Nationality Discrimination: Legal Issues and Analysis

This article discusses the legal issues surrounding nationality discrimination and analyzes the relevant laws, including the Civil Rights Act and the Immigration Reform and Control Act. It explores the conflict between federal and state law in discrimination cases.

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Student’s Name
Professor’s Name
Course
Date
1)
ISSUES
The case is one of nationality discrimination. There are several legal issues that must be
answered in order to determine whether Mr. Sheehan’s suit can be successful.
A) Is there such a thing as Nationality Discrimination?
B) Does State Law supersede Federal Law?
RULE
Civil rights Act (1964), The New York Human Rights Law, Constitution of the USA and The
Immigration Reform and Control Act of 1986
ANALYSIS
Both federal law and state law seem to prohibit almost all types of discrimination. Title 7 of
the Civil Rights Act (1962) and The New York Human Rights law prohibit discrimination based
on nation of origin. However, is national origins the same as actual nationality? Should the letter

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of the law be strictly enforced, then Mr. Sheehan would not have a case under the said laws.
Notwithstanding the same, the spirit of law is the prohibition of all unfair disadvantage placed on
any persons. To support this, the provisions of the Immigration Reform and Control Act of 1986
specifically prohibit the discrimination of anyone based on their citizenship so long as they are
legally in the USA and have attained all necessary rights to work in the USA.
However, it cannot be forgotten that the ordinance prohibiting the employment of non-
American citizens is a state law and as such applies just a widely and powerfully as the Human
Rights Law of New York. The question becomes, where there is a conflict between federal and
state law, which prevails. Article 6, clause 2 of the USA constitution make it clear that where
there is any conflict, the federal law prevails.
CONCLUSION
It seems apparent that Mr. Sheehan has a strong case. In discrimination suits, the plaintiff is
burdened with the duty to prove that he has been discriminated and such has caused his
suffering.
2)
ISSUES
The issue that must be determined is simply, does the photograph amount to defamation as
required in law.
RULE
As defamation is classified as a tort, there are not statutory provisions that specifically
prohibit the same. However, the first amendment of the US constitution is relevant to this case.

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ANALYSIS
There exists a battle between defamation law and the provisions of the first amendment. Free
speech is strongly defended and that often victimizes those who feel that a person’s exercise of
that free speech has caused injury to their character and/or reputation. To reconcile the two, the
general rule is, opinions cannot amount to defamation. Only erroneous assertion of fact can
amount to defamation. The photograph is printed on the entertainment section of a newspaper.
Such sections are not intended to be factual but tabloid opinion. However, unless the photograph
is accompanied by an article showing explaining the content of the photograph, the minister may
be able to assert that he publishing of the photograph is negligence on the part of the newspaper
if not a deliberate act of malice. Furthermore, if the minister can prove that to any reasonable
person, the photo suggests that he was exiting the establishment, then he can assert that the
newspaper acted negligently in publishing the photo. In defamation cases, unless the victim is a
public figure, negligent publishing does suffice. However, should the plaintiff be a public figure,
then actual malice must be proven.
CONCLUSION
The minister does have a winnable case. All publishing entities such as newspapers have a
duty to publish on matters that are factual and are supported by clear evidence unless they are
opinions. If the minister can prove that the publishing of the photograph was done either
maliciously or negligently and the same damaged his reputation, then he can win the case.

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3)
ISSUE
The case before us is one of negligence. The parents of the child wish to sue the man because
they feel he had a duty to save their child’s life. The issue is, did the man bear such a duty?
RULE
Only case law applies as this is a tort case
Donoghue vs. Stevenson
ANALYSIS
In the United States, there are 4 elements to proving negligence; duty of care, breach of duty,
causality and injury in that order.
Though the case is saddening, unfortunately the parents do not have a legal claim against the
man. In law, a person does not have a duty of care simply because he has the ability to prevent
harm. Duty of care is the requirement of a person not to cause harm in what they are doing. The
case of Stevenson vs. Donoghue sets the foundation for negligence cases. Lord Atkins when
determining the case stated that there is a legal responsibility to do no harm. For one to have duty
of care there must be an action that would directly impact the life of another. For example, a
driver has the duty to drive carefully so as not to cause injury to other motorists or pedestrians.
The duty is one that must originate from the persons adventure not, as this case is, the adventure
of the victim. In this case, the only person who has the duty of care the person who is legally
responsible for the wellbeing of the child. A passerby bears no such legal burden.

