act of 1802—the new judiciary act of 1789

This unwinds all the appointments of Madison, which Marburry didn’t receive—this was signed and he never obtained it

“Midnight Judges”

These judges were looked at the midnight judges that were established by Adams

Was it a valid appointment?

ARTICLE 3 OF THE CONSTITUTIONS

Tells judges what they can hear—cases between states and ambassadors

Superior court is the highest trial court

Supreme court is the appellate course

Marbury brought his case to the

Issue

Rule

Application

Conclusion

IRAC is how you brief cases—I section is where you give facts

Issue does the court have the authority have the authority to rule over this case—article 3

Application this is what the supreme court

Conclusion what we got was judicial review—any appointments made can be looked at by the supreme court—the ability of the court system (their check to the balance) this is a valid law or no this isn’t a valid law—this is the supreme court giving itself more power than it does

Judicial branch having the authority to throw out laws upon the base of constitutional

All the cases we are looking at are appeals court cases

To overrule the judicial the congress both houses need ¾ vote

Congress has a way to give Supreme Court to hear cases directly and

On test: judicial review from

The Supreme Court justices:

1. Chief Justice John G. Roberts Jr.

2. Justice Clarence Thomas

3. Justice Anthony M. Kennedy

4. Justice Ruth Bader Ginsburg

5. Justice Stephen G. Breyer

6. Justice Samuel Anthony Alito Jr.

7. Justice Sonia Sotomayor

8. Justice Elena Kagan

Bill of Rights will be on the exam

Tort is civil (you seeking something from someone else)

Battery—criminally and civilly be sued

Civil people seeking retribution from another person

Criminal the criminal side of it

Civil: a person seeking something from another person

Criminal: retribution by a grieved society

Different Torts: things people sue for

Torts:

Negligence

· Negligence the largest thing that person sues for

· Negligence the failure to use reasonable care (failure to take reasonable care that resulted in damages)

· Negligence has elements:

· Someone owes a duty to someone else; someone breached that duty; and that breach of duty caused damages

· Duty

· Breached

· Causation

· Stare Decisis: precedent, the principle that has been established by prior court rulings that is upheld if the court decisions to follow

· Laws and interpretations of laws are created from prior legal cases and decisions and judges are obligated to respect the precedent

· Duty: doctor patient, landlord tenant, parent child

· Breached the violation of the duty

· Causation comes in two forms

· You are the actual cause (you did it)

· You are the proximate cause (you didn’t exercise reasonable care)

· When suing someone you are looking for a deep pocket

· Strict Liability—something is so obviously dangerous that if someone gets hurt you are liable

Strict Liability –ON THE TEST

· Liability is presumed—the presumption is yours to defend is strict liability

· You need to defend that what they did is within the boundaries of the law—shifting the decision to the plaintiff if you are defending

Negligence “per se”

· It is the law

· If you violate the law or a policy it is presumed that you are negligent

· If you are following the law vs. obstruction of the law

Criminal Law

Common law

Assault and Battery

· Assault putting someone in the immediate apprehension of physical harm

· Assault needs to be aware

· Battery the unlawful touching

· Assault and batter exists on both sides of the law

Robbery and Burglary

· Robbed and burglary ONT THE TEST

· Burglary is a crime against property

· Robbery his a crime against a person

· Burglary: the unlawful entry into the dwelling of another with the intent to commit a larceny or a felony there in

· Walking into a house that doesn’t just include just residences (if you were to leave your door open then that would be a violation in the old common law—but the modern conception would be that burglary occurred without the need to manipulate anything to get in)

· Burglary would look into the if the person had the intent to commit a felony

· Burglary the intent is the necessity to

· Robbery: the unlawful taking of an item from another by force or fear

· Threatening a person would be robbery

· If you touch a person then it would be robbery

· Leaving burglary or theft into robbery

Homicide

· Homicide: unlawful of a human being with malice and forethought

· If you were engaged in a felony and a person dies then it is felony murder

· If you were engaged in a felony that resulted in death then you were engaged in murder

