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BUL 4421-Midterm With 227
Comprehensive Questions
Chapter 1: Introduction to Business Law - ✔ ✔ Chapter 1: Introduction to Business Law This Public Disclosure test imagines that our actions are being broadcast nationally. - ✔ ✔ Television Test This test is how the community perceives us: - ✔ ✔ self-concept This test encompasses the ethical guidelines that urge us to consider, before we act, what the world would be like if everyone acted in that way. - ✔ ✔ Universalization Test Theories of Business Ethics (6): CU-PAVE - ✔ ✔ 1. Consequentialism
- Utilitarianism
- Principle of rights
- Absolutism
- Virtue Ethics
- Ethical Relativism Jurisdiction over a property or status of an out-of-state defendant located within the court's jurisdiction area. - ✔ ✔ In Rem Jurisdiction
- Jurisdiction over a defendant's property that is within the jurisdictional boundaries of the court.
- Applies to personal suits against a defendant in which the property is not the source of the conflict but is sought after as compensation by the plaintiff. - ✔ ✔ Quasi in Rem Jurisdiction (aka Attachment Jurisdiction) Civil Lawsuits contain (2) parts: - ✔ ✔ Summons and Complaint
- A legal document issued by the court to notify defendant of the lawsuit and explains how and when to respond to the complaint.
- This legal document is used in both civil and criminal proceedings. - ✔ ✔ Summons
- A formal written document which begins a civil lawsuit (aka pleadings filed)
- Specifies factual and legal basis for lawsuit along with damages the plaintiff seeks. - ✔ ✔ Complaint The procedure by which the court delivers a copy of the statement of claim, such as summons, complaint, or subpoena, to defendant. - ✔ ✔ Service of Process A judgment in favor of the Plaintiff when the Defendant fails to respond to the complaint. - ✔ ✔ Default Judgment A default judgement occurs when (2): - ✔ ✔ 1. The defendant fails to answer the complaint.
- The Plaintiff's complaint alleges facts that would support such a judgment.
attempt to "discover" pertinent facts and avoid any surprises in the courtroom during trial. - ✔ ✔ Discovery Phase Common Discovery Tools (3): RID - ✔ ✔ 1. Interrogatories
- Request to Produce Documents
- Deposition Written questions that one party sends to the other party to be answered under oath. Done during the pretrial phase, this is to clarify matters of evidence and help determine what facts will be presented at a trial in the case. - ✔ ✔ Interrogatories (aka Request for Further Information) Forces the opposing party to turn over certain information unless it is privileged. - ✔ ✔ Request to Produce Documents A pretrial sworn and recorded testimony of a witness that is acquired out of court with no judge present. Used to impeach. - ✔ ✔ Deposition Relevant areas of business law applicable to human recourse management involve (4): - ✔ ✔ 1. Agency law
- Contracts
- Employment and labor laws
- Employment discrimination This type of law regulates disputes between private individuals or groups.
(Ex: dispute between landlord and tenant governed by private law). - ✔ ✔ Private law This type of law regulates disputes between private individuals and government. (Ex: dumping in violation of state or federal environmental laws). - ✔ ✔ Public law This type of law delineates the rights and responsibilities implied in relationship between persons, or between person and their government. - ✔ ✔ Civil law An unforeseeable event that interrupts the causal chain between the Defendant's breach of duty and the damages the Plaintiff suffered. - ✔ ✔ Superseding Cause Chapter 12: Intellectual Property - ✔ ✔ Chapter 12: Intellectual Property Distinctive mark, word, design, picture, or arrangement used a product that helps consumers identify the product with the producer. - ✔ ✔ Trademarks To be protected interstate, the trademark must be: - ✔ ✔ registered with the U.S. Patent and Trademark Office under the Lanham Act of 1947 If the trademark is registered, the holder of the mark may recover ___________ from an infringer who uses it to pass off goods as being those of the mark owner. - ✔ ✔ damages
-Requires imagination, thought, and perception to reach a conclusion as to the nature of the goods. -These goods fall short of directly describing the qualities or functions of a particular product or service, but merely suggest such qualities.
