978-0077733735 Chapter 6 Part One End of Part Case

Type

Quiz

Book Title

Business Law with UCC Applications 14th Edition

ISBN 13

978-0077733735

April 10, 2019

ANSWER KEY

Part One End of Part Case

Schuette, Attorney General of Michigan v. Coalition to Defend Affirmative Action and Immigration

Rights and Fight for Equality By Any Means Necessary (BAMN)

United States Supreme Court

Questions for Analysis

1. It is clear that stare decisis is at the central core of Justice Kennedy’s opinion in Schuette v

BAMN. In this case he sharply criticizes the case of Washington v. Seattle School District. What

Kennedy finds erroneous about the ruling in the Seattle case is the fact that it promotes the notion that

the courts can disenfranchise the voters of a state. This is a dangrous precedent. Kennedy insists that

2. The theory of negative rights addresses the question of the essential natire of rights by arguing

that such rights actually have a negative impact on behavior by creating various ways for people to

escape reponsibility for their unethical or immoral actions. For instance, the right to free speeech

becomes the power to say anything, even things that are insulting, cruel, nasty, hurtful, embarrising,

discriminatory, and so on without being held accountable for those words. Similarly, the right to

privacy becomes an entitlement to do shameful things without anyone else knowing about those

shameful actions. Reitman v. Mulkey and Hunter v. Erickson both involve the right of property owners

3. The Opening Case at the beginning of Chapter 3, CLS Bank International v. Alice Corporation

Pty. Ltd.,, involves a summary judgment motion. The text explains what happened in that case in the

following way: “When the case arrived in the District Court of the District of Columbia, the attorney’s

representing CLS filed a motion for a summary judgment. A summary judgment motion asks the court

for a speedy judgment for the party filing the motion. This motion is filed when there is no genuine

issue as to any material fact, and the party filing the motion is entitled by law to a favorable judgment.

The motion must be supported by a brief that sets forth the legal arguments supporting the claim, along

4. Again, the Opening Case at the beginning of Chapter 3, CLS Bank International v. Alice

Corporation Pty. Ltd.,, involves a summary judgment motion that is eventually reviewed by an en banc

6. It is very difficult to determine in advance the wide variety of answers that students will provide

when they are asked to determine whether Madison’s “federal veto” plan was a good idea. Therefore,

the instructor should accept all well reasoned answers. (Note: the instructor might also refer students to

7. All of the cases cited in Schuette v BAMN do, in fact, involve a public uprising that in effect,

challenges the authority and the wisdom of the governmental officials who, in the exercise of their

constitutionally granted powers, enacted legitimate legislative measures following correct legislative

procedures. So, yes, from that perspective, this is exactly what Madison warned against. So from that

point of view, Madiosn was correct. The real issue here, however, is whether what Madison predicted

8. Yes. Justice Kennedy is urging the type of factionalism that Madison so feared. A portion of

Kennedy’s opinion that could be used as a direct answer to Madison’s position. “It is demeaning to the

democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on

decent and rational grounds. The process of public discourse and political debate should not be

foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who

seek to use racial division and discord to their own political advantage. An informed public can, and

must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the

right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a

consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would

be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters

9. A complex adaptive system (CAS) is a network of interacting conditions which reinforce one

another, while at the same time adjusting to change from agents outside and inside the system. Justice

Kennedy’s opinion in Schuette v BAMN clearly reinforce the idea that the law works like a complex

adaptive system. All CASs include certain elements each of which is seen here. First, very CAS

operates as a result of the interaction of a variety of agents. In this case, we see the interaction of the

legislature which passed the challenged bill or enacted the policy in the first place; the executive who

signed the bill making it law; the people who then challenged the legislation by placing it on the ballot

for a vote, and the courts which reviewed the challenges to the challenges. Second, in a CAS there is no

central controlling agent, no single all powerful “boss” as it were. Instead, control is dispersed among

10. Kennedy may have, indeed, fallen into the trap of singular morality. In fact, the entire referendum

process (that is, giving the power to change legislative and executive decisions to the people) ignores

the dual morality of the Weberian Moral Dyad. Weber places the weight of moral consequences

END of Part One End Case