BA325 EXAM 1

Putting aside the legal merits of the plaintiffs' arguments, does their "public trust" lawsuit represent a viable strategy for achieving their goals, given that the Supreme Court has a 6-3 conservative majority that most commentators believe will persist for decades? Can the plaintiffs in Juliana "win" in some ways by pursuing their case, even if the Supreme Court ultimately rejects their legal theory? (C5)

6-3 conservative vote changes out come of political case because they aren't as worried about the environment; can definitely win in some way because we are talking about it in class right now; supreme court enables massive publicity on environmental issues; need to raise awareness for the environment; positive outcome because it forces a dialogue and has national attention regardless of outcome.

Diversity of Citizenship

A basis for federal court jurisdiction over a lawsuit between citizens of different states or a lawsuit involving a US citizen and a citizen of a different country.

Law

A body of enforceable rules governing relationships among individuals and between individuals and their society.

Toxic Tort

A civil wrong arising from exposure to a toxic substance, such as asbestos, radiation, or hazardous waste.

Stare Decisis

A common law doctrine under which judges are obligated to follow the precedents established in prior decisions

Nuisance

A common law doctrine under which persons may be held liable for using their property in a manner that unreasonably interferes with others' rights to use or enjoy their own property.

Justiciable Controversy

A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case.

Precedent

A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.

Preemption

A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.

Summons

A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff's complaint. The document is delivered by a sheriff or any other person so authorized.

Primary Source of Law

A document that establishes the law on a particular issue, such as a constitution, a statute, an administrative rule, or a court decision.

Bankruptcy Court

A federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law.

Administrative Agency

A federal, state, or local government agency created by the legislature to perform a specific function, such as to make and enforce rules pertaining to the environment.

Environmental Impact Statement (EIS)

A formal analysis required for any major federal action that will significantly affect the quality of the environment to determine the action's impact and explore alternatives.

Summary Jury Trial (SJT)

A method of settling disputes by holding a trial in which the jury's verdict is not binding but instead guides the parties toward reaching an agreement during the mandatory negotiations that immediately follow.

Motion for Judgement on the Pleadings

A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.

Motion for Judgement n.o.v.

A motion requesting the court to grant judgement in favor of the party making the motion on the ground that the jury's verdict against him or her was unreasonable and erroneous.

Interpretive Rule

A nonbinding rule or policy statement issued by an administrative agency that explains how it interprets and intends to apply the statutes it enforces.

Potentially Responsible Party (PRP)

A party liable for the costs of cleaning up a hazardous waste-disposal site under the Comprehensive Environmental Response, Compensation, and Liability Act.

Negotiation

A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them.

Citation

A reference to a publication in which a legal authority - such as a statute or a court decision - or other source can be found

Interrogatories

A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath.

Small Claims Court

A special court in which parties can litigate small claims without an attorney.

Probate Court

A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate.

Enabling Legislation

A statute enacted by Congress that authorizes the creation of an administrative agency and specifies the name, composition, purpose, and powers of the agency being created.

Civil Law System

A system of law derived from Roman law that is based on codified laws (rather than on case precedents).

Compelling Government Interest

A test of constitutionality that requires the government to have compelling reasons for passing any law that restricts fundamental rights, such as free speech, or distinguishes between people based on a suspect trait.

Writ of Certiorari

A writ from a higher court asking a lower court for the record of a case.

Brief

A written summary or statement prepared by one side in a lawsuit to explain its case to the judge.

Relatedly, do you think it will actually have a significant impact on how American corporations make decisions? (C2)

Ads now have political viewpoints

Legislative Rule

An administrative agency rule that carries the same weight as a congressionally enacted statute

Utilitarianism

An approach to ethical reasoning in which an action is evaluated in terms of its consequences for those whom it will affect. A "good" action is one that results in the greatest good for the greatest number of people.

Duty-Based Ethics

An ethical philosophy rooted in the idea that every person has certain duties to others, including both humans and the planet. Those duties may be derived from religious principles or from other philosophical reasoning.

Voir Dire

An important part of the jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes, and biases to ascertain whether they can be impartial jurors.

Metadata

Data that are automatically recorded by electronic devices and provide information about who created a file and when, and who accessed, modified, or transmitted it on their hard drives. Can be described as data about data.