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CONCLUSION
There is no locus standi in this case against the man as he is under no legal obligation to act.
4)
ISSUES
The issue in this case is jurisdiction, specifically personal jurisdiction. Can the Texas court
hear a matter in which the defendant is registered in Delaware but transacts business in Texas?
RULE
Rule 4 of the Federal Rules of Civil Procedure
BNSF Railway Co. v. Tyrrell
International Shoe Co. v. State of Washington, 326 U.S. 310 (1945)
Daimler AG v. Bauman, 571 U.S.
ANALYSIS
Personal Jurisdiction is the courts power to determine any case where the parties either reside
or conduct business in the geographical region of that court. In the case of cooperations, the
minimum contact rule applies as was determined in International Shoe Co. v. State of
Washington, 326 U.S. 310 (1945). According to Rule 4 of the Federal Rules of Civil Procedure,

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the personal jurisdiction of federal court is based on the jurisdiction of the courts in which the
specific federal court is in. This means that personal jurisdiction of a federal court in Texas
would be the same as the State/district courts. When one reads that provision together with the
determination of the Supreme Court in BNSF Railway Co. v. Tyrrell, it becomes clear that the
court does not enjoy such jurisdiction. The judges in that case emphasized that any action against
a company must be brought where the company is registered. In this case, Delaware. Though it
conducts some business in Texas, the Supreme Court determined that the Daimler case was the
correct precedent to follow.
CONCLUSION
The Texas court would not have jurisdiction.
5)
ISSUE
The Issues is whether the invitation by the aunt and the acceptance by the soldier amounts to a
legal contract.
RULE
Thomas v Thomas (1842) 2 QB 851.

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ANALYSIS
For there to exist a legally binding contract, several elements must be present; an offer, an
acceptance, consideration, competency.
This case bears 3 out of the 4 mentioned elements; offer, acceptance and competency.
However, there is no consideration. Consideration is simply the exchange of one thing of
monetary value for another. The value of the exchanged item or thing must be quantifiable. This
was determined in the English case of Thomas v Thomas, though the aunt offer accommodation
for the soldier, the soldier offers no quantifiable consideration in return.
CONCLUSION
There is no legally binding contract for lack of consideration hence the soldier has no legal
claim against the aunt.
6)
ISSUES
The primary ISSUE in this case is whether the law pertaining to the switching of infants falls
under the commerce clause of the Constitution.
RULE
Constitution of the USA (Article I, Section 8, Clause 3)
Hammer vs. Dagenhart

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ANALYSIS
The constitution grants congress power to regulate interstate commerce. The question then
becomes, what is interstate commerce and to what extent can congress exercise this power.
Interstate commerce is the buying and selling of commodities, the transportation of persons and
navigation of waters between states. The report accompanying the Act suggests that congress
views the act of baby switching a commercial/financial activity. In Hammer vs. Dagenhart, the
court concluded that the actual intent of the prohibition of child labor based on Congresses
disgust for child labor rather than the transit of goods as a result of the labor. Keeping this is
mind, the act of child switching cannot be seen as an interstate commercial activity as defined.
Whereas congress may pass laws regulating criminal activities. Placing such laws under the
commerce clause seems to me as an abuse of congressional power.
CONCLUSION
Susan should prevail as her defense may force the court to invalidate the law. Based on her
claim there may be a gap in the law that the court should examine and rectify. Her chances of
success are high.