BUL 4421 Midterm Review PDF

Review: 50-55 MC Questions Chapter 1 ​ Relevant areas of BL applicable to HR management: ○​ Agency law ○​ Contracts ○​ Employment & labor law ○​ Employment discrimination ​ Private Law ○​ Disputes between private individuals or groups ○​ Ex:...

Review: 50-55 MC Questions Chapter 1 ​ Relevant areas of BL applicable to HR management: ○​ Agency law ○​ Contracts ○​ Employment & labor law ○​ Employment discrimination ​ Private Law ○​ Disputes between private individuals or groups ○​ Ex: landlord v. tenant ​ Public Law ○​ Disputes between individuals & government ○​ Ex: illegal dumping, criminal law, homicide, etc. ​ Civil Law ○​ rights/responsibilities between persons & between persons & government ○​ Mostly private ​ Criminal law ○​ Someone committed an act against the public as a whole ​ Hierarchy of Law ○​ US Constitution ○​ Federal Statutes ○​ State Constitution ○​ State Statutes ○​ Common Law: collection of legal interpretations made by judges & are law unless revoked by new statutory law ​ Precedent ○​ Past decisions in similar cases that guide later decisions providing greater stability & predictability to the law ○​ Comes before common law ○​ Old case rulings used in present cases ​ Stare Decisis: ○​ When courts rely on precedent, they are obeying the principle of stare decisis (standing by their decision)  ○​ Rulings made in higher courts become binding precedent for lower courts → ex: if a case makes smoking illegal it binds that law that smoking is illegal ​ Restatements of Law ○​ Summaries of common law rules in a particular area of the law that have been enacted in most states Chapter 2 ​ Schools of Jurisprudence ○​ Natural law: describes certain ethical laws & principals believed to be morally right & above the laws devised by humans ​ Something that is right, something that is wrong ○​ Legal positivism: must abide by the law ○​ Historical school: following tradition or custom to shape the law ○​ Legal realism: judges consider more than just the law ​ Judges should consider factors such as social & economic conditions ○​ Cost benefit analysis: law should yield more benefits than its costs ​ If sp, resources saved that can be used to obtain more goods & services ​ Business Ethics ○​ Application of ethics to the special problems & opportunities experienced by business people ​ Social responsibility of business ○​ We expect you to follow the law ○​ Consists of expectations to do more than just the law ​ Minimal standards that must be met for a business to be an ethical business: The law (minimum standard) ○​ The law (legality of decision making) ○​ Social responsibilities of the form ○​ Ex: not making your employees child slaves, but also not paying regular employees less ​ WH Framework ○​ Who decisions impacts ​ Stakeholders: ppl impacted by the business’s decisions (employees, customers, owners, communities, future generations, management, etc.)  ○​ How to make decisions (guidelines) ​ Golden Rule ​ Do unto others as others would do to you ​ Public disclosure test ​ If the public knew about this decision, would you still make the same decision? ​ Universalization test ​ What would the world be like if every business did the same thing? ○​ Ex: everyone dumping waste into water ​ Values: positive notions that capture of what is right and wrong ○​ Ethics interplay w/ values ​ Theories of business ethics ○​ Ethical relativism: denies objective standards; individuals consider what they feel is the best for themselves ​ Ex: stealing medicine for a sick child is automatically wrong but can be right ○​ Consequentialism: focus on the consequence of a decision to face ethical dilemmas ​ If decision leads to corporation getting shut down → no good ○​ Utilitarianism: actions should provide the greatest good after having subtracted harm associated w/ the action in question ​ Which decision is the greatest good ​ Ex: trolley problem ○​ Principle of rights: focus on the impact the decision has on the rights of people (stakeholders) ○​ Virtue ethics: law should promote the values we feel people should have ​ Encourage people to be truthful, brave, seek justice, etc. Chapter 3 ​ Original v Appellate Jurisdiction ○​ Trial courts (OG Jurisdiction): power to hear & decides cases when 1st enter the legal