False Pretenses

· Misrepresentation with the material fact with the intent to defraud

· Material Fact is the complicated part

· The intention to fraud with using the misrepresentation of the facts

· Material fact: something that a reasonable person would take into consideration before entering a transaction

The deeper definitions and elements would be our essays or short answers in the exam

Bill of Rights

All the laws we look into will take into consideration and expand

1. Speech, religion, press, and assembly

a. Right to practice religion and the establishment clause

2. Well regulated militia The Right to Bear Arms

3. No Quartering Act—cannot be forced by troops to let them live in your home

4. Freedom from unnecessary search and seizure

5. Due Process Clause

a. Impartial judge

b. Freedom from self-incrimination

c. Double jeopardy

6. Right to speedy trial and right to counsel

7. Trial by jury in civil cases

8. No excessive bail and cruel and unusual punishment

9. These rights do not deny other rights—they are not exclusive

10. Rights that are not reserved by the federal government here are reserved by the states

a. Example medical marijuana

b. Everything that the federal government doesn’t have then the states have it

c. States sovereignty

Government center in Orange County and there are not a lot of homeless services available

The center is both the federal

Service providers are coming out there to provide services for people

This has become a de facto homeless center

Argument: it all has to go and come up with a better argument

Negative: keep it all the same

Health and safety

Santa Ana Homelessness Issue

Emergency Shelter

Housing Authority—how do you guarantee that a person can have public housing

Public Housing is where the government owns the housing NYC has 180,000 public housing buildings

County Housing

Wet Housing: here’s a roof and then we’ll treat you—the NIMBYism with services and shelter not in their housing areas

Wanting to have housing for addicts and alcoholics without providing the help

The issue with veteran’s having housing issues—how they were discharged

Removing the honorable discharge portion of the requirements so that they can be helped with housing as well

How to deal with the housing issue with homelessness and this will be reviewed when we are looking at the basic civil rights that should and could exist

Lecture Notes 6 September 2016 Week 2

Midterm: 50 multiple choice, true false, and short answer open ended questions

At the end of it he will hand us a bonus piece that we can choose to do and after turning in the exam can use my laptop

Brief Presentation

New York Times Co vs. Sullivan

Sullivan’s worry about future implications about the article (ADVERTISEMENT) and with the recent issues with civil rights movement and Martin Luther King Jr

His case didn’t require him to show how he was harmed directly (Alabama’s Law)—Difference between punitive damages and general damages are not necessary to differentiate between in the two when entering the case and verdict (libelous per se)

14th Amendment due process clause applies the Bill of Rights to the states

Terminiello v. Chicago 337 U.S. 1, 4

De Jonge v. Oregon 299 U.S. 353

DEFINITION FROM SULLIVAN FOR TEST: “actual malice—a knowing or reckless disregard for the truth

Expanded to recklessly collected information now includes checking your sources must have some “journalistic integrity” to be protected behind Sullivan

History goes back to those coming over here to have a voice and not be suppressed by the government

Government saying what you can and can’t say is a violation of the 1st amendment and the concept of “political correctness”

Not having a state run news agency—the importance of having the press (freedom) to be the voice of the people

SPEECH NOT PROTECTED: Defamation—a false statement about another person that is published to a 3rd party (libel vs. slander)

TRUTH THE ABSOLUTE DEFENSE TO DEFAMATION

Freedom of Speech

· Government can’t force you to speak or say something

· Art work expression

· People stop it not the government

In Class Activity

Colin Kaepernick’s explanation of why he sat during the National Anthem

Defense:

First Amendment right

How many others don’t pay attention during the National Anthem

Exercising his constitutional rights (supported by the President)

IRAC—fundamentally understand the issue and do the reading not so much on the format

NTY vs. US

NEAR vs. Minnesota

No prior restraint unless certain (3) cases

ON TEST—GIDEON VS WAINWRIGHT (CIVIL GIDEON)

Week 3 Lecture notes 13 September 2016

Freedom of Speech and Freedom of the Press

Speech will mean media for the sake of the press—any way that someone communicates in a mass operation

