Business Law, 11th edition
By Henry R. Cheeseman
Email: Richard@qwconsultancy.com
Chapter 1 Legal Heritage and the Information Age Answer to Critical Legal Thinking Case
1.1 School of Jurisprudential Thought Yes, the race-conscious admissions program at the University of Texas is lawful under the Equal Protection Clause of the U.S. Constitution. The U.S. Supreme Court held that the University’s admissions policy was narrowly tailored to advance raced-based differences in university admissions. The Supreme Court stated that the University’s affirmative action admissions process must be tailored to ensure that race plays no greater role than is necessary to meet the University’s compelling interest to diversify its student body. The Supreme Court stated, “A university may institute a race-conscious admissions program as a means of obtaining the educational benefits that flow from student body diversity. Enrolling a diverse student body promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races. Equally important, student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.” The Supreme Court stated that admissions officers can consider race as a positive feature of a minority student’s application. However, a university may not use quotas, such as setting aside a predetermined number of admissions or percent of admissions, based on race. The Court held that using race as one factor of many factors to be considered in a holistic view of college applications is narrowly tailored and does not violate the Equal Protection Clause of the U.S. Constitution. The Supreme Court affirmed the judgment of the U.S. court of appeals. The decision of the U.S. Supreme Court is highly correlated to the goals of the Sociological School of jurisprudence, which asserts that the law is a means of achieving and advancing certain sociological goals. The followers of this philosophy believe that the purpose of law is to shape social behavior. The use of a holistic approach of university admissions that
considers race as one of many factors to be considered in the admissions process, with a goal of attaining diversity of a university student body, helps achieve a social goal. Fisher v. University of Texas at Austin, 136 S.Ct. 2198, 2016 U.S. Lexis 4059 (Supreme Court of the United States, 2016)
1.2 Fairness of the Law Many students will react that the statute is unfair as it does not afford women equal status in the workplace. In light of today’s standards, that position is well founded. However, it is a useful exercise to consider arguments for the opposite position in the context of the time period. In enacting such a statute, the legislature presumably entertained the view that women had special needs, were subject to certain weaknesses, and therefore the demands made on them had to be accommodated in the workplace. That these premises, i.e., special needs and presumed weaknesses, might be false does not necessarily preclude one from acting morally. Moralists might label this ignorance as excusable in that it is “invincible,” i.e., an ignorance that cannot be destroyed or offers no moral reason for doing so. Of course, modern experience and knowledge require that we question these premises. It almost certainly would not be lawful today. Not only have the items relevant to the test of equal protection broadened under present constitutional interpretations, but also Title VII of the Civil Rights Act of 1964 prohibits any discrimination on the basis of sex in the “terms, conditions and benefits of employment.” W. C. Ritchie & Co. v. Wayman, Attorney for Cook Country, Illinois, 91 N.E. 695, 1910 Ill. Lexis 1958 (Supreme Court of Illinois)
Answers to Ethics Cases 1.3 Ethics Case Yes, the hunting, fishing, and gathering rights granted to the Mille Lacs Band of the Ojibwe Indians by the federal government in the 1837 treaty are valid and enforceable. The U.S. Supreme Court held that these rights were not extinguished when the state of Minnesota was admitted as a state in 1858. The state of Minnesota argued that the Ojibwe’s rights under the treaty were extinguished when Minnesota was admitted to the Union. There is no clear evidence of federal congressional intent to extinguish the treaty rights of the Ojibwe Indians when
Minnesota was admitted as a state in 1858. The language admitting Minnesota as a state made no mention of Indian treaty rights. It was illegal for the state of Minnesota to try to extinguish clearly delineated legal rights granted to the Ojibwe Native Americans more than 150 years before. The hunting, fishing, and gathering rights guaranteed to the Ojibwe Indians in the 1837 treaty are still valid and enforceable. The state of Minnesota did not ethically when it tried to abolish the hunting, fishing, and gathering rights guaranteed to the Ojibwe Indians by treaty. The Ojibwe relied on the promises of the treaty, which must be kept by the government. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 119 S.Ct. 1187, 1999 U.S. Lexis 2190 (Supreme Court of the United States)
1.4 Ethics Case The better case is made by the dissent. The law has not been progressive in this instance. It is likely that legislators entertained an unconscious premise that women should not be required to fight a war. This speculation might be supported by the fact that the majority of the Supreme Court summoned a technical legal point to justify their ruling. The Court held that Congress was the proper party to articulate the public policy that women should not fight at the front, thereby removing themselves from any further consideration of the substantive issue, i.e., whether equality was being served as a matter of fairness. Rostker, Director of the Selective Service v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 1981 U.S. Lexis 126 (Supreme Court of the United States)
Chapter 2 Courts and Jurisdiction
Answers to Critical Legal Thinking Cases
2.1 Personal Jurisdiction No, defendants Live Siri Art, Inc. and Siri Galliano are not subject to lawsuit in New York pursuant to New York’s long-arm statute. This is because defendant Live Siri Art, Inc, a California corporation, and defendant Siri Galliano, a California resident, did not have the requisite minimum contacts with the state of New York to make them subject to a lawsuit brought by plaintiff Richtone Design Group LLC (Richtone), a New York LLC, in a New York court pursuant to the New York long-arm statute. Assuming that the defendants did violate the plaintiff’s copyright by selling Richtone’s pilates manuals in New York using a website and made $1,000 in more than a decade doing so, this is but de minimis contact that does not arise to the minimum contact required by due process to subject them to a lawsuit in New York. The U.S. district court dismissed plaintiff Richtone’s New York lawsuit against the California defendants for lack of personal jurisdiction. Richtone Design Group, LLC v. Live Art, Inc., 2013 U.S. Dist. Lexis 157781 (United States District Court for the Southern District of New York, 2013)
2.2 Service of Process Yes, May Facebook, Inc. may use alternative service of process by sending email notices to the defendants’ websites. Facebook sued the defendants for trademark infringement, cybersquatting,