system ○​ Care about FACTS ○​ Appellate: care about the LAW → rehear a case ​ Review previous judicial decisions  ​ Question of Law: issue w/ application of a law ​ Question of Fact: question about event of a case ​ Jurisdiction (power to hear a case) ○​ In Rem Jurisdiction: jurisdiction over a thing (ex: property within the state) ○​ Subject Matter Jurisdiction: court’s power to hear certain types of cases (bankruptcy, criminal, property, divorce, etc.) ​ Ex: don’t go to criminal court for a divorce ​ State Courts will have authority over most claims ○​ Exceptions: areas of law that are strictly federal (bankruptcy, immigration) ○​ THINK 10TH AMENDMENT ​ Federal Courts will have concurrent jurisdiction if: ○​ Diversity of citizenship ​ 1) Plaintiff or defendant resides in 1 state and plaintiff or defendant resides in another state/country and ​ 2) controversy concerns amount in excess of $75,000 ○​ Federal question ​ Process ○​ Summons: notifies defendant of the lawsuit & explains how & when to respond to the complaint ○​ Complaint: specifies factual & legal basis for lawsuit ○​ Service of Process: procedure where the complaint & summons are served upon defendant ○​ Default judgement: a judgement in favor of plaintiff occurs when: ​ 1) Defendant fails to answer complaint and ​ 2) plaintiff’s complaint alleges facts that would support such a judgement ​ Motion for Judgement on the Pleadings ○​ Requests court consider all the facts in the pleadings (complaint and answer) as true & apply law to those facts ○​ Court grants if finds that the only reasonable decision is in favor of the moving party ​ Motion for Summary Judgement (“MSJ”) ​ Discovery: how the parties get information  ○​ Interrogatories: written questions that 1 party sends to the other party to be answered under oath ○​ Request to produce documents: forces the opposing party to turn over certain info ○​ Deposition: attorneys examine a witness under oath & court reporter records every word the witness speaks Chapter 4 ​ Alternative Dispute Resolution (ADR): resolution of legal disputes through methods other than litigation ○​ Less expensive and less time-consuming than litigation(court/trial) ​ Negotiation ​ Mediation ​ Arbitration ○​ Resolution by 3rd party outside of judicial setting ○​ Arbitrator has the power to enforce decision (award), award doesn’t have to be money ○​ Voluntary process ○​ Arbitration agreement says: ​ How arbitrator is selected ​ How arbitration is administered ○​ Similar to trial ○​ Parties can have a lawyer or represent themselves ○​ Advantages: ​ Quicker, less expensive, choice of the arbitrator ○​ Disadvantages: ​ Hard to appeal an award ​ Giving up right to litigate ○​ Binding arbitration clause: provision in contract that mandates disputes arising under contract settled by arbitration ​ Mediation ○​ Disputing parties select neutral 3rd party ○​ If successful enter a contract called mediation agreement ○​ If u dont live up to contract you can be sued for breach of contract ​ Court Annexed ADR ○​ Requiring people to try to use ADR to resolve a dispute before litigation ○​ Most popular: mediation Chapter 5 ​ Federalism: division into state & federal law ○​ 10th Amendment: all powers reserved to the states are neither given to the Federal gov. nor taken from states ○​ Fed. legislation affecting a business must be based on Constitutional grant of authority ​ Concurrent authority: in some areas both state & federal gov have the ability to make law and regulate the same thing ○​ Ex: both fed. And state can give taxes ​ Federal Preemption: specific areas where federal law is only allowed to regulate & states can;t, & vice versa ○​ If state does, it’s unconstitutional ○​ Immigration is exclusively federal ​ Commerce Clause: allows feds to memorize commerce ○​ As long as law affects commerces the law is constitutional ​ Bill of RIghts ○​ 1st amendment: ​ Freedom of speech, religion, press etc. ​ Not an absolute right, limit to freedom of speech ​ Ex: defamation is not constitutional/legal ○​ 4th amendment: ​ Right to not have unreasonable searches or seizing a property without a warrant ​ Search warrant: court order that authorizes law enforcement to search for and seize specific things stated in warrant → only if there is PROBABLE CAUSE ​ Protects privacy ○​ 5th amendment ​ Protects against self-incrimination ​ Ex: defendant in criminal case does not have to testify against themself → plead the 5th ​ Protects against double jeopardy ​ Ex: gov cannot try a person for the same crime twice/more than 1 time ​ Due process clause: gov can’t deprive someone life, liberty, property w/o process of law (trial) ​ Ex: can’t be sent to jail w/o being given the right to a trial  1.