Freedoms protected by the Constitution and Freedoms not protected by the Constitution

New York Times Co v Sullivan

· Law suit on the base of libel for defamation

· Needing the malice

Limited Issue Public Official—a public issue for limited issue

Public official known off of one thing

The slander for defamation with a limited issue public official has to be a suit based upon what they are known for then malice needs to be proved

Example suing for fraudulent taxes to Warren Buffet and being known for finances—then he has to prove “actual malice” if he were to sue for slander

Free Speech is speech without restraint

However looking at what the exceptions are in free speech

NEAR v Minnesota

· Jay M Near publishes a newspaper anti everything

· A criminal case

· “Injunctions” against him for “public nuisance”

· Publishes an article on a local mobster

· Near began his defense mounted upon the First Amendment

· Rule: you can’t restrict things like this (near’s hate Sunday paper) just because you don’t like what it says

· Prior Restraint is not valid—you can’t censor newspapers

· Crucial military publication, anything obscene, and anything that would incite actionable acts of violence

New York Times Co v United States

· The publication of the Pentagon Papers in 1971 and to enjoin the newspapers

Whitney v California

· Constitution does not protect when a person is to incite the over throwing of the government

Schenck v US and Brandenburg v Ohio and What is on the Exam

· Know what the rule was for Schenck: clear and present danger

· Know what the rule was for Brandenburg: imminent lawlessness

· Know which one came first (California is an exception with needing to point out a specific action in order to be considered as “imminent lawless action”)

(Abrams v US and Dennis v US Whitney v California Schenck v US Gitlow v US)

CSPAN video: www.cspan.org/video/?323

The Freedom of Speech Talk

· Institute for Public Accuracy

· National Press Club

· Myron Belkind

· The support for Mr. Rysen(?) the national press club gave him the freedom of the speech award in 2012

· The government’s attempts to block the reporting of the actions in Ferguson, MO

· Norman Solomon RootsAction.org and Co-Founder & Institute for Public Accuracy Executive Director

· The attempts of the government to stop the press from publishing the acts of the government with surveillance, giving Iran faulty nuclear, and Botnet etc.

· The “freezing effect” now no longer a “chilling effect”

· Now it is stopped

· To President Obama and Halter, your effort to compel new york times reporter james risen to reveal his resources is an assault on the freedom of press we urge you in the strongest terms to halt action on risen and to safeguard the freedom of the speech and for journalists to uphold defending their sources identity

· Organizing the actions against the press and mobilizing an attempt to educate the public with what is going on with the attempts and current political pressures to stop the press

· The collision between an administration that “talks good and does bad” and mobilize a citizenry to understand what is at stake

· Culmination of one phase of that and the initiation of the next

· To “lance that boil of fear and intimidation” that affects the actions of the press and the willingness to publish

· The efforts to prevent the government from future and current actions to threaten the publication

· Enactment of t a meaningful “shield law” that the media is separate from the government and that they are needed and their independence is necessary to hold the government accountable for their actions

· Subpoenas for the press

· Journalist shield laws that have been presented in the Congress

· Not saying that the press is above the law and above the judicial branch but that a sense of independence is necessary

· Gregg Leslie

· Reporters committee for Freedom of the Press and Legal Defense Director & Attorney

· The massive subpoena of the AP phone record in the search for a CIA operator

· The Fox News Reporter’s email account breached accused of an espionage charge by asking a government employee about/for information

· Making greater notification for journalist before their third party communications were looked at; making it more difficult to the prosecutor but it helps keep the government more accountable

· Reporter’s privilege of not needing to disclose their sources similar to those of a spouse and doctor and the necessity to provide the shield laws for the press

· Congress needs a meaningful shield and the government’s accountability to the people are held by watchdogs there needs to be something enacted of their powers to stop this pressure and there is a necessity for reporters

· Whistle blowers are needed for the government and for the reporters as sources there is a need for protection of whistleblowers and the communications between the reporter and the whistle blowers

