1
COMM 3410 COMMERCIAL LAW I OUTLINE STUDY GUIDE
NOTES SPECIFIC TO REAL EXAM
I. INTRODUCTION to BUSINESS LAW:
A. Definition: creation and enforcement of…
1. Duties - unwritten responsibilities
2. Obligations - certain arrangements or agreements to bind yourself to a course of
action that becomes legally binding
3. Rights - constitutional, statutory
B. Purpose of law
1. To avoid anarchy
2. To impose a moral code on society
3. To provide a social construct that we must abide by
4. To protect ourselves and others - health, safety, welfare
5. To resolve conflicts
6. To add structure
7. Universality/consistency/stability
C. Relationship b/w Ethics and Law:
1. Ethics: individual standards of what is fair based on our moral beliefs/principles
2. Law is established to…
a. Reflect moral principles shared by society
b. Can be morally neutral; the law is the moral minimum
D. Classifications of Law:
1. Substantive and Procedural
1. Substantive: define specific rights/duties to which a person is entitled or
obligated to perform, enforced by procedural laws
2. Procedural: specify the process by which substantive laws are enforced
2. Criminal and Civil Law
1. Criminal: rules that protect society as a whole by establishing certain minimum
standards of conduct/of acceptable behavior; establish the punishment for those
who don’t abide by those standards
- Deterrence
- To punish
- The government brings criminal actions, and only the government
2. Civil: Laws concerned with private relations between members of the community
(individuals, business orgs.)
- Civil action is always brought by the injured party
E. Derivation of American Legal System
1. Options:
a. Civil law system (Louisiana): based on codes (written laws)
b. Common law system: judges are allowed to make law as well
F. Law v Equity
,2
1. Court of law
a. King’s law
b. Rigid law
c. Punished unfairly
d. Only remedy is money
2. Court of equity
a. Church of England
b. Based on fairness
c. Remedy is more than money
3. Historical differences
a. Different buildings
b. Different decision maker - judge v. chancellor
WENT AWAY IN 2007
c. Different procedures
d. Different rules
e. Different remedies
f. Enforcement of remedies
II. PRIMARY SOURCES OF LAW - Constitutional, Statutory, Admin, C/L
A. Constitutional Law - US Constitution
1. Federalism
2. System of checks and balances
3. Judicial Review
a. Supremacy Clause, Article VI, Clause 2 states "This Constitution and the
laws of the U.S … shall be the supreme law of the land." It goes on to say
that, "judges in every state shall be bound .”
b. Marbury v Madison (1803)
c. Judicial Restraint
d. Constitutional Interpretation: 2 basic theories
(1) Strict Constructionism
(2) Judicial Activists
4. Constitutional Powers granted to Congress to regulate business
a. Commerce Clause:
(1) Gibbons v Ogden (1824)
(2) Wickard v Filburn (1942)
(3) United States v. Lopez (1995)
(4) Gonales v Raich (2005)
(5) Patient Protection and Affordable Care Act (PPACA).!
5. Article IV: Full Faith and Credit (Sec 1) Privileges and Immunities (Sec 2)
a. Full Faith and Credit Clause: honor other states laws
b. Privileges and Immunities Clause: ensure that when someone visits a state
they have same rights and privileges of citizens of that state
,3
● Only fundamental rights
● Exceptions: commercial things like tuition and licenses
6. Bill of Rights
Amendment 1 Freedom of religion/press/speech/assembly/to protest
Amendment 2 Right to bear arms
Amendment 3 Quartering of soldiers
Amendment 4 Search and seizure
Amendment 5 Right against self-incrimination
Amendment 6 Right to a fair trial
Amendment 7 Rights in civil cases
Amendment 8 Rights v. cruel and unusual punish. Crim case
Amendment 9 Rights retained by the People
Amendment 10 States' rights
7. USSC Interpretation of the 1st Amendment
a. Religion
(1) The establishment clause: government can’t establish a religion
1. Absolute right
(2) The exercise clause: gov can’t prevent free exercise of religion.
● Not absolute. Gov needs to establish a compelling interest
in creating the restriction
(a) Wisconsin v Yoder (1972): government has no compelling
interest to make amish kids stay in school
(b) Employment Division v Smith (1990): government has
compelling interest to keep you from driving around on
LSD, even if its ‘religious’
(c) Burwell v Hobby Lobby Stores (2014): government can’t
force birth control payments from employers
(d) Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission (2018): remanded because too mean → new
case: Arlene’s Flowers v. State of Washington: SCOTUS
doesn’t grat writ so decided in lower court. Not selling
flowers to queer couple is discrimination!!!
b. Freedom of Speech – not absolute, but close
a. Two types of restrictions on speech:
i. Time, manner, and place
ii. Content → governed and reviewed w/ strict scrutiny
(1) Criticism of the government
(a) Federal Alien and Sedition Act (1798): can’t say bad things
about government. 10 people convicted under this law and later
pardoned.
