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Essay Instructions: FIRST NATIONAL BANK v. BELLOTTI
435 U.S. 765 (1978)

Comment: I have edited this opinion. The full text can be found at the citation above.
Write a case report to answer the questions below:

Questions:

1. What did the Massachusetts legislature do?
2. What did the Massachusetts Supreme Judicial Court decide? Its reasoning?
3. How did the U.S. Supreme Court rephrase the initial question?
4. Why doesn't it make a difference whether the corporate speech is about matters that materially affect its business interests?
5. What is the constitutional standard used to determine whether government regulation of politial speech is permissible?
6. What state interests did Massachusetts assert to justify its regulation of corporate political speech? What was the Supreme Court's response to them?
7. What is Rhenquist's fundamental argument?

JUDGES: POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ. REHNQUIST, J., filed a dissenting opinion.

In sustaining a state criminal statute that forbids certain expenditures by banks and business corporations for the purpose of influencing the vote on referendum proposals, the Massachusetts Supreme Judicial Court held that the First Amendment rights of a corporation are limited to issues that materially affect its business, property, or assets. The court rejected appellants' claim that the statute abridges freedom of speech in violation of the First and Fourteenth Amendments. The issue presented in this context is one of first impression in this Court. We postponed the question of jurisdiction to our consideration of the merits. 430 U.S. 964 (1977). We now reverse.

I

The statute at issue, Mass. Gen. Laws Ann., ch. 55, § 8 (West Supp. 1977), prohibits appellants, two national banking associations and three business corporations, n1 from making contributions or expenditures "for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation." The statute further specifies that "[no] question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation." A corporation that violates § 8 may receive a maximum fine of $ 50,000; a corporate officer, director, or agent who violates the section may receive a maximum fine of $ 10,000 or imprisonment for up to one year, or both.

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n1 Appellants are the First National Bank of Boston, New England Merchants National Bank, the Gillette Co., Digital Equipment Corp., and Wyman-Gordon Co.
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Appellants wanted to spend money to publicize their views on a proposed constitutional amendment that was to be submitted to the voters as a ballot question at a general election on November 2, 1976. The amendment would have permitted the legislature to impose a graduated tax on the income of individuals. After appellee, the Attorney General of Massachusetts, informed appellants that he intended to enforce § 8 against them, they brought this action seeking to have the statute declared unconstitutional.

In addressing appellants' constitutional contentions, the court acknowledged that § 8 "[operates] in an area of the most fundamental First Amendment activities," and viewed the principal question as "whether business corporations, such as [appellants], have First Amendment rights coextensive with those of natural persons or associations of natural persons." The court found its answer in the contours of a corporation's constitutional right, as a "person" under the Fourteenth Amendment, not to be deprived of property without due process of law. Distinguishing the First Amendment rights of a natural person from the more limited rights of a corporation, the court concluded that "whether its rights are designated 'liberty' rights or 'property' rights, a corporation's property and business interests are entitled to Fourteenth Amendment protection. . . . [As] an incident of such protection, corporations also possess certain rights of speech and expression under the First Amendment." Accordingly, the court held that "only when a general political issue materially affects a corporation's business, property or assets may that corporation claim First Amendment protection for its speech or other activities entitling it to communicate its position on that issue to the general public." Since this limitation is " identical to the legislative command in the first sentence of [§ 8]," the court concluded that the legislature "has clearly identified in the challenged statute the parameters of corporate free speech."


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n7 The court stated that § 8 would not prohibit the publication of "in-house" newspapers or communications to stockholders containing the corporation's view on a graduated personal income tax; the participation by corporate employees, at corporate expense, in discussions or legislative hearings on the issue; the participation of corporate officers, directors, stockholders, or employees in public discussion of the issue on radio or television, at news conferences, or through statements to the press or "similar means not involving contributions or expenditure of corporate funds"; or speeches or comments by employees or officers, on working hours, to the press or a chamber of commerce.
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III

The court below framed the principal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the court posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether § 8 abridges expression that the First Amendment was meant to protect. We hold that it does.

A

The speech proposed by appellants is at the heart of the First Amendment's protection.

"The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."