· James Risen has refused to name a source for information about a CIA operation in Iran that appeared in his book “State of War”

· The Obama administration has pursued 8 cases under the Espionage Act the Committee to Protect Journalists

· Courtney Radsch: committee to Protect Journalists Advocacy Director

· Leak investigations and surveillance revelations have made government officials fearful of reporting and acting as a whistle blower

· Journalists more broadly has a serious chilling or freezing effect on the press

· Without the backing of a large media outlet with a large team of lawyers then those individual reporters are even more fearful of the reporting of what the government is doing

· Looking at National Security and Anti-State Charges as a cover to suppress journalists—subversion or terrorism is the anti-state charges

· The subversion or terrorism as the source of or charge against journalists as Anti-State charge

· This is a higher degree of the past charges of defamation or libel

· It is difficult to go abroad and advocate on behalf of freedom when these same freedoms are abridged at home

· Government to uphold the Constitution and democratic principles upon which the society is built and the ensure the functioning of the democratic process in which the freedom of the speech is a crucial role

· Delphine Halgand: Reporters Without Borders

· Measures the freedom of information in 186 countries and the freedom that reporters, bloggers, and others enjoy

· US holds the 46th position on this index

· No true freedom of the press or speech if whistleblowers are not upheld

· Crackdown on whistleblowers can be said to restrict all not approved information of the government by the press

· Reporters without borders are defending and assisting news providers all around the world

· Phil Donahue the issues with that come with corporate media (former talk show host) you need to have the availability of larger numbers of people to create a middle where the real news can be found

· 5 MNC’s are now controlling the media or the middle mainstream media has a lot to report and a lot to be ashamed of due to no longer be righting back

· No longer

· New york times reporter james risen was subpoenaed to testify at the trial of a former CIA operation

· Risen has refused to reveal his source—taking advantage of his first amendment right

· This is an issue of not necessarily the threat to security but the embarrassment of the administration

· James Risen, New York Times journalist and author “State of War”

· About not just him but some basic issues that affect all journalists and all Americans

· The Justice Department in the Obama Administration were the ones who turned this into a fundamental fight against press freedom in their appeal to the 4th circuit claiming the fundamental thing this case is about is that there is no such thing as a reporter’s privilege thus turning this case into a show down of the first amendment and the freedom of the press granted by the US and the Constitution

· The fundamental question of the freedom of the press and the freedoms that are given to the press that are now being suppressed by the administration under the guise of national security, espionage, and terrorism

· Ahmed ghappour university of California hastings school of law serves as outside counsel for the Freedom of the Press Foundation

· How does the First Amendment and the Freedom of the Press survive in a Post-9/11 age? That is all the same issue now—this is the central or core question that is being addressed

· The subpoena to reveal his source expired during the Bush administration and was renewed in the Obama Administration the harassment that Risen has experienced during both administrations (public and private efforts) to harass him that started in the Bush Administration

· The statements issued by Pulitzer Prize winners—rootsaction.org and it is a vendetta against the press

· Company Man book by former CIA director

· The political nature by the Justice Department on this issue

· Career Washington v. Political Washington

· FBI and NSA act as career Washington and post 9/11 they have had more power to investigate, track, and find information

· There is a need for the large wide ground support

· Policy by the Justice Department of what they will do when issuing

· The hesitation of the AUSA to get permission from the attorney general and Washington

· Rather than the AUSA that can subpoena anyone and investigate anyone

Testable Items: laws designed to protect reporters and their sources are called “Shield Laws” just know what shield laws are and know the subject matter

Exclusions to Speech:

Obscenity is NOT protected speech in 1920 that could have been anything outside the societal expected norm

Whether or not obscenity is protected ends in CA

Jacob Ellis v Ohio—Ellis wanted to show a semi-sexual scene in his movie and that is banned in Ohio by law and by showing the moving

Justice Potter Stewart “Doesn’t know what obscenity is but he knows it when he sees it”—an explanation by the Supreme Court to explicitly identify what obscenity is—TEST

Marvin Miller—had a magazine that was mailed with sexual images and the magazine went to a family restaurant in new port beach and he was arrested and goes to the