- This mark is entitled to protection without proof of secondary meaning. - ✔ ✔ Suggestive In addition to Strength of Mark, the Courts will consider following factors to determine whether infringement (5): - ✔ ✔ 1. Degree of Similarity between marks
- Evidence of Actual Confusion
- User's Good Faith
- Quality of User's Product
- Sophistication of purchasers The protection of the expression of a creative work; i.e., protection of the fixed form that expresses the idea. - ✔ ✔ Copyright Most common defense to allegation of copyright infringement: - ✔ ✔ fair use doctrine The doctrine which provides for the lawful use of a limited portion of another's work for purposes of criticism, comment, news reporting, teaching, scholarship, and research. - ✔ ✔ Fair Use Doctrine 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. It gives the owner the exclusive right to produce, sell, and use the patent object for 20 years. - ✔ ✔ Patent Obtaining a patent under the Lanham Act allows the holder to license the use of his or her patented idea for ___________. - ✔ ✔ royalties Holder of __________ Secret can sue one who illegally takes the trade secret if the owner of the trade secret can prove certain criteria. - ✔ ✔ Trade A Trade Secrete owner must prove (3): - ✔ ✔ 1. A Trade Secret existed
- Defendant acquired it through unlawful means
- The Defendant used the trade secret without the Plaintiff' permission Stages of Pretrial Stage (3): - ✔ ✔ 1. Informal negotiations
- Pleadings
- Service of Process
- ✔ ✔ This type of law regulates incidents in which someone commits an act against the public as a whole, such as by conducting insider trading on the stock exchange.
- Government is plaintiff - ✔ ✔ Criminal law Put these laws in order of Hierarchy of Laws: States Statutes, U.S. Constitutions, Common Law, state constitution, and Federal Statutes - ✔ ✔ - U.S. Constitutions
- Historical School
- Legal Positivism
- Legal Realism
- Natural Law The school of jurisprudence that recognizes the existence of higher law, or law that is morally superior to human laws. - ✔ ✔ Natural Law The school of jurisprudence which holds that because society requires authority, a legal and authoritative hierarchy should exist. When a law is made, therefore, obedience is expected because authority created it.
- Must abide by duly authorized law
- Law is distinct from morality
- Moral questions about the law should not interfere with our inclination to obey it.
- A judge may write that she is deciding to enforce the law in question but that her decision does not necessarily mean she sees the law as the morally correct rule. - ✔ ✔ Legal Positivism A school of jurisdiction that:
- Follows tradition or custom to shape the law
- Is closely linked with the doctrine of stare decisis
- We assume past practice was the product of careful thought. - ✔ ✔ Historical School (aka tradition or custom)
Judges who follow this school of thought are more likely to depart from past court decisions to account for the fact that our society is constantly shifting and evolving.
- Judges should consider more than just the law
- Judges should consider factors such as social and economic conditions (Ex: The law protects pregnant women) - ✔ ✔ Legal Realism An economic school of jurisprudence in which all costs and benefits of a law are given monetary values. Those laws with the highest ratios of benefits to costs are then preferable to those with lower ratios. (Ex: (i) Polluted land is an economic loss, as it cannot be used for farming or recreation. Polluted water can be toxic for fish and cannot be used for drinking (ii) the price of environmental cleanup and lost productivity in the economy as a whole may be even greater. - ✔ ✔ Cost Benefit Analysis Chapter 2: Business Ethics - ✔ ✔ Chapter 2: Business Ethics The use of ethics and ethical principles to solve business dilemmas. - ✔ ✔ Business Ethics Example of bad Business Ethics: - ✔ ✔ Ex: Accutane
- Is a company doing the right thing when it attempts to reduce the costs of advertising by not listing all possible complications of the medicine for the consumer? Business Ethics include (but are not limited to) (3): P,C, SR - ✔ ✔ 1. Decisions in choosing a method of production.
How should we think about the future generation stakeholders? - ✔ ✔ Think more broadly about additional stakeholders who may be affected just as much in the long run. Then we will be less likely to make decisions that have unintended negative ethical impacts. The basic unit of business ethics is ____________. - ✔ ✔ values Positive notions that capture our sense of what is good or desirable. - ✔ ✔ values We derive our ethics from the interplay of ____________. - ✔ ✔ values Values represent our understanding of the purpose we will fulfill by making particular ___________. - ✔ ✔ decisions. Examples of the PURPOSE we fulfill through particular decisions (4): JEFS - ✔ ✔ 1. Freedom
- Security
- Justice
- Efficiency Tests to decide HOW do we make Ethical Business Decisions (3)? PUG
- Public Disclosure
- Universalization Test Do unto others as you would have them do unto you. - ✔ ✔ Golden Rule
The ethical guidelines that urge us to consider how others would view our actions when making a decision. - ✔ ✔ Public Disclosure Test Chapter 4: Alternative Dispute Resolution - ✔ ✔ Chapter 4: Alternative Dispute Resolution
- Refers to the resolution of legal disputes through methods other than litigation.