, 4
(b) Federal Sedition Act (1917) / Schenck v US (1919): can’t
shit talk military during wartime. In Schenck, man shit on
government and his conviction was upheld. His words made a
clear and present danger.
1. War changes everything!
2. Sedition act repealed a year later
(c) Federal Alien and Registration Act (1940):
(d) Brandenburg v. Ohio (1969): repealed Schneck. The
Constitutional guarantees don’t permit states to forbid advocating
for use of force except where such advocacy is directed to inciting
imminent lawless action and is likely to incite such action.
(e) U.S. v. O’Brien (1968): burning draft cards illegal. Upheld
3. When the law prohibits conflict that combines speech and
non-speech elements, if there is sufficiently important
interest in regulating the non-speech element this can
justify any incidental limitation on 1st Amendment
freedoms
(f) Cohen v. California (1971): First Amendment protects
wearing fuck the draft shirt (could not be convicted for disturbing
the peace for wearing the shirt in public)
(2) Flag Burning Controversy
i. Texas v. Johnson (1989): flag burning @ communist
convention, SCOTUS says it’s okay
ii. Federal Flag Protection Act (1989): illegal to burn flags
iii. U.S. v Eichman (1990): not illegal to burn flags!!!
c. Freedom of the Press (the Constitution treats as a foundation of
democracy)
(1) NY Times Co. v US (1971)
d. Freedom of Assembly
(1) Boy Scouts of America v Dale (2000)
8. USSC Interpretation of the Second Amendment
a. Militia or Right to arms – what is the purpose???
1. It’s not an absolute right to own a gun
b. Caselaw
(1) U.S. v. Cruikshank (1875): state law in question, so federal
government only controls guns. State law is OK to regulate
(2) Presser v. Illinois (1886): affirms Cruikshank
(3) United States v. Miller (1939): federal law that regulates guns
because of gangsters. SCOTUS says law doesn’t violate USC
because nobody needs a sawed-off shotgun to regulate a militia
COMM 3410 COMMERCIAL LAW I OUTLINE STUDY GUIDE
NOTES SPECIFIC TO REAL EXAM
I. INTRODUCTION to BUSINESS LAW:
A. Definition: creation and enforcement of…
1. Duties - unwritten responsibilities
2. Obligations - certain arrangements or agreements to bind yourself to a course of
action that becomes legally binding
3. Rights - constitutional, statutory
B. Purpose of law
1. To avoid anarchy
2. To impose a moral code on society
3. To provide a social construct that we must abide by
4. To protect ourselves and others - health, safety, welfare
5. To resolve conflicts
6. To add structure
7. Universality/consistency/stability
C. Relationship b/w Ethics and Law:
1. Ethics: individual standards of what is fair based on our moral beliefs/principles
2. Law is established to…
a. Reflect moral principles shared by society
b. Can be morally neutral; the law is the moral minimum
D. Classifications of Law:
1. Substantive and Procedural
1. Substantive: define specific rights/duties to which a person is entitled or
obligated to perform, enforced by procedural laws
2. Procedural: specify the process by which substantive laws are enforced
2. Criminal and Civil Law
1. Criminal: rules that protect society as a whole by establishing certain minimum
standards of conduct/of acceptable behavior; establish the punishment for those
who don’t abide by those standards
- Deterrence
- To punish
- The government brings criminal actions, and only the government
2. Civil: Laws concerned with private relations between members of the community
(individuals, business orgs.)
- Civil action is always brought by the injured party
E. Derivation of American Legal System
1. Options:
a. Civil law system (Louisiana): based on codes (written laws)
b. Common law system: judges are allowed to make law as well
F. Law v Equity
,2
1. Court of law
a. King’s law
b. Rigid law
c. Punished unfairly
d. Only remedy is money
2. Court of equity
a. Church of England
b. Based on fairness
c. Remedy is more than money
3. Historical differences
a. Different buildings
b. Different decision maker - judge v. chancellor
WENT AWAY IN 2007
c. Different procedures
d. Different rules
e. Different remedies
f. Enforcement of remedies
II. PRIMARY SOURCES OF LAW - Constitutional, Statutory, Admin, C/L
A. Constitutional Law - US Constitution
1. Federalism
2. System of checks and balances
3. Judicial Review
a. Supremacy Clause, Article VI, Clause 2 states "This Constitution and the
laws of the U.S … shall be the supreme law of the land." It goes on to say
that, "judges in every state shall be bound .”
b. Marbury v Madison (1803)
c. Judicial Restraint
d. Constitutional Interpretation: 2 basic theories
(1) Strict Constructionism
(2) Judicial Activists
4. Constitutional Powers granted to Congress to regulate business
a. Commerce Clause:
(1) Gibbons v Ogden (1824)
(2) Wickard v Filburn (1942)
(3) United States v. Lopez (1995)
(4) Gonales v Raich (2005)
(5) Patient Protection and Affordable Care Act (PPACA).!