Miller v. California—the Miller Test came out of this by the Supreme Court and obscenity needs to meet all three standards

1. Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to prurient interests;

2. Whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, specifically defined by applicable state law; and

3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Stage One: cannot ever be overcome

EXCEPTION with the New York case with the child pornography laws

Ferber rule—if the person is not underage then the person is not in violation of child porn laws

ON THE TEST: Miller Test and New York v Ferber

Miller Test is on the test WORD FOR WORD

Know the child pornography case example question “what was the effect of the New York v Ferber ruling” it found that child pornography explicitly lacked any societal interest and was not protected by the First Amendment

Need to know that child pornography is NOT protected and that the First Amendment will not help you here

Intellectual Property: knowing what this concept is which is encompasses the three big parts of the intellectual property

Trademark: what identifies you

Example—coca-cola creates a song for the super bowl and their trademark is that they are the cursive large Coca-Cola

Going to the US PTO to file for it after you have already established it—once you have a trademark a little r after it you had to have filed with the US Patent and Trade Office once you get the trademark you get this symbol ®

Copyright: something that you create

Examples—a song, a book, a speech, a haiku, a facebook status

When you have it you can put a little c at the end of it

File a copyright when you need to prove that you created this and that it is your intellectual property before you go file ©

Patent: a novel idea for an actual process

Example—a new way to do something, to make something, a new gear in an engine, a new type of engine, a new type of water ball

Poor man’s patent when mailing a description to yourself and open it then it doesn’t mean anything

Filing a patent application part of the process when you submit the patent—hire an engineer and they pull apart every single piece and then put it back together in the manner which is your idea and you need to compare it with every other patent to determine whether or not anything is similar to this ℗

Most patents are either rejected or abandoned

In the book there is a significant amount on privacy: Roe v Wade

· It is included under our privacy argument because that is how the judges looked at the case by looking at our constitution and extending our right

· Privacy issue the sensitivity

· Conglomerated case a build up of 18 years of cases that resulted in Roe v Wade

· The Supreme Court found that there was an “inferred right to privacy in the US Constitution”

· The Supreme Court recognized the inferred right to privacy and the California Court confirmed it

In class: Edward Snowden

Freedom of Speech and Prior Restraint

Week 4 Lecture Notes 20 September 2016

Federal Law Government Policy Alexander S. Balkin, Esq.

1. Bio

a. Command inspector general: Naval Supply Systems Command—Fleet Logistics Center San Diego

i. IG (investigating government watchdog)

ii.

b. Previous Experience

i. U.S. Nuclear Regulatory Commission (Fiscal Policy/Rulemaking/Strategic Planning)

ii. Department of Defense (Acquisition Policy)

iii. U.S. House of Representatives (CA-46 Dana Rohrabacher)

2. Publications

a. When it comes to presidential candidates you reap what you sow the hill.com july 22,2016

3. Lecture Roadmap

a. Brief overview of Federal Government structure and purpose

b. Difference between law & regulation

c. How to find/research federal regulations

d. Considerations in lawmaking

e. Considerations in rulemaking

f. Practical application

g. Part II: Presidential Electoral Procedure

4. The Basics

a. What is the basic form of the American government?

i. Democracy? Yes

ii. Republic? Yes

iii. Representative Democracy

5. Form of government

a. In additional to being a representative democracy the United States is also constitutional democracy and the US is therefore also a constitutional republic indeed, the united states might be labeled a constitutional federal representative democracy but where one word is used with all the over simplication that this necessary entails democracy and republic both work

6. Basics

a. Branches of the government and their functions

i. Legislative branch

1. Creation of laws (in theory)

ii. Judicial

1. Interpretation of the law

iii. Executive

1. Execution of laws

a. Executive level agencies—creation of the President in order to carry out the law

7. What is law

a. Law a system of rules that a particular country or community recognizes as regulating the actions of its members and may enforce by the imposition of penalties

8. Where does law come from?

a. Sources of American law

i. Constitution: Foundation document ( delegates authority to create other laws )