How does the "economic responsibility" under CSR theory differ from the profit-maximization imperative under SHV theory, and how does that difference impact the assessment of whether the firm's MA program was warranted? (C4)

FIND ANSWER

One of the major issues Masterpiece left undecided is: Does the First Amendment allow a business to violate an anti-discrimination statute by refusing to provide certain services if (a) those services would require the business to engage in "artistic expression," and (b) that expression would require the owner to violate his sincerely held religious beliefs? (C3)

FIND ANSWER

Under the third element of CSR theory, are there addition reasons you have not already identified in response to a and b that the firm's MA program might be unethical? (C4)

FIND ANSWER

A company can broadly prohibit its employees from criticizing the company via social media

False

According to German philosopher Immanuel Kant, individuals should evaluate their actions in light of the consequences that would follow if they were the only members of society that acted in that way

False

Because the Constitution does not specifically a right to privacy, this right is defined to people

False

In mediation, the mediator imposes a decision with which both sides must comply

False

The Environmental Protection Agency can regulate a toxic substance that poses an imminent hazard but cannot prohibit its use altogether

False

The First Amendment protects defamatory speech

False

The amount in controversy in a diversity of citizenship case must be more than $1 million before a federal court can take jurisdiction

False

There are no defenses to liability under the Comprehensive Environmental Response, Compensation, and Liability Act

False

There is no debate that employees have an absolute right to free expression to make negative posts in social media about other employees and managers

False

When a release of hazardous chemicals from a site occurs, potentially responsible parties can avoid liability through transfer of ownership

False

Apply the first three responsibilities of CSR theory, namely: (a) the economic responsibility; (b) the legal responsibility; and (c) the ethical responsibility. Applying these elements, was the firm's MA program justified? (C4)

If employees are treated well then arbitration are good

Question of Law

In a lawsuit, an issue involving the application or interpretation of a law.

Question of Fact

In a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point.

If baking a cake is "artistic" how would a court even determine what does and does not qualify as "artistic expression"? Where does one draw the line? (C3)

It is a hard line to draw; case by case

Exclusive Jurisdiction

Jurisdiction that exists when a case can be heard only in a particular court or type of court.

Substantive Law

Law that defines, describes, regulates, and creates legal rights and obligations.

National Law

Law that pertains to a particular nation (as opposed to international law).

Should the First Amendment give this sole proprietor the right to refuse to photograph a gay wedding, based on her religious beliefs? (C3)

Legally easier to get away with because she works for herself

Based on what you heard in the podcast, does Kennedy's opinion clarify anything at all regarding how to resolve tensions between the First Amendment's religious liberty guarantees and civil rights laws that prohibit discrimination? (C3)

May not seem hostile for one party but hostile for another; have to draw a line with religion and free speech; 1. free expression clause- religious beliefs; 2. free speech clause; 3. civil rights laws- don't discriminate; did the court conceptualize fairly?

Would your answer change if the plaintiffs had asked for a message on the icing stating: "May God Bless this Marriage"? (C3)

Maybe because that is going against the baker's beliefs to support the marriage itself; but hard because all cakes can include artistic expression

Do you think that SHV theory or CSR theory should guide executives' business ethics? Or, do you think that both theories are bunk, and that some third approach should be used to govern business ethics? (C2)

Mix of both- still want to make money; regarding ethics refer to CSR!

Ethics

Moral principles and values applied to social behavior

Finally, proponents of SHV theory argue that share price is an ideal metric for measuring executive performance because it is immune from financial engineering/manipulation. Is this a sound assumption? CONSIDER: there has been a dramatic growth in the past decade of corporations using cash on hand to buy back shares, thus reducing the corporation's total number of shares and increasing the price of its remaining shares. (C2)

No- using cash more makes the data not as accurate.

Symbolic Speech

Nonverbal expressions of beliefs. Symbolic speech, which includes gestures, movements, and articles of clothing, is given substantial protection by the courts.

If so, does SHV theory allow the firm's policymakers to carefully account for such costs? Or, does it simply privilege what is easiest to quantify? (C4)

Not necessarily; hard to quantify company's value; SHV theory has no guidance on how to answer - hard question to answer in general; SHV weakness: ignore costs to come up with a figure for bottom line

SHV theory assumes that a company's shareholders or other investors are its "owners." Is that a sound assumption? Does a typical shareholder or investor in a large company act like a typical business owner? (C2)

Not sound; larger company shareholder has a say but not complete control; many shareholders in a company with a say

Defendant

One against whom a lawsuit is brought, or the accused person in a criminal proceeding.