The referendum issue that appellants wish to address falls squarely within this description. In appellants' view, the enactment of a graduated personal income tax, as proposed to be authorized by constitutional amendment, would have a seriously adverse effect on the economy of the State. The importance of the referendum issue to the people and government of Massachusetts is not disputed. Its merits, however, are the subject of sharp disagreement.

As the Court said in Mills v. Alabama, 384 U.S. 214, 218 (1966), "there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs." If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, n11 and this is no less true because the speech comes from a corporation rather than an individual. N12. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.

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n11 Freedom of expression has particular significance with respect to government because "[it] is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression." T. Emerson, Toward a General Theory of the First Amendment 9 (1966).

n12 The individual's interest in self-expression is a concern of the First Amendment separate from the concern for open and informed discussion, although the two often converge. The Court has declared, however, that "speech concerning public affairs is more than self-expression; it is the essence of self-government." And self-government suffers when those in power suppress competing views on public issues "from diverse and antagonistic sources."
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The court below nevertheless held that corporate speech is protected by the First Amendment only when it pertains directly to the corporation's business interests. In deciding whether this novel and restrictive gloss on the First Amendment comports with the Constitution and the precedents of this Court, we need not survey the outer boundaries of the Amendment's protection of corporate speech, or address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment. The question in this case, simply put, is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection. We turn now to that question.

B

The court below found confirmation of the legislature's definition of the scope of a corporation's First Amendment rights in the language of the Fourteenth Amendment. Noting that the First Amendment is applicable to the States through the Fourteenth, and seizing upon the observation that corporations "cannot claim for themselves the liberty which the Fourteenth Amendment guarantees," the court concluded that a corporation's First Amendment rights must derive from its property rights under the Fourteenth. n14

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n14 Corporate identity has been determinative in several decisions denying corporations certain constitutional rights, such as the privilege against compulsory self-incrimination, or equality with individuals in the enjoyment of a right to privacy, but this is not because the States are free to define the rights of their creatures without constitutional limit. Otherwise, corporations could be denied the protection of all constitutional guarantees, including due process and the equal protection of the laws. Certain "purely personal" guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the "historic function" of the particular guarantee has been limited to the protection of individuals. Whether or not a particular guarantee is "purely personal" or is unavailable to corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision.
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This is an artificial mode of analysis, untenable under decisions of this Court.

"In a series of decisions beginning with Gitlow v. New York, 268 U.S. 652 (1925), this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. That principle has been followed and reaffirmed to the present day."

Freedom of speech and the other freedoms encompassed by the First Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause, and the Court has not identified a separate source for the right when it has been asserted by corporations. n15

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n15 It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886).
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C

We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. The "materially affecting" requirement is not an identification of the boundaries of corporate speech etched by the Constitution itself. Rather, it amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication.

Section 8 permits a corporation to communicate to the public its views on certain referendum subjects -- those materially affecting its business -- but not others. It also singles out one kind of ballot question -- individual taxation -- as a subject about which corporations may never make their ideas public. The legislature has drawn the line between permissible and impermissible speech according to whether there is a sufficient nexus, as defined by the legislature, between the issue presented to the voters and the business interests of the speaker.

In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue. If a legislature may direct business corporations to "stick to business," it also may limit other corporations -- religious, charitable, or civic -- to their respective "business" when addressing the public. Such power in government to channel the expression of views is unacceptable under the First Amendment. Especially where, as here, the legislature's suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended. Yet the State contends that its action is necessitated by governmental interests of the highest order. We next consider these asserted interests.


IV

The constitutionality of § 8's prohibition of the "exposition of ideas" by corporations turns on whether it can survive the exacting scrutiny necessitated by a state-imposed restriction of freedom of speech. Especially where, as here, a prohibition is directed at speech itself, and the speech is intimately related to the process of governing, "the State may prevail only upon showing a subordinating interest which is compelling," "and the burden is on the government to show the existence of such an interest." Even then, the State must employ means "closely drawn to avoid unnecessary abridgment . . . ."

A

Preserving the integrity of the electoral process, preventing corruption, and "[sustaining] the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government" n27 are interests of the highest importance. Preservation of the individual citizen's confidence in government is equally important.