1. Whether or not an agency or individual has the authority to do something

ii. Statute/Act: Laws enacted by the legislature

iii. Case Law: Organic creation of law through judicial interpretation (Common Law)

1. Created through judicial interpretation the natural one that comes about

iv. Administrative law (law-ish): Regulations created by Federal agencies/entities

1. The president uses his power to delegate laws created by congress that his agencies will carry out

9. Where is Administrative Law in the process?

a. Constitution: Established the form of government and delegates authority to the branches

b. Legislature: Create (generally) high level/broad U.S.C.

c. Executive

i. Code of Federal Regulations C.F.R. created bythe federal agencies/entities when they create administrative law

10. What are regulations

a. Administrative law

b. Rules and administrative codes issued by governmental agencies to enforce/execute/carry out laws although tye are not laws regulations have the force of law since they are adopted under authority granted by statutes and often include pentalites for violations

11. Regulations c

a. Come from the executive branch this is what we mean when we discuss federal law

Examples of Law

42 U.S.C. §

Law: atomic energy act of 1954 says…regulate domestic nuclear reactors

Regulation: PART 170-FEES FOR FACILITIES MATERIALS, IMPORT, AND EXPORT LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT OF 1954 AS AMENDED

Law high level regulation very tailored to a situation

Considerations: Law Making

· “Law like sausages cease to inspire respect in proportion as we know how they are made”

· John Godfrey Saxe

· Q: Why is lawmaking so terrible to witness?

· HINT: Incentives

Rulemaking: the process through which federal agencies go through in order to make regulations

Administrative Procedure Act

· Requires agencies to

· Keep the public informed of their organization, procedures and rules

· Provide for public participation in the rulemaking process

· Establish uniform standards for the conduct of formal rulemaking and adjudication

· Define the scope of judicial review

UNITED STATES CODE: the following provisions in the electoral college

Electoral college is a process not a place

538 electors total of all the members of congress

Fat Leonard fraud scandal

The Power Point he presented will be put online on Blackboard

Midterm

Example for briefing the case

Sample Answer being asked by a district attorney for a filing determination

The sample answer format should meet the same format as the question

Burglary

The first issue is whether Doe committed the crime of burglary.

(Rule)

Burlary is unlawful entry into the dwelling of another, with the intent to commit a larceny or felony therein.

Intent to Commit a Larceny or Felony—this fails because there isn’t any

Unlawful taking: in the instant matter, doe did take a case of beer without paying for it, amounting to an unlawful taking

By force or fear (this our conclusion and choose a position here)

Do took the case of beer after being refused the opportunity

Discuss all the points where he will be charged with not just one (everything he wrote is abbreviated in the online example—use his sample as a rule guide not road map

Analysis is each point below then we are going to be doing our analysis and that is where we are getting our points

Issue: next is the matter of filing a battery charge

The common law (penal code)

Battery is the unlawful offensive touching or contact with another

Using the facts in the instant matter, there is no allegation that any contact was made between Doe and the store clerk, as such this crime will not attach

Looking at all this and seeing then how each would attach—Doe can only be likely charged with theft due to the facts supporting every point with theft

Our test next week will most likely be CRIMES

Our final will be TORTS

This first time writing a test like this (the issue brief) will be extra credit and the final will be more difficult

Locate the Issue

Writing the Correct Rule

Analysis is where we get the largest share of the points—this is where we get our logical inference

Application of the facts and law into a real life situation

Having it broken up like this on the test will be the easiest instead of having it all in one bulk

BRING A SCANTRON for the multiple choice

Short answer just write on the test it wont be too long

The extra credit can be just typed or written separately as long as it is handed to him before we leave

All employment rights are based upon American civil rights

Miranda Rights will be on the test

Fails to talk about the act of coercion

If you have an attorney and your rights have been read to you then your confession will stand—unless coercion is used for example standing over you not giving you water or letting you use the restroom

