Download BUL 4421 Midterm Exam Questions and Answers: Business Law for HR Management and more Exams Business and Labour Law in PDF only on Docsity!
BUL 442 1 MIDTERM EXAM QUESTIONS AND CORRECT
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Business law applicable to HR managment - ANSWER>>agency law, contracts, employment and labor law, and employment discrimination
Private law - ANSWER>>Regulates disputes between private individuals or groups, ex. landlord and tenant
Public law - ANSWER>>Regulates disputes between individuals and government, ex. dumping in violation of state or federal environmental laws.
Civil law - ANSWER>>Delineates the rights and responsibilities implied in relationships between persons and between persons and their government.
Criminal Law - ANSWER>>Regulates incidents in which someone commits an act against the public as whole, such as by conducting insider trading on the stock exchange.
Hierarchy of Laws - ANSWER>>top to bottom: U.S. Constitution, Federal Statues, State Constitution, State Statues, Common Law.
Common Law - ANSWER>>Collection of legal interpretations made by judges and are law unless revoked by new statuory law
Precedent - ANSWER>>past decisions in similar cases that guide later decisions thereby providing greater stability and predictability to the law.
Stare Decisis - ANSWER>>-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.
Restatement of the law - ANSWER>>Summaries of common law rules in a particular area of the law that have been enacted in most states.
Schools of Jurisprudence - ANSWER>>
Natural law - ANSWER>>describes certain ethical laws and principals believed to be morally right and "above" the laws devised by humans.
Legal Postivism - ANSWER>>Must abide by duly authorized law, law is distinct from morality.
Historical School - ANSWER>>Following tradition or custom to shape the law, closely linked with the doctine of stare decisis.
Legal Realism - ANSWER>>Judges should consider more than just the law, judges should consider factors such as social and economic conditions.
Cost Benefit Analysis - ANSWER>>Law should yield more benefits than it costs, if so resources saved that can be used to obtain more goods and services.
Business Ethics - ANSWER>>the application of ethics to the special problems and opportunities experienced by business people
Business ethics includes (but not limited to) - ANSWER>>Decision in choosing a method of production, decisions regarding how to compete with competing firms, social responsibilities of firm.
WPH Framework for Business Ethics - ANSWER>>Who decision impacts
Purpose of decision
Principle of Rights - ANSWER>>whether a business decision is ethical depends on how the decision affects all those involved.
Virtue Ethics - ANSWER>>the development of virtues, or positive character traits such as courage, justice, and truthfulness, is the basis for morality.
Jury Selection "Voir Dire" - ANSWER>>this process selects the jurors who will decide the case as well as two or three alternate jurors
Peremptory Challenges - ANSWER>>allow a party to challenge a certain number of jurors without giving a reason, exception a party cannot use peremptory challenges based solely on race or gender.
(Original) Trial Courts - ANSWER>>Courts of original jurisdiction, have the power to hear and decides cases when first enter the legal system
Appellate Courts - ANSWER>>power to review the previous judicial decisions to determine whether the trial court erred in decisions, concerned primarily with question of law, not question of fact.
Exclusive Federal Jurisdiction - ANSWER>>Federal courts have exclusive jurisdiction over claims arising under federal statues
Concurrent Federal Jursidiction - ANSWER>>both state and federal courts have jurisdiction over a case, remember diversity of citizenship
Subject Matter Jurisdiction - ANSWER>>a courts power to hear certain kinds of cases, (i.e. criminal, probate, bankruptcy,etc.)
In Rem Jurisdiction - ANSWER>>jurisdiction over a thing (i.e. property within the state).
Quasi in Rem Jurisdiction - ANSWER>>(attachment jurisdiction) over a defendants property unrelated to the Plaintiff's claim.
Diversity Jurisdiction must satisfy 2 elements - ANSWER>>-Plaintiff or Defendants resides in one state and plaintiff or defendant resides in another state or country and
- controversy concerns amount in excess of $75,
Summons - ANSWER>>notifies Defendant of the lawsuit and explains how and when to respond to the complaint
Complaint - ANSWER>>Specifies factual and legal basis for lawsuit
Service of Process - ANSWER>>the procedure by which the Complaint and Summons are served upon the Defendant
Default Judgment - ANSWER>>A judgement in favor of the Plaintiff that occurs when
-defendant fails to answer the complaint and
- the plaintiffs complaint alleges facts that wold support such a judgment.
Motion for Judgment on the Pleadings - ANSWER>>Requests for the court to consider all the facts in the pleadings as true and apply laws to those facts.
- court grants if finds that the only reasonable decision is in favor of the moving party.
Motion for Summary Judgment - ANSWER>>-asserts no factual disputes exist and if apply law to undisputed facts only reasonable decision would be in favor of the moving party.
-difference between MSJ and motion for judgement on pleadings is that the moving party may use affidavits, relevant documents, and deposition transcripts or interrogatories in support of the motion. (i.e. extrinsic evidence is considered)
Discovery - ANSWER>>How the parties gather information
hearing
-decision is called an award, even if no monetary compensation is awarded.