Appellee advances a number of arguments in support of his view that these interests are endangered by corporate participation in discussion of a referendum issue. They hinge upon the assumption that such participation would exert an undue influence on the outcome of a referendum vote, and -- in the end -- destroy the confidence of the people in the democratic process and the integrity of government. According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee's arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government.


Nor are appellee's arguments inherently persuasive or supported by the precedents of this Court. Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections, simply is not present in a popular vote on a public issue. To be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution "protects expression which is eloquent no less than that which is unconvincing." We noted only recently that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment . . . ." Moreover, the people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments. They may consider, in making their judgment, the source and credibility of the advocate. But if there be any danger that the people cannot evaluate the information and arguments advanced by appellants, it is a danger contemplated by the Framers of the First Amendment. In sum, "[a] restriction so destructive of the right of public discussion [as § 8], without greater or more imminent danger to the public interest than existed in this case, is incompatible with the freedoms secured by the First Amendment."

B

Finally, appellee argues that § 8 protects corporate shareholders, an interest that is both legitimate and traditionally within the province of state law. The statute is said to serve this interest by preventing the use of corporate resources in furtherance of views with which some shareholders may disagree. This purpose is belied, however, by the provisions of the statute, which are both underinclusive and overinclusive.

The underinclusiveness of the statute is self-evident. Corporate expenditures with respect to a referendum are prohibited, while corporate activity with respect to the passage or defeat of legislation is permitted, see n. 31, supra, even though corporations may engage in lobbying more often than they take positions on ballot questions submitted to the voters. Nor does § 8 prohibit a corporation from expressing its views, by the expenditure of corporate funds, on any public issue until it becomes the subject of a referendum, though the displeasure of disapproving shareholders is unlikely to be any less.

The fact that a particular kind of ballot question has been singled out for special treatment undermines the likelihood of a genuine state interest in protecting shareholders. It suggests instead that the legislature may have been concerned with silencing corporations on a particular subject. Indeed, appellee has conceded that "the legislative and judicial history of the statute indicates . . . that the second crime was 'tailor-made' to prohibit corporate campaign contributions to oppose a graduated income tax amendment."

Nor is the fact that § 8 is limited to banks and business corporations without relevance. Excluded from its provisions and criminal sanctions are entities or organized groups in which numbers of persons may hold an interest or membership, and which often have resources comparable to those of large corporations. Minorities in such groups or entities may have interests with respect to institutional speech quite comparable to those of minority shareholders in a corporation. Thus the exclusion of Massachusetts business trusts, real estate investment trusts, labor unions, and other associations undermines the plausibility of the State's purported concern for the persons who happen to be shareholders in the banks and corporations covered by § 8.

The overinclusiveness of the statute is demonstrated by the fact that § 8 would prohibit a corporation from supporting or opposing a referendum proposal even if its shareholders unanimously authorized the contribution or expenditure. Ultimately shareholders may decide, through the procedures of corporate democracy, whether their corporation should engage in debate on public issues. Acting through their power to elect the board of directors or to insist upon protective provisions in the corporation's charter, shareholders normally are presumed competent to protect their own interests. In addition to intracorporate remedies, minority shareholders generally have access to the judicial remedy of a derivative suit to challenge corporate disbursements alleged to have been made for improper corporate purposes or merely to further the personal interests of management.

Assuming, arguendo, that protection of shareholders is a "compelling" interest under the circumstances of this case, we find "no substantially relevant correlation between the governmental interest asserted and the State's effort" to prohibit appellants from speaking.

V

Because that portion of § 8 challenged by appellants prohibits protected speech in a manner unjustified by a compelling state interest, it must be invalidated. The judgment of the Supreme Judicial Court is Reversed.

MR. JUSTICE REHNQUIST, dissenting

Comment: I have edited this dissent. Complete text is at the citation

This Court decided at an early date (1885), with neither argument nor discussion, that a business corporation is a "person" entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Likewise, it soon became accepted (1895) that the property of a corporation was protected under the Due Process Clause of that same Amendment. Nevertheless, we concluded soon thereafter (1906) that the liberty protected by that Amendment "is the liberty of natural, not artificial persons." Before today, our only considered and explicit departures from that holding have been that a corporation engaged in the business of publishing or broadcasting enjoys the same liberty of the press as is enjoyed by natural persons (1936), and that a nonprofit membership corporation organized for the purpose of "achieving . . . equality of treatment by all government, federal, state and local, for the members of the Negro community" enjoys certain liberties of political expression (1963).