​ Procedural Due Process → right to procedure a.​ Requires gov use fair procedures b.​ Entitles notice of legal action c.​ Entitled opportunity to be heard d.​ Entitles impartial tribunal 2.​ Substantive Due Process → laws need to be fair ○​ 14th amendment ​ Equal protection clause: treat everyone equally in law ​ Strict scrutiny (highest) test applies if: ​ Classification based on race, religion, etc. → protected ​ Law prevents rights of a person ​ 14th due process clause: ​ Rational basis test (lowest): when a classification scheme involves other matters ○​ Ex: height, weight, etc → not protected. ○​ Ex: passing a law saying you have to be 300 lbs to be a police officer ​ Intermediate scrutiny test (middle) ○​ Ex: gender, legitimacy of children ○​ Ex: passing a law that no women can be a police officer Chapter 7 ​ Government has to show 2 elements of a crime: ○​ Guilty/wrongful state of mind → mens rea ○​ Guilty act → actus reus ​ Exceptions: ​ Strict liability: actions that are strictly prohibited and it doesn’t matter if your mind was guilty or not ○​ Ex: having sex with a minor ​ Classifications of crimes ○​ Felony: serious crimes punishable by jail for more than a year or death ○​ Misdemeanor: less serious crimes that are punishable by fines or jail for less than a year ​ 364 days is a misdemeanor ○​ Petty Offense:  ​ Minor offenses, punished in jail for less than 6 months or small fine ○​ Robbery: taking property by force → threat, fear ​ Ex: taking something while being held at gunpoint ○​ Theft/Larceny: taking property w/ no force ​ Ex: pick pocketing ○​ Burglary: breaking and entering with an intent to commit a felony ​ Ex: breaking into a house w/ the intention to steal or assault someone ○​ False Pretenses: obtaining property illegally with a false representation in order to get it ​ Selling a painting for $100,000 and saying Picasso painted it (he didn’t) ○​ Forgery: signing someone else's name to change legal rights, liabilities, etc. ○​ Embezzlement: conversion of another’s property by one lawfully in possession of it (position of trust) ​ Accountant in a business secretly taking some of the money they’re supposed to organize ​ Miranda v. Arizona***** ○​ You have the right to remain silent, anything you say can and will be used against you in a court of law… ​ Exclusionary Rule ○​ Evidence found that violates 4th, 5th, or 6th amendment rights are not admissible in a court of law ○​ Ex: police makes someone empty their pockets w/ no reason & finds cocaine → cocaine can’t be used as evidence ​ Fighting Business Crime ○​ RICO (Racketeering Influenced and Corrupt Organizations Act) ​ Prevents businesses from serving as covers for racketeering ​ Ex: selling fake purses in NYC ○​ False Claims Act ​ Employees can sue employers for fraud against gov if they catch them doing something illegal ​ Employee gets part of damage/recovery ○​ Sarbanes-Oxley Chapter 8 ​ Tort law → civil law ○​ Tort claims brought by plaintiff ○​ Objective: compensation for injured party ​ Classifications of Tort Law ○​ Intentional ​ Defendant(tortfeasor) has intention to do an act the results in an injury ​ Ex: meaning to push someone and they end up getting hurt ​ Intent to harm isn’t needed → only the act ​ Assault: one person putting another person in fear or apprehension of immediate offensive bodily contact ​ Ex: pointing a gun at someone, lunging → just words don’t count ​ Apprehension → reasonable ​ Threat to harm → immediate ​ Battery: the actual touching that is unwanted & offensive ​ Ex: punching someone in the face ​ Defenses to battery: 1.​ Consent was given 2.