Administrative Law Judge (ALJ)

One who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact.

According to the view that New Allied Manufacturing Corporation is a "citizen" New Allied is expected to:

Participate in bettering communities and society

Might imposing the MA program have certain costs for the firm that are difficult to quantify in precise terms? (C4)

Profit maximization

Take the perspective of a manager who is committed to shareholder value theory. From that perspective, is Ernst and Young's mandatory arbitration program justified? (C4)

Profit maximization makes it justified

Constitutional Law

The body of law derived from the US Constitution and the constitutions of the various states

Common Law

The body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.

Statutory Law

The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law)

Civil Law

The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters.

Criminal Law

The branch of law that defines and punishes wrongful actions committed against the public.

Standing to Sue

The legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit.

Complaint

The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.

Administrative Process

The procedure used by administrative agencies in fulfilling their three basic functions: rule making, enforcement, and adjudication.

Judicial Review

The process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch.

Commerce Clause

The provision in Article I, Section 8, of the U.S. Constitution that gives Congress the power to regulate interstate commerce.

Alternative Dispute Resolution (ADR)

The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of ADR.

Case Law

The rules of law announced in court decisions. Case law interprets statutes, regulations, constitutional provisions, and governs all areas not covered by statutory or administrative law

Arbitration

The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision. The decision may or may not be legally binding.

Deposition

The testimony of a party to a lawsuit or a witness taken under oath before a trial.

With respect to the "legal responsibility" element, the Supreme Court has spoken: Ernst and Young's program was consistent with the "letter" of the law. However, was it also consistent with the "spirit" of the law? (C4)

Their intentions for employees aren't amazing; spirit of the law can be interpreted differently by everyone

Adjudicate

To render a judicial decision. Adjudication is the trial-like proceeding in which an administrative law judge hears and resolves disputes involving an administrative agency's regulations.

A business firm may have to comply with the laws of any jurisdiction in which it actively targets customers

True

A deposition is sworn testimony by a party to a lawsuit or any witness

True

A state long-arm statute allows a court to exercise jurisdiction over out-of-state defendants based on activities that took place within the state

True

Acting in good faith gives a business firm a better chance of defending its actions in court

True

Compliance with the law does not necessarily fulfill all ethical obligations

True

Different standards for air quality apply to existing sources of pollution and major new sources

True

Special requirements must be met to discharge toxic chemicals into surface waters

True

The First Amendment protects corporate political speech

True

The Fourteenth Amendment guarantees a right to due process of law

True

When there is a direct conflict between a federal and a state law, the state law is rendered invalid, assuming that the federal government had authority under the constitution to enact the federal law in question

True

SHV theory also assumes that every "owner's" (i.e. investor's) foremost wish is to maximize the market value of his/her/its shares. Thus, an executive necessarily acts in accordance with the desires of his "principles" (i.e. investors) by taking actions to maximize share price. Are these assumptions sound? (C2)

Yes because they want to maximize profit/individual wealth

Counterclaim

a claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff

Arbitration Clause

a clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court

Cost-Benefit Analysis

a decision-making technique that involves weighing the costs of a given action against the benefits of that action

Verna makes a living by commercial fishing in a river allegedly polluted by Wall Paint Company. To bring a suit against Wall Paint on the group of private nuisance, Verna must allege that she suffers from:

a distinct harm separate from that affecting the general public

Default Judgement

a judgement entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim

Triple Bottom Line

a measure that includes a corporation's profits, its impact on people, and its impact on the planet

Discovery

a method by which the opposing parties obtain information from each other to prepare for trial

Mediation

a method of settling disputes outside the courts by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement

Uniform Law

a model law developed by the National Conference of Commissioners on Uniform State Laws for the states to consider enacting into statute

Motion for a Directed Verdict

a motion for the judge to take the decision out of the hands of the jury and to erect a verdict for the party making the motion on the ground that the other party has not produced sufficient evidence to support her or his claim

Motion for Summary Judgement

a motion requesting the court to enter a judgement without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute

Refuse Reuse and Disposal Center operates a recycling plant. Stan and other Refuse Reuse neighbors file a suit, alleging injuries from the plant. To succeed, they must show that the defendant failed to use reasonable care if the suit is based on:

a negligence theory

Motion to Dismiss

a pleading in which a defendant admits the facts as alleged by the plaintiff but asserts that the plaintiff's claim to state a cause of action has no basis in law

Most federal judges are appointed and eligible to serve until they die or retire. Is it appropriate for unelected judges to decide broad policy issues for society (as opposed to doing more modest tasks like interpreting laws passed by Congress)? (C5)

a problem but also a solution; super old right now so they can't interpret laws for our generation; however, for a nationwide solution it needs to go to the Supreme Court

Secondary Source of Law

a publication that summarizes or interprets the law, such as a legal encyclopedia, a legal treatise, or an article in a law review.

Federal Question

a question that pertains to the US Constitution, an act of Congress, or a treaty and provides a basis for federal jurisdiction in a case

Ethical Reasoning

a reasoning process in which an individual links his or her moral convictions or ethical standards to the situation at hand

Ordinance

a regulation enacted by a city or county legislative body that becomes part of that city's or county's statutory law

Rule of Four

a rule of the United States Supreme Court under which the court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ

Long Arm Statute

a state statute that permits a state to exercise jurisdiction over nonresident defendants

Federal Form of Government

a system of government in which the states form a union and the sovereign power is divided between the central government and the member states

E-Evidence

a type of evidence that consists of computer-generated or electronically recorded information

Categorical Imperative

an ethical guideline developed by Immanuel Kant under which an action is evaluated in terms of what would happen if everybody else in the same situation, or category, acted the same way

Outcome-Based Ethics

an ethical philosophy that focuses on the consequences of any given action in order to maximize benefits and minimize harms

Cyberlaw

an informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the internet

California enacts a statute to ban advertising in "bad taste." This statute would likely be held by a court to be:

an unconstitutional restriction of speech

Persuasive Authority

any legal authority or source of law that a court may look to for guidance but need not follow when making its decision

Binding Authority

any source of law that a court must follow when deciding a case

In 2015, Congress enacts the Act to Restrict Commercial Speech (ARCS). The ARCS will be considered valid if it directly advances a substantial government interest:

but goes no further than necessary to achieve its purpose

Carol flies a suit against Andy in a state trial court and loses. Carol:

can have her case reviewed by the state appellate court

Do you believe that the Business Roundtable's ostensible change of heart regarding SHV theory is sincere, or merely so much empty rhetoric? (C2)

closer to empty rhetoric because they want as much money as possible

Why do you think that Justice Kennedy's opinion ruled so narrowly? (C3)

conservative but strong on free speech/gay rights

Jack and Jill, citizens of Vermont, are involved in a case related to the adoption of their child. Over this case, the Vermont state courts have:

exclusive jurisdiction

Stakeholders

groups that are affected by corporate decisions. Stakeholders include employees, customers, creditors, suppliers, and the community in which the corporation oeprates

Concurrent Jurisdiction

jurisdiction that exists when two different courts have the power to hear a case

Procedural Law

law that establishes the methods of enforcing the rights established by substantive law

International Law

law that governs relations among nations

Fried Food, Inc., operates a commercial frying plant, discharging pollutants into the air. Greg reports the violations to the Environmental Protection Agency. Greg:

may be paid up to $10,000

A Montana state court can exercise jurisdiction over Endurance Insurance Corporation, an out-of-state defendant, if the defendant has:

minimum contacts with the state

Julia is a US citizen. She establishes a website that posts threatening messages about celebrities. Her website is:

not protected by the First Amendment

Plaintiff

one who initiates a lawsuit

Police Powers

powers possessed by the states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.