The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court. However, the General Court of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible. The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court. I am certain that the judgment of the Supreme Judicial Court of Massachusetts should be affirmed.

Early in our history, Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created." Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819).


The appellants herein either were created by the Commonwealth or were admitted into the Commonwealth only for the limited purposes described in their charters and regulated by state law. Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons, our inquiry must seek to determine which constitutional protections are "incidental to its very existence."

There can be little doubt that when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business. Until recently (1976), it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation.


It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes. A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed. I would think that any particular form of organization upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation. However, where a State permits the organization of a corporation for explicitly political purposes, this Court has held that its rights of political expression, which are necessarily incidental to its purposes, are entitled to constitutional protection.

One need not adopt such a restrictive view of the political liberties of business corporations to affirm the judgment of the Supreme Judicial Court in this case. That court reasoned that this Court's decisions entitling the property of a corporation to constitutional protection should be construed as recognizing the liberty of a corporation to express itself on political matters concerning that property. Thus, the Court construed the statute in question not to forbid political expression by a corporation "when a general political issue materially affects a corporation's business, property or assets."

I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries. Nor can I disagree with the Supreme Judicial Court's factual finding that no such effect has been shown by these appellants. Because the statute as construed provides at least as much protection as the Fourteenth Amendment requires, I believe it is constitutionally valid.

It is true, as the Court points out that recent decisions of this Court have emphasized the interest of the public in receiving the information offered by the speaker seeking protection. The free flow of information is in no way diminished by the Commonwealth's decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity.

I would affirm the judgment of the Supreme Judicial Court.

Essay Instructions: Continental lllinois National Bank and Trust Company
?Too Big to Fail?

In 1981 CI was considered a large successful bank and too big to fail. However, in July 1984 it was rescued the federal deposit insurance company (FDIC), after several runs on CI`s deposits, to avoid the risk of collapse of confidence in the US banking system.

In 1995 a Prof.G.Kaufman questioned whether the rescue of continental lllinois (CI) was really necessary. He argued that the fear of system collapse was unfounded and that CI should have been allowed to fail.

He was of the opinion that the rescue was only justified if the office of the comptroller of the currency (OCC) thought that virtually no assets would otherwise be recovered. In the event about 97% of assets were recovered.

1. Was the CI rescue and restructuring successful? Why was it successful?
2. With hindsight and considering Prof. Kaufman?s report, was the decision to restructure justified? Explain why or why not.
3. To what extent did the OCC contribute to the management failings of Mr Roger E. Anderson-CI`s Chairman & CEO and his management team.
4. What short and long term benefits were expected to arise from appointing David Taylor as CI`s new CEO and Edward Bottum as President in the run-up to the restructuring of CI?
5. a. What is the current status of CI?
b. What are their main sectors of banking?
c. How have these sectors changed since their collapse?

3000 words

Essay Instructions: Streamlining the Refinancing Process


First national bank has been swamped with refinancing requests this year. To handle the increased volume, it divided the process into five distinct stages and created departments for each stage.

The process begins with a customer completing a loan application for a loan agent. The loan agent discusses the refinancing options with the customer and performs quick calculations based on customer-reported data to see if the customer qualifies for loan approval. If the numbers work, the customer signs a few papers to allow a credit check and goes home to wait for notification of the loan?s approval.

The customer?s file is then passed on to a loan processor, who requests a credit check, verification of loans or mortgages from other financial institutions, an appraisal of the property, and employment verification, if any problems are encountered, the loan processor goes to the loan agent for advice. If items appear on the credit report, the customer is required to explain the discrepancies in writing. If the explanation is acceptable, the letter is placed in the customer?s file and the file is sent to the loan agent (and sometimes the bank?s board) for final approval.

The customer receives a letter of loan approval and is asked to call the closing agent to schedule a closing date and to lock in a loan rate if the customer has not already done so.

The closing agent requests the name of the customer?s attorney to forward the loan packet. The attorney is responsible for arranging a termite inspection, a survey, a title search, and insurance and for preparing the closing papers. The attorney and the closing agent correspond back and forth to verify fees, payment schedules, and payoff amounts.