Arbitration Advantages - ANSWER>>-more effficient and less expensive than litigation
-parties have more control over process
-parties can choose arbitrator with expertise in field concerning dispute
-arbitrator has greater flexibility in decisions than judge.
Arbitration Disadvantages - ANSWER>>-injustice more likely to occur because appealing arbitration award is very difficult
-giving up important right to litigate
-more businesses use arbitration the more it will become similar to litigation
-disputes are hidden by the arbitration process
Binding Arbitration Clause - ANSWER>>Provision in contract that mandates disputes arising under contract settled by arbitration.
Submission Agreement - ANSWER>>contract providing that specific dispute resolved through arbitration.
Unconscionabile contract provision - ANSWER>>"manifestly unfair or oppressive and are dictated by a dominant party, would not be enforced.
Mediation - ANSWER>>the disputing parties select neutral third party to help
-facilitate communication
-suggest ways for the parties to solve their dispute
Mediation continued - ANSWER>>if the mediation is successful the parties enter into a mediation agreement, if party breaches the mediation agreement the other
non-breaching party may seek to enforce settlement.
Court- Annexd ADR - ANSWER>>Programs where courts encourage or mandate use of some of ADR before bringing dispute to trial, most popular court annexed ADR is mediation.
10th amendment of U.S. Constitution - ANSWER>>states all powers neither given to federal government nor taken from states is reserved for states. thus federal legislation affecting business must be based on express Constitutional authority.
Supremacy Clause - ANSWER>>Any state or local law that directly conflicts with the Constitution, federal laws or treats is void.
Concurrent authority - ANSWER>>in some area both state and federal governments have the power to regulate the same subject matter.
Federal Preemption - ANSWER>>If Federal Govt regulates an area of law exclusively any state law that contradicts the federal law will be deemed unconstitutional
Commerce Clause Act 1, Sec. 8 of U.S. Constitution - ANSWER>>U.S. congress has the power to "regulate the Commerce with foreign nations and among the several states, and within the Indian Tribes."
Bill of Rights - ANSWER>>- first 10 amendments to the U.S. Constitution
-substantially affects government regulation of business
-prohibits federal govt from infringing on individual freedoms
14th amendment - ANSWER>>-extends most of the provision in the Bill of Rights to the states.
-Thus, the federal and state governments cannot deprive individuals of the freedoms protected by the Bill of Rights.
(Strict Scrutiny) 14th Amendment Equal Protection Clause - ANSWER>>-applies if law prevents individuals from exercising fundamental right.
-laws classification scheme involves suspect classifications based on race, national origin, or citizen ship.
(Intermediate Scrutiny) 14th Amendment Equal Protection Clause - ANSWER>>-if the laws classification schemed is based on gender or on the legitimacy of children.
(Rational Basis) 14th Amendment Equal Protection Clause - ANSWER>>- when a classification scheme involves other matters.
Govt must demonstrate 2 elements of a crime - ANSWER>>-wrongful behavior, actus reus or guilty act AND
-wrongful state of mind, men rea or guilty mind
Mens rea excpetion requirments - ANSWER>>- strict liability crimes
strict liability crimes - ANSWER>>-applies to actions that regardless of the care taken, are specifically prohibited, (i.e.) selling cigs or alcohol to a minor.
Felony - ANSWER>>includes serious crimes, such as murder, punishable by imprisonment for more than one year or death.
Misdemeanor - ANSWER>>less serious crimes punishable by fines or jail for less than one year.
Petty Offenses - ANSWER>>minor misdemeanors usually punishable by a jail sentence of less than six months or a small fine (e.g. violating a building code)
Robbery - ANSWER>>the forceful and unlawful taking of personal property
Burgalary - ANSWER>>the unlawful entering of a building with the intent to commit a felony
Larceny - ANSWER>>the secretive and wrongful taking and carrying away of the personal property of another with the intent to permanently deprive the rightful owner of its possession.
False Pretenses - ANSWER>>Illegal obtaining of property belonging to another through materially false representations of an existing fact, with knowledge of their falsity and intent to defraud.
Forgery - ANSWER>>the fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another.
Embezzlement - ANSWER>>the wrongful conversion of another property by one lawfully in possession of it
4th Amendment continued - ANSWER>>- protection from unreasonable search and seizure
- restrictions on warrants
- govt officials are not allowed to perform search without proper warrant or without probably cause for a search
-protects an individuals privacy
5th Amendment Protections - ANSWER>>- Double Jeopardy
-Right to remain silent
Miranda v. Arizona - ANSWER>>-where the Miranda Rights come from
-you have the right to remain silent and reuse to answer any questions
Intentional Torts continued - ANSWER>>-intent to harm not needed
-merely need intent to engage in a specific act, which ultimately result in an injury, physical or economic, to another.