Answer

procedurally, a defendant's response to the plaintiff's complaint

Reply

procedurally, a plaintiff's response to a defendant's answer

Pleadings

statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case

BioChemical Disposal Corporation operates a hazardous waste storage facility. ChemCo Inc. buys BioChemical before it is discovered that the firm's disposal practices violated CERCLA. With respect to these violations, Superfund imposes on Chemo:

strict liability

Oklahoma enacts a law requiring all businesses in the state to donate 10 percent of their profits to Protestant churches that provide certain services to persons whose income is below the poverty level. PriceLess Stores files a suit to block the law's enforcement. The court would likely hold that this law violates:

the Establishment Clause

Professor Dan loses a trial in Oregon state court but appeals his case to the Oregon Court of Appeals. Which of the following is true of his appeal?

the appellate court judges are limited to considering the evidence presented at trial

Business Ethics

the application of moral principles and values in a business context

Jurisdiction

the authority of a court to hear and decide a specific case

Principle of Rights

the belief that human beings have certain fundamental rights

Administrative Law

the body of law created by administrative agencies in order to carry out their duties and responsibilities

Orin claims that a Pennsylvania state statute infringes on his "substantive due process" rights. This claim focuses on:

the content of the statute

Service of Process

the delivery of the complaint and summons to a defendant

Bill of Rights

the first ten amendments to the US Constitution

Venue

the geographic district in which a legal action is tried and from which the jury is selected

Corporate Social Responsibility (CSR)

the idea that corporations can and should act ethically and be accountable to society for their actions

Precision Engineering Inc., like other corporations, is subject to laws that are broad in their purpose and their scope. Compliance with these laws is not always sufficient to determine "right" behavior because:

the law does not codify all ethical requirements

Docket

the list of cases entered on a court's calendar and thus scheduled to be heard by the court

Moral Minimum

the minimum level of ethical behavior expected by society, which is usually defined as compliance with the law

Award

the monetary compensation given to a party at the end of a trial or other proceedings

Bob, research manager for CornAgri Products, Inc., applies utilitarian ethics to determine that an action is morally correct when it produces the greatest good for:

the most people

Sovereignty

the power of a state to do what is necessary to govern itself. Individual state sovereignty is determined by the US Constitution

Outsourcing

the practice by which a company hires an outside firm or individual to perform work rather than hiring employees to do it

Rulemaking

the process by which an administrative agency formally adopts a new regulation or amends an old one

Litigation

the process of resolving a dispute through the court system

Supremacy Clause

the provision in Article VI of the US Constitution that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land"

Establishment Clause

the provision in the First Amendment that prohibits the government from establishing any state-sponsored religion or enacting any law that promotes religion or favors one religion over another

Free Exercise Clause

the provision in the First Amendment that prohibits the government from interfering with people's religious practices or forms of worship

Equal Protection Clause

the provision in the Fourteenth Amendment that requires state governments to treat similarly situated individuals in a similar manner

Due Process Clause

the provisions in the Fifth and Fourteenth Amendments that guarantee that no person shall be deprived of life, liberty, or property without due process of law, State constitutions often include similar clauses

Remedy

the relief given to an innocent party to enforce a right or compensate for the violate of a right

Online Dispute Resolution (ODR)

the resolution of disputes with the assistance of organizations that offer dispute-resolution services via the Internet

During the trial phase of Fuel Corporation's suit against Gas Stations, Inc., their attorneys engage in void dire. This is:

the selection of jurors

Checks and Balances

the system under which the powers of the national government are divided among three separate branches- the executive, legislative, and judicial branches- each of which exercises a check on the actions of others

New Town Construction, Inc., wants to build a parking ramp to connect to its New Town Mall, both of which are on private land. For this action, an environmental impact statement is:

unnecessary

In making decisions for Smartt Investments, Rita uses a cost-benefit analysis. This is a part of:

utilitarian ethics

PriceLess Retail corporation specifies that its employees should not use social media to damage the company, harm another person's reputation, or violate company policies. An employee who violates these rules may be subject to discipline and could be fired. According to the National Labor Relations Board, This social media policy:

violates federal labor law

Do you think that baking a cake involves artistic expression? Does it involve "speech" in any way? (C3)

violating free speech by making him bake a cake against his beliefs; yes can put anything on a cake; for him context- would make a birthday cake but not a gay wedding cake

Much of law- especially constitutional law- is about drawing lines. If you concluded that the solo wedding photographer has a constitutional right to refuse to photograph a gay couple's wedding, but Masterpiece lacked a right to refuse to bake the cake, where do you draw the line? Can you articulate a principled distinction or standard for treating the two situations differently? (C3)

yes and no- photographer works for themselves; baker works for the bakery; view it as how do people view gay marriage?- if this was a race issue it would be illegal; photography/cakes are similar expression