The loan-servicing specialist makes sure the previous loan is paid off and the new loan is set up properly. After the closing takes place, the bank?s loan ?payment specialist takes care of issuing payment books or setting up the automatic drafting of mortgage fees and calculating the exact monthly payments, including escrow amounts. The loan-payment specialist also monitors late payment of mortgages.

It is difficult to evaluate the success or failure of the reengineered process, since the volume of refinancing requests is so much greater than it has ever been before. However, customer comments solicited by the loan-servicing specialist have been disturbing to management.

Customer comments:

? I refinanced with the same bank that held my original loan, thinking erroneously that I could save time and money. You took two months longer processing my loan than the other bank would have and the money I saved on closing costs was more than eaten up by the extra month?s higher mortgage payments.
? I just got a call from someone at your bank claiming my mortgage payment was overdue. How can it be overdue when you draft it automatically from my checking account?
? How come you do everything in writing and through the mail? If you would just call and ask me these questions instead of sending forms for me to fill out, things would go much more quickly.
? If I haven?t made any additions to my house or property in the past year, you appraised it last year, and you have access to my tax assessment, why bother with another appraisal? You guys just like to pass around the business.
? I never know who to call for what. You have so many people working on my file. I know I?ve repeated the same thing to a dozen different people.
? It took so long to get my loan approved that my credit report, appraisal report, and termite inspection ran out. You should pay for the new reports, not me.
? I drove down to your office in person today to deliver the attorney?s papers, and I hoped to return them with your signature and whatever else you add to the closing packet. The loan specialist said that the closing agent wouldn?t get to my file until the morning of the scheduled closing and that if she hit a snag, the closing could be postponed! I?m taking off half a day from work to attend the closing and ?rescheduling? is not convenient. I know you have lots of business, but I don?t like being treated this way.
? I received a letter from one of your loan-payment specialists today, along with a stack of forms to complete specifying how I want to set up my mortgage payment. I signed all these at closing- don?t you read your own work? I?m worried that if I fill them out again you?ll withdraw the payment twice from my account!

In the context of these customer comments, evaluate First National?s refinancing process and write a management consultant report to recommend a process improvement project.

Essay Instructions: Please answer these questions, I will send over a word document with the same material only organized.

I. MATCHING TERMS

A. Writ of Mandamus K. Arbitration
B. Writ of Certiorari L. Private Enforcement
C. Power of Eminent Domain M. Due Process Clause
D. Compensatory Damages N. Rational basis test.
E. Punitive Damages O. Power of Judicial Review
F. State Police Power P. Mediation
G. Common Law Q. Precedent
H. Strict scrutiny. R. Personal Jurisdiction.
I. Original Jurisdiction S. Minimum Contacts
J. Equal Protection Clause T. Diversity Jurisdiction

1. ___ No remedy unless individual or organization initiates legal action.
2. ___ Awarded to make the victim whole.
3. ___ Fundamental fairness.
4. ___ Court where the trial takes place.
5. ___ Power of court to compel presence of defendant.
6. ___ Voluntary, private, adversarial process.
7. ___ Power of court to review constitutionality of a government action.
8. ___ Purpose: Specific and general deterrence.
9. ___ Voluntary, private, non-adversarial process.
10. ___ State action constitutional only if necessary to achieve compelling state interest
11. ___ Power of government to take private property.
12. ___ Court order to do one's non-discretionary legal duty.
13. ___ State law claims decided by federal courts.
14. ___ Constitutional requirement that government not act in an arbitrary way.
15. ___ Appellate court may accept or deny a case for review at its discretion.
16. ___ Legal rights and remedies created by courts in absence of applicable constitution, statute, or agency regulation.
17. ___ Courts must follow law as decided by higher courts in their jurisdiction.
18. ___ Inherent power of government to promote and protect the public health, safety, welfare and morality.
19. ___ Race is a suspect classification; gender, a quasi-suspect classification.
20. ___ Constitutional pre-requisite for assertion of long-arm jurisdiction.


II. ACCURATE OR INACCURATE?

Direction: For each of the following, indicate whether it is an accurate (T) or inaccurate (F) statement of the law. If you wish, you may provide a typed explanation for any answer.

1.___ Defending individual constitutional rights is a matter of private enforcement.