-motive is not required to prove liability in an intentional tort case.
Tort law assumes - ANSWER>>- people intend normal consequences of their actions... torts against persons, torts against property, and torts against economic interests.
Assault - ANSWER>>-when one person places another in fear or apprehension of an immediate, offensive bodily contact
-apprehension must be reasonable
-threat of harm must be immediate
-word alone without a sign of action usually insufficient to constitute an assault.
Battery - ANSWER>>- Intentional, unwanted, offensive bodily contact
Defenses to battery - ANSWER>>-consent (battery did not occur because the other party agreed to the contact)
- self defense ( you responded to the unwanted contact with comparable force to defend yourself
-defense of others
Defamation - ANSWER>>-the intentional publication (or communication to a third party) of a false statement harmful to someones reputation.
Defense to Defamation - ANSWER>>-truth (harmful statement was true)
-absolute privilege ( testifying in court, during a trial, or during congressional debate in House or Senate)
-Conditional Privilege ( no liability unless statement made with actual malice, (i.e.)
knowledge of the falsity or reckless disregard for the truth.)
False Imprisonment - ANSWER>>- occurs when an individual is confined or restrained against his or her will for an appreciable period of time
Shopkeepers Privilege - ANSWER>>-retailers and security guards may reasonably question suspected shoplifters and detain them for a reasonable period of time
Compensatory Damages - ANSWER>>-puts plaintiff in position he or she would have been had tort not occured
-purpose is to make plaintiff whole
-amount: equivalent to all losses caused by tort, including compensation for pain and suffering, but not attorney's fees.
Nominal damages - ANSWER>>-minimal amount that signifies that defendants behavior was wrongful but caused no harm
-Purpose: to recognize the defendant committed tort against plaintiff
-amount: a trivial amount, typically $1-
Punitive Damages - ANSWER>>- to punish a defendant and deter such conduct in future
-amount based on 2 factors; severity of wrongful conduct, wealth of defendant
Negligence (must prove 4 elements) - ANSWER>>Duty, Breach of Duty, Causation, Damages
Unfortunate Accident - ANSWER>>- an incident that cannot be avoided, even with reasonable car not negligence,( e.g. Stroke while driving)
Reasonable Person Standard - ANSWER>>- a measurement of the way members of society expects and individual to act in a given situation
demonstrating any degree of negligence on the part of the Plaintiff that contributed to the Plaintiffs harm
Pure Comparative Negligence - ANSWER>>- the court determines the percentage of fault of the defendant.
Assumption of the Risk - ANSWER>>- Allows the defendant to escape liability by establishing that Plaintiff engaged in an activity fully aware that the type of harm he or she suffered was possible consequences of engaging in the activity.
Good Samaritan Statues - ANSWER>>-laws in some states hold that people in peril who receive voluntary aid from other cannot hold those offering aid liable for negligence.
Superseding Cause - ANSWER>>-an unforeseeable event that interrupts the casual chain between the Defendants breach of duty and the damages the Plaintiff suffered.
Trademarks - ANSWER>>-distinctive mark, word, design, picture, or arrangement used with a product that helps consumers identify the product with the producer.
-to be protected interstate, the trademark must be registered with the U.S. Patent and Trademarks Office under the Lanham Act of 1947
-if trademark is registered the holder of the mark may recover damages from an infringer who uses it to pass off good as being those of the mark owner
-the owner may also obtain an injunction prohibiting the infringer from using the mark.
Trademarks continued - ANSWER>>-once mark registered, registration must be renewed between fifth and six years.
-after first renewal mark holder must renew every 10 years.
-if mark initially before 1990, renewal necessary only every 20 years
Strength of Trademark (ascending strength) - ANSWER>>(generic, descriptive, suggestive, arbitrary or fanciful)
Generic Term - ANSWER>>-refers to type of particular product
- no trademark protection whatsoever
Descriptive Mark - ANSWER>>-identifies a significant characteristic of the product, but is not the common name of the product
-must obtain secondary meaning to obtain trademark protection
Infringement deciding factors - ANSWER>>-degree of similarity between marks
-evidence of actual confusion among consumers
-users good faith
-sophistication of purchasers
copyright - ANSWER>>-protects fixed from of expression of original creative idea
Fair use doctrine - ANSWER>>-most common defense against copyright infringement
-provides that portion of copyrighted work may be reproduced for purposes of "criticism, comment, news reporting, teaching, scholarship, and research.
Patent - ANSWER>>-Protects a product, process, invention, machine, or plant, that is produced by asexual reproduction and that meets the criteria of being novel, useful, and nonobvious
Patent continued - ANSWER>>-obtaining a patent under the Lanham Act allows the holder to license the use of his or her patented idea for royalties.
Trade Secret - ANSWER>>-holder of trade secret can sue who illegally takes the trade secret if the owner of the trade secret can prove; 1) trade secret existed, 2) defendant acquired it through unlawful means, 3) the defendant used the trade secret without the