​ Battery was during self defense ​ Defense to others ​ Defense to property ​ Defamation: intentional publication of a false statement that harms someone else’s reputation/character ​ Ex: saying a doctor touches his patients when that’s not true ​ Defenses: ○​ Truth ○​ Absolute privilege: context made it okay ​ Ex: said during testifying ○​ Conditional privilege ​ False imprisonment ​ A person/ppl are confined or restrained against their will for a period of time  ○​ Ex: kidnapping ​ Defenses: ○​ Shopkeeper’s privilege: retailers & security can hold someone if they have reasonable suspicion for shoplifting ​ Compensatory damages: given to plaintiff to make plaintiff whole, amount is equivalent to all the loss plaintiff had ​ Ex: you push someone and they break their leg → compensatory damages = amount for surgery to fix the leg ​ Nominal damages: acknowledgement of wrongful behavior (tort) with a small amount rewarded → a pat on the back and 5 bucks ​ Punitive damages: designed to punish tortfeasor ​ Based on severity of wrongful act and wealth of defendant ​ Etc. getting $300 million for a worker throwing coffee in an customers face and getting 3rd degree burns Chapter 9 ​ Negligence ○​ Defendant (tortfeasor) doesn’t act in a reasonable way and people are put at risk for harm b/c of it ​ Ex: driving drunk, running a red light ○​ Duty: standard a care that is expected ​ Breach of duty: failure to live up to standard of care ​ Ex: driving drunk or w/ eyes closed ​ Causation: must prove actual cause (cause in fact → actual effect/action that occurred because of BOD) and proximate cause (what was expected to happen from breach of duty, foreseeability) ​ Damages: compensating for plaintiff’s loss ○​ No duty to rescue if you don’t have a relationship w/ that person ​ Hot dog muncher → don’t need to save a kid from drowning if you’re a stranger witnessing it; if you were the kid’s dad, you do  ○​ Special Plaintiff’s Doctrines/Statutes ​ Res Ipsa Loquitur → the action speaks for itself ​ Dram Shop Act: allows bar owners & bartenders liable for individuals who leave intoxicated ​ Contributory negligence: allows defendant to escape total liability b/c plaintiff was also negligent ○​ Ex: two drunk drivers hitting each other ​ Pure Comparative Negligence: court determines the % of fault of defendant ○​ Ex: 1 guy speeding, 1 guy drunk driving → hit each other; speeding guy is 10% at fault, drunk driver is 90%; compensatory damages is $100,000 → speeder pays $10,000, drunk driver pays $90,000 ​ Modified Comparative Negligence ○​ If defendant is more than 50% at fault they are completely responsible ​ Assumption of Risk ○​ Allows defendant to escape liability b/c they claim the plaintiff engaged in an activity fully aware of harm/risk that might happen ​ Ex: plaintiff suing for passing out in a sauna but sitting in a sauna for 45 mins and not drinking water ​ Strict liability ○​ Defendant does an act that does something that is automatically dangerous ○​ Ex: using dynamite, zoo animal getting let loose ​ Special Defenses to Negligence ○​ Good Samaritan Statutes: can’t be sued if you’re attempting to due a good deed ​ Ex: can’t be sued for trying to save a stranger from drowning and them getting hurt in the process ○​ Superseding Cause: unforeseeable event Chapter 12 ​ Trademarks: distinctive mark, slogan, brand ○​ Nike swoosh, mcdonald’s arches and jingle → easily recognized ○​ Must be registered w/ U.S. Patent and Trademark Office → under federal law and renewed every 10 years  ○​ If trademark is registered and used by an infringer: ​ Business can recover damages from infringer ​ Business can get an injunction that prohibits the infringer from using the trademark ever again ○​ Trademark Infringement factors: ​ How similar the two marks are ​ Is there actual confusion? ​ User’s good faith ​ Quality of user’s product ​ Sophistications of purchases ​ Copyright: protects any written expressions of original, creative ideas ○​ Ex: books, songs, poetry, youtube videos, etc. ○​ Most common defense for infringement: fair use doctrine ​ Patent: protects an invention, product, process, machine, or plant ○​ Obtain a patent w/ the Lanham Act → allows the license of use for royalties (part of company) ​ Trade Secret: protects unregistered secret ideas ○​ Ex: krabby patty secret formula ○​ Holder of trade secret can sue person who illegally takes it if they can prove: ​ A trade secret existed ​ Defendant got it illegally ​ Defendant used the trade secret w/o the plaintiff’s permission ​ ​ ​ ​