2. ___ As a general rule, under the Commerce Clause, Congress has the power to regulate any commercial activity or commodity, no matter how local, because, when aggregated, it can be shown to have a substantial affect on interstate commerce.

3. ___Since a peremptory challenge is not “for cause” and need not be explained, attorneys can strike a potential juror from serving for any reason or no reason, including that juror’s race or gender.

4. ___ Employees may be required to pay reasonable administration costs of arbitration even when the agreement with the employee gives the employer the sole option to compel arbitration.

5. ___Assuming GM is incorporated in the state of NY and its principal place of business is in Michigan, residents of these two states can not sue GM for product liability in a federal court even though residents outside these two states can.

6. ___ Supreme court decisions on constitutional issues are virtually final, while those on statutory issues are not in the sense that subsequent legislation can override them.

7. ___ Since a web site is available to persons everywhere, courts in every state have personal jurisdiction over the web site owner.

8. ___Since you are free to contract away your right to resolve legal disputes in a court, a business or an employer may legally require you to do so as a condition of doing business or being employed.

9. ___ No court, federal or state, can decide a case against an out-of-forum defendant unless the defendant has created minimum contacts with that forum by its own actions sufficient to satisfy the fundamental fairness required by the Due Process Clause.

10. __ The 21st Amendment to the U.S. Constitution gives each state the power to decide for itself whether and how intoxicating alcoholic beverages shall be sold and distributed within the state, including forbidding all direct sales to costumers other than through licensed local retailers.


III. FACT SITUATIONS

1. Mary Darling, the purchasing agent for LOV, Inc., a business located in Baltimore and incorporated in Maryland, drove the company van from Baltimore to Philadelphia in order to pick up supplies needed by LOV, Inc., from its regular Philadelphia supplier. She was in a hurry and she ran a red light in Philadelphia at 30 miles over the speed limit. She hit David Smith's car. David's car was totaled and he was severely injured. He is suing Mary and LOV for compensatory and punitive damages. David was on his way home to Dover, Delaware, to celebrate his 5th wedding anniversary. David lives and works in Dover. David and his wife are claiming $10 million in compensatory damages and unspecified punitive damages.

Which courts can decide this case? Why? Which state’s substantive law will these courts apply in this case? Why? (5)

2. The Maryland General Assembly recently enacted a statute allowing Maryland vineyards to obtain a limited distributor license that permits selling directly to restaurants, hotels, and retail stores. Similarly situated vineyards in Pa., Va., West Va., and Del. can sell only to Md. wholesalers. How can they get the same “limited distributor license?” What is your reason for your conclusion? Your legal authority? (5)


IV. SHORT QUESTIONS

Direction: Be concise.

1. What is the power of judicial review? Why is it so important? How does Marbury v. Madison specifically illustrate it? (5)

2. How is it possible that someone could be found innocent of a criminal charge but civilly liable under the same facts? (4)

3. Articulate the speech rights of corporations in the United States and identify legal authority for your assertions. (6)

4. Contrast compensatory and punitive damages. State the constitutional limitations on the amount of punitive damages that can be awarded. Cite case authority. (9)

5. In awarding contracts, governments frequently have minority and gender set-aside requirements. If challenged by a business which was the qualified low bidder but did not receive the contract because of a minority ownership preference, what constitutional provision will be used and what standard must the court apply to resolve the issue? Legal authority? (4)

6. Increasingly, companies are including pre-dispute, arbitration clauses in their contracts with employees, customers, and suppliers. What is the legal basis for their enforceability? What grounds are used to attack their validity? (7)

7. When would one choose to mediate or arbitrate or litigate? (6)

8. State the "law of the case" of each of the following: (10)

a) Gonzales v. Raisch

b) First National Bank v. Bellotti.

c) Kelo v. New London.

d) Adarand v. Pina

e) Cole v. Burns International Security Systems.

9. One distinctive characteristic of courts in the U.S. is their use of precedent. Identify the precedent used in these cases and succinctly state how their application determined the outcome. (4)

a) Campbell v. State Farm Insurance Company

b) Cole v. Burns International Security Company.

10. Respond to a colleague who asserts that we need to get rid of these liberal activist judges and replace them with conservative judges who interpret the law and do not make the law. (5)