5. Article IV: Full Faith and Credit (Sec 1) Privileges and Immunities (Sec 2)
a. Full Faith and Credit Clause: honor other states laws
b. Privileges and Immunities Clause: ensure that when someone visits a state
they have same rights and privileges of citizens of that state
,3
● Only fundamental rights
● Exceptions: commercial things like tuition and licenses
6. Bill of Rights
Amendment 1 Freedom of religion/press/speech/assembly/to protest
Amendment 2 Right to bear arms
Amendment 3 Quartering of soldiers
Amendment 4 Search and seizure
Amendment 5 Right against self-incrimination
Amendment 6 Right to a fair trial
Amendment 7 Rights in civil cases
Amendment 8 Rights v. cruel and unusual punish. Crim case
Amendment 9 Rights retained by the People
Amendment 10 States' rights
7. USSC Interpretation of the 1st Amendment
a. Religion
(1) The establishment clause: government can’t establish a religion
1. Absolute right
(2) The exercise clause: gov can’t prevent free exercise of religion.
● Not absolute. Gov needs to establish a compelling interest
in creating the restriction
(a) Wisconsin v Yoder (1972): government has no compelling
interest to make amish kids stay in school
(b) Employment Division v Smith (1990): government has
compelling interest to keep you from driving around on
LSD, even if its ‘religious’
(c) Burwell v Hobby Lobby Stores (2014): government can’t
force birth control payments from employers
(d) Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission (2018): remanded because too mean → new
case: Arlene’s Flowers v. State of Washington: SCOTUS
doesn’t grat writ so decided in lower court. Not selling
flowers to queer couple is discrimination!!!
b. Freedom of Speech – not absolute, but close
a. Two types of restrictions on speech:
i. Time, manner, and place
ii. Content → governed and reviewed w/ strict scrutiny
(1) Criticism of the government
(a) Federal Alien and Sedition Act (1798): can’t say bad things
about government. 10 people convicted under this law and later
pardoned.
, 4
(b) Federal Sedition Act (1917) / Schenck v US (1919): can’t
shit talk military during wartime. In Schenck, man shit on
government and his conviction was upheld. His words made a
clear and present danger.
1. War changes everything!
2. Sedition act repealed a year later
(c) Federal Alien and Registration Act (1940):
(d) Brandenburg v. Ohio (1969): repealed Schneck. The
Constitutional guarantees don’t permit states to forbid advocating
for use of force except where such advocacy is directed to inciting
imminent lawless action and is likely to incite such action.
(e) U.S. v. O’Brien (1968): burning draft cards illegal. Upheld
3. When the law prohibits conflict that combines speech and
non-speech elements, if there is sufficiently important
interest in regulating the non-speech element this can
justify any incidental limitation on 1st Amendment
freedoms
(f) Cohen v. California (1971): First Amendment protects
wearing fuck the draft shirt (could not be convicted for disturbing
the peace for wearing the shirt in public)
(2) Flag Burning Controversy
i. Texas v. Johnson (1989): flag burning @ communist
convention, SCOTUS says it’s okay
ii. Federal Flag Protection Act (1989): illegal to burn flags
iii. U.S. v Eichman (1990): not illegal to burn flags!!!
c. Freedom of the Press (the Constitution treats as a foundation of
democracy)
(1) NY Times Co. v US (1971)
d. Freedom of Assembly
(1) Boy Scouts of America v Dale (2000)
8. USSC Interpretation of the Second Amendment
a. Militia or Right to arms – what is the purpose???
1. It’s not an absolute right to own a gun
b. Caselaw
(1) U.S. v. Cruikshank (1875): state law in question, so federal
government only controls guns. State law is OK to regulate
(2) Presser v. Illinois (1886): affirms Cruikshank
(3) United States v. Miller (1939): federal law that regulates guns
because of gangsters. SCOTUS says law doesn’t violate USC
because nobody needs a sawed-off shotgun to regulate a militia