A ruse is absolutely allowed

Miranda has the protection of you knowing your rights

Due Process—before anything is taken from you have these certain rights

He reframes the argument for the state with finding the

Katesenbach v

With the civil rights movement

Looking at this one restaurant that

Article 1 Section 8 clause 3

The state before this created a negative commerce clause a dormant commerce clause

Congress saying No

All these restaurants doing this and these restaurants in a collective bucket by looking at them all together are probably getting their meat out of state—interstate commerce clause

Took their federal rules and used the commerce clause and that was the basis for Congress to create rules for employees

Biggest way the commerce clause is setting a tenant or case in the law is the due process clause

Before the government can take something from you—you have a right to be heard

When you are working at one of these agencies by you working there you have a vested right in something

You having your employment (any government employers) your due process rights have to be followed

ON TEST: PRIVATE EMPLOYERS THE STATE’S POLICE POWERS

States apply a version of the federal employee discrimination and employee rights as they apply to the state—this is the best way for them to take the federal level laws and apply them to the state

“At will” employers—you are hired and fired without due process

Contract: the collective bargaining agreement it is the employers granting the due process right

ON THE TEST AND CAN GOOGLE

UNDER FEDERAL LAW EMPLOYERS CANNOT DISCRIMINATE UNDER THESE TENANTS: RACE

SEX

PREGNANCY

RELIGION

NATIONAL ORIGIN

DISABILITY

AGE

MILITARY SERVICE OR AFFILIATION

BANKRUPTCY OR DEBT OR STATUS

GENETIC INFORMATION

CITIZENSHIP

Fourth Amendment equal protection clause with due process and the fifth amendment will be your back up to your equal protection clause

Title 7 is what created the employment portion as to how it applied to civil rights

· Arguing the commerce clause is how they expanded it and used as their basis

Standards in each law

· Age Discrimination and Employment Act 1978

· If you have more 20 workers at the office then you cannot discriminate on age with people over 40 AGE 40—LOOKING FOR THIS ON THE TEST

· Rehabilitation Act of 1973

· Most important thing is the protection for people with disabilities Section 504

· In Section 504 of this act: requires reasonable accommodations ON THE TEST

· Section 504 applies to anybody who gets federal money

· Cities federal authorities housing departments universities schools if you get a federal grant or federal money then section 504 applies

· Reasonable accommodation: for those who are

· In California if you are doing 70% of upgrades to a building (of its value) in renovations then you have to do all the ADA updates

· Reasonable accommodation: an alteration of policy to accommodate a disability

· Anyone who gets federal money then has to pay attention to Section 504

· Reasonable request

· Nexus is there a nexus for it—somebody has to certify that it is reasonable that they have something and that what they are asking for is reasonable

· Disability

· Connected

· This is what the nexus shows

· Fundamentally Alter our policies or operations

· This grants the big part—if you get federal money then you have to comply with Section 504—they give a very narrow idea of accommodations where as ADA gives more definition

· Anybody with help, treats, or deals with this then they can provide the nexus and can certify this

· American’s with Disabilities Act ADA

· Two separate distinct laws

· Requires reasonable accommodations

· Requires architectural changes and making everything accessible

· This is the blanket

· Gives us: A DISABILITY IS A MENTAL OR PHYSICAL HEALTH CONDITION THAT SUBSTANTIALLY LIMITS ONE OR MORE LIFE ACTIVITIES (on the test)

· Applies to everybody for all intensive purposes but it defines what a disability is vs Section 504 just requires federal money

· Employment litigation

· If you are going to work with the government

· Sexual harassment training, discriminate based upon race

· If you did do that or if they alleged that you did then they have to get from the Department of

· You need to make a claim directly to that government agency a letter that says you fired me because of this and I want damages need to do this within 6 months of injury—California a Request for Damages within 6 months of injury

· If they departments says that they will not give you anything then you will sue them

· If the dollar gets one dollar in fines or penalties then the defendant has to pay every single dime that they incurred

· If someone has a pension then the damages are through the roof

·

Test question: an employer says that an employee cannot have their wheelchair in the office then you would sue under both Section 504 and ADA