BUSI 2301 Business Law and Surrogacy Law in New York

Question

Part One: Essays

a) Explain New York’s surrogacy law and explain how you might change it, if at all.

b) Explain the difference between comparative negligence and contributory negligence. What is New York’s negligence standard? Explain how you would change it, if at all.

c) Research and describe whether you support the Pregnancy Fairness Act. How would it change current Supreme Court case law standards?

Part Two: Multiple Choice:

1. The Emoluments Clause of the U.S. Constitution says that “No Title of Nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Article 1, Section 9, Clause 8

Pursuant to its interpretation of this clause, Congress has created a law requiring the President to report every 60 days to Congress on any holdings of the President that do business during his/her administration. The President believes that the law is unconstitutional. To settle the dispute between the President and Congress:

a) the President’s position carries the most weight over Congress because the President was elected by all the people in a direct election.

b) the courts will decide. It is the province and duty of the courts to say what the law is.

c) Congress’ interpretation counts the most unless the courts say otherwise because the Constitution gave Congress the power to make laws.

d) the President prevails because President Trump, and Presidents of his caliber, always win.

2. During a trial to determine if the Smiths stole a secret pie recipe from one of their retailers, Mrs. Smith testified that she never stole anything in her business career. The plaintiff’s lawyer would like to introduce testimony from their earlier deposition where Mrs. Smith admitted to stealing recipes from her chef school classmates and getting expelled for it.

The testimony:

a) cannot be introduced because evidence from discovery is only useful for negotiations to settle a case.

b) cannot be introduced unless Mrs. Smith agreed to use the deposition for the trial

c) can be introduced because deposition testimony can be used to impeach witnesses during a trial.

d) can be introduced as long as the lawyer pays the court an extra $40/word for the extra time it is using of the public’s time.

3. After a jury verdict of $500,000 in compensatory damages against a cigarette company for fraudulently selling cigarettes without warning buyers of the addictiveness of nicotine and the cigarette’s additives, the jury awarded punitive damages of $200 million. The company’s strongest argument to reduce or eliminate the punitive damages award is:

a) that cigarettes provide a valuable public service in the workplace in reducing stress and providing alternatives to illegal drugs

b) that the ratio of the punitive damages award to the compensatory damages award of 400:1 is too excessive.

c) that similar verdicts will put cigarette companies out of business and hurt the American economy.

d) that everyone should have been aware of the dangers of cigarettes by now.

4. Tort reform is:

a) a law delineating more types of harms so that people can receive more protection from the wrongs done to them

b) any law that has the effect of reducing the harms that people suffer.

c) a law calling for a state constitutional convention to change that state’s tort laws.

d) a law limiting the amounts of damages that people can receive for wrongs done to them.

5. Della Kliebeck spilled McDougal’s hot coffee on herself while opening it between her legs In the parking lot of McDougal’s. McDougal’s coffee is 195 degrees when it is poured and is in thin white Styrofoam cups with no handles or warnings. If the accident happened in a 100% contributory negligence state, it is most likely that:

a) Ms. Kliebeck will recover 100% of her damages because McDougal’s should have been aware of the damage that McDonald’s caused to Ms. Stella Liebeck.

b) Ms. Kliebeck will recover nothing because she negligently tried to open coffee between her legs.

c) Ms. Kliebeck will recover based on the proportionate amount of her negligence as compared to the negligence that McDougal’s contributed to the coffee spill.

d) Ms. Kliebeck will recover no more than her medical expenses because of her own negligence.

Answer

Part One: Essays

a) Surrogacy Law in New York

Surrogacy agreements are considered to be against the public policy in New York in any of its forms.

By virtue of re baby M’s case, surrogacy agreements are considered void and it does not create any legal rights in New York. Any person involved in surrogacy being the proposed parents or the surrogate will attract a penalty of $500 and any person assisting in the process of surrogacy will be penalised with a fine up to $10,000 and any fees paid in this furtherance will be forfeited. Any person, other than the parents and surrogate, found to have assisted in surrogacy for the second time will attract felony charges.

The Child-Parent Security Act of 2017 bill if passed may lift a 26-year old ban on surrogacy. However, it might only legalise the gestational surrogacy as it does not cover the traditional surrogacy.

b) Negligence standard

In most of the states of USA, even if there is a one percent of contributory negligence, the court would not award any damages to the plaintiff.

Contributory Negligence is said to have committed, when the person to whom a damage has occurred for the negligent act of another, to some extent is also responsible for the same. New York is one of the thirteen states in USA, which awards damages based on comparative negligence. When an aggrieved person approaches the court for a remedy under negligence, the Courts in New York first verifies the percentage of contribution to the same of both the parties and then award damages proportionately (De Mot 2013).

However, there are certain cases of negligence where the plaintiffs have a greater proportion of fault than the defendants, in which the proportional award rule may lead to injustice and an improved rule would be appropriate which will consider compensating the defendant for the inconvenience caused to him.

c) Pregnancy Fairness Act

There were innumerable instances of pregnant employee grievances. The pregnant workers are often denied reasonable accommodation in the work premises during their pregnancy. The Pregnancy Fairness Act is developed with a view to redress these grievances.

The Pregnancy Fairness Act would ensure the wellbeing and comfortable working conditions to the pregnant workers. It strives to provide protection to the pregnant workers. Previously, in majority of the cases, the pregnant workers were subjected to dismissal by the employers. It also provides them with the provision of reasonable accommodation such as sitting arrangements for pregnant workers. This would resolve the exploitation of the pregnant workers by the employer and would ensure a safe working condition for such workers. This Act ensures an interaction between the employer and the pregnant worker to examine the accommodations required by the worker and to what extent it could be provided (Czypinski 2014).

This Act would bring about a massive turn in the area of pregnant workers redressal, which was, previously addressed in accordance with Pregnancy Discrimination Act.

Part Two: Multiple Choice

Answer to 1. Option b) the courts will decide. It is the province and duty of the courts to say what the law is.

Answer to 2. Option a) cannot be introduced because evidence from discovery is only useful for negotiations to settle a case.

Answer to 3. Option c) that similar verdicts will put cigarette companies out of business and hurt the American economy.
Answer to 4. Option d) a law limiting the amount of damages that people can receive for wrongs done to them.

Answer to 5. Option b) Ms. Kliebeck will recover nothing because she negligently tried to open coffee between her legs.

References

Re Baby M, 537 A.2d 1227, 109 N.J. 396 (N.J. 1988)

The Child-Parent Security Act 2017

De Mot, J., 2013. Comparative versus contributory negligence: A comparison of the litigation expenditures. International Review of Law and Economics, 33, pp.54-61.

Czypinski, S., 2014. Pregnant Laborers Should Expect Better: The Broken Pregnancy Discrimination Standard and How Pregnant Workers Fairness Act Can Repair It. U. Pitt. L. Rev., 76, p.303.

Pregnancy Fairness Act

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