#1 –

Respond to the following questions. Your responses are expected to contain 3 – 5 sentences showing your understanding of the material.

1. Describe the two-factor test articulated in U.S. v. Esquenazi for determining whether a business organization is an “instrumentality” of a foreign government such that its employees are “foreign officials” under the FCPA? Does the so-called Esquenazi test provide clarity as to the “foreign official” element or make it more fuzzy?
2. You are a compliance professional at a company doing business all over the world. Why does the meaning of “foreign official” matter to your company?
3. Regarding U.S. v. Kay, do you agree with the trial court or appellate court decision regarding the “obtain or retain business” element?
4. What did the Kay appellate court actually decide as to “obtain or retain business”?
5. What does the following statement from the Kay appellate court actually mean? “There are bound to be circumstances in which such a cost reduction does nothing other than increase the profitability of an already-profitable venture or ensure profitability of some start-up venture. Indeed, if the government is correct that anytime operating costs are reduced the beneficiary of such advantage is assisted in getting or keeping business, the FCPA’s language that expresses the necessary element of assisting is obtaining or retaining business would be unnecessary, and thus surplusage—a conclusion that we are forbidden to reach.”

#2 –

This will be a two-part assignment.

In Part 1, you are to take a position on the following excerpt of Federalist Paper 78 discussing the federal judicial power. Now that we have covered Article I powers (the Legislature), Article II powers (the Executive), and, Article III powers (the Judiciary), you are well suited to comment on Hamilton’s famous description of the federal judiciary as “the least dangerous” branch of our constitutional government. In your post this week, you must choose one branch of our constitutional government as either the least dangerous or the most powerful. After making your selection, explain your choice in 100 words or less.

In Part 2, you need to provide a counterpoint to any classmate’s post. One counterpoint to one classmate. For example, if someone chose the Executive as the least dangerous branch and you chose the Legislature, counter your classmate’s choice in a professional tone with reasoned analysis explaining your difference of opinion. I do not want you to respond to a classmate that you agreed with. For example, if someone chose the Executive and you chose the Executive you should not respond to their post. Your agreement is not a counterpoint. Your response is limited to 100 words.

Reminder: You cannot use adjectives or adverbs in your response. You are required to complete both portions of this assignment. Each post is limited to 100 words or less.

Federalist 78 (Hamilton) — The Judiciary Department.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Reading for this one:

https://avalon.law.yale.edu/18th_century/fed78.asp

• Walter Nixon v. United States Judicial Impeachment
• Youngstown Sheet & Tube Co. v. Sawyer Presidential Powers ********must read both the Court’s majority opinion and Justice Jackson’s concurring opinion
• United States v. Richard Nixon Presidential Immunity
• Clinton v. Jones Presidential Immunity
• Trump v. Hawaii Presidential Powers