- Usually is less expensive and less time-consuming that litigation. - ✔ ✔ Alternative Dispute Resolution ("ADR") Alternative Dispute Resolution (ADR) includes (7): ....SPAMMEN - ✔ ✔ 1. Summary jury trials
- Private trials
- Arbitration
- Mediation
- Mini-trials
- Early neutral case evaluations
- Negotiation
- A bargaining process in which disputing parties interact informally, either with or without lawyers, to attempt to resolves their dispute.
- A neutral third party, such as a judge or jury, is not involved.
- The parties maintain high levels of autonomy.
- Adversarial negotiation
- Arbitrator's decision is called an award, even if no monetary compensation is awarded. - ✔ ✔ Arbitrator's Award
- More efficient & less expensive than litigation.
- Parties have more control over the process.
- Parties can choose arbitrator with expertise in field concerning dispute.
- Arbitrator has greater flexibility in decision than judge. - ✔ ✔ Arbitration Advantages
- Injustice more likely to occur because appealing an arbitration award is very difficult.
- Giving up important right to litigate.
- The more business use arbitration the more it will become similar to litigation.
- Disputes are hidden by arbitration process. - ✔ ✔ Arbitration Disadvantages Methods of Securing Arbitration (2): - ✔ ✔ 1. Binding Arbitration Clause
- Submission Agreement Provision in contract that mandates disputes arising under contract settled by arbitration. - ✔ ✔ Binding Arbitration Clause Contract providing that specific dispute resolved through arbitration. - ✔ ✔ Submission Agreement
Grounds for rescinding an unconscionable contract. - ✔ ✔ Unconscionability A term applied to a contract in which one party has so much bargaining power than the other party that the powerful party dictates the terms of the agreement and eliminates the other party's free will. - ✔ ✔ Unconscionable A type of intensive negotiation in which disputing parties select neutral third party to help: (i) Facilitate communication and (ii) Suggest ways for the parties to solve their dispute. - ✔ ✔ Mediation If the mediation is successful the parties enter into a ________________ agreement. - ✔ ✔ mediation True or False: If a party breaches (does not perform) the mediation agreement, the other non-breaching party may seek to enforce settlement. - ✔ ✔ True
- Programs where courts encourage or mandate use some of ADR before bringing dispute to trial.
- Most popular Court-Annexed ADR is Mediation - ✔ ✔ Court- Annex ADR Chapter 5: Constitutional Principles - ✔ ✔ Chapter 5: Constitutional Principles A system of government in which power is divided between a central authority and a constituent political units. - ✔ ✔ Federalism
Two things the Bill of Rights does: - ✔ ✔ 1. Substantially affects government regulation of business.
- Prohibits federal government from infringing on individual freedoms
- Not an absolute right
- A person does not have a right to yell "fire" in a crowded theater, make false statements of fact that injurious to another's reputation, or to use obscenity. (Ex: Fighting words, defamatory words, and obscenity are unprotected speech). - ✔ ✔ First Amendment Prohibits government from conducting unreasonable searches of individuals and seizing their property to use as evidence against them. (Ex: Ohio state law required addresses of buyers of more than 5 kegs from keg stores, and that signed agreements on purchase that police could enter the property. Ohio law was repealed in 2001. Page 112). - ✔ ✔ Fourth Amendment A court order that authorizes law enforcement agents to search for and seize items specifically described in the warrant. - ✔ ✔ Search Warrant Any essential element and/or standard by which a lawful officer may make a valid arrest, conduct a personal or property search, or obtain a warrant. - ✔ ✔ probable cause Warrants are usually _________. - ✔ ✔ vague
- Protects against self-incrimination (do not have to testify against one self).
- Protects against double jeopardy.
- Contains due process clause - ✔ ✔ Fifth Amendment Government cannot try a person more than once for the same crime. - ✔ ✔ Double Jeopardy
- Government cannot deprive person of life, liberty, or property without due process of law.
- Procedural Due Process
- Substantive Due Process - ✔ ✔ Due Process Clause The requirement that the government must use fair procedures before depriving a person of his or her life, liberty, or poverty.
- Requires government use fair procedures
- Entitles notice of legal action against him/her
- Entitled opportunity to be heard
- Entitles impartial tribunal (Jury can't be bias) - ✔ ✔ Procedural Due Process The requirement that laws that depriving an individual of life, liberty, or property be fair and not arbitrary. - ✔ ✔ Substantive Due Process Fourteenth Amendment Due Process Clause (3): - ✔ ✔ 1. Strict Scrutiny
- Intermediate Scrutiny
- Rational Basis
