Business Law and ethics final

amicus brief

"friend of the court" brief; written arguments submitted by 3rd parties not affiliated with the case but interested in the broader scale of the dispute- nonprofits, public interest groups

moral relativism and ethics

"situational ethics;" establishes ethical standards according to the situation in which the dilemma is faced, the grey areas, depends on circumstances

the wall street journal model

(1) Am I in compliance with the law? (2) What contribution does this choice of action make to the company, the shareholders, the community, and others? (3) What are the short- and long-term consequences of this decision?

the quality of precedent

- The supreme court's rulings bind all lesser appellate courts - Opinions from the same appellate courts are binding - Opinion from sister appellate courts are persuasive but not binding

Federal Sentencing Commission guidelines to create an ethical culture in a company

- a code of ethics- training for employees in the code and in ethics- a means for employees to report misconduct anonymously- follow up on reports employees make on misconduct- action by the board, including follow-up and monitoring, on complaints and reports made by employees- self-reporting and investigation of legal and ethical issues- sanctions and terminations for those within the company who violate the law and company rules, including officers- a high ranking officer, with the ability to communicate with the CEO and board, who is responsible for the code of ethics and ethics training in the company

four schools of thought on ethical behavior

- inherence- enlightened self-interest- the invisible hand- social responsibility

categories of ethical dilemmas

1. Taking things that don't belong to you 2. Saying things you know are not true 3. Giving or allowing false impressions 4. Buying influence or engaging in conflict of interest 5. Hiding or divulging information 6. Taking unfair advantages 7. Committing acts of personal decadence 8. Perpetrating interpersonal abuse 9. Permitting organizational abuse 10. Violating rules 11. Condoning unethical actions 12. Balancing ethical dilemmas

arbitration procedures

1. The parties submit names and a mutually agreeable arbitrator or panel is appointed. 2. A hearing date is set at a mutually agreeable time. 3. The parties don't need to have lawyers but they have the right to use one under AAA. 4. After the close of the hearing the arbitrator has 30 days to make a decision.

characteristics of law

1. flexibility/adapting to changing circumstances, 2. consistency-law should be predictable, 3. pervasiveness-comprehensive and all-encompassing

5 purposes of law

1. to promote fairness and equality, 2. to keep order and community standards, 3. to honor expectations, 4. to influence conduct/direct desired behavior, 5. to act as the "great compromiser"

dissenting opinion

A statement written by a justice who disagrees with the majority opinion, presenting his or her opinion; the other side of the story, why they think they got it wrong

the protection of individuals and relationships

Holmes's theory of law that our interactions with each other constitute the foundation of law; the law is what keeps the peach among us

blanchard and peale

Is it legal? Is it balanced? How does it make me feel?

attorney client privilege

Keeps the relationship confidential and assures that others have limited access to lawyer-client conversations, confidential except when client admits something about future crimes, depends on who the client is; if a company is the client, an individual might not have privilege

stare decisis

Let the decision stand; decisions are based on precedents from previous cases

state administrative law

State governments have administrative agencies with the power to pass regulations dealing with the statutes and powers given by the state legislatures

volunteer jurisdiction

a court has jurisdiction over a person who agrees to be subject to that court

private laws (as a source)

a final source of written law and are found, for example, in contracts and landlord regulations; enforceable provided they are not inconsistent with rights and protections afforded under the other sources of law

leadership's role in ethical choices

a leader sees a problem before it becomes a legal issue or liability and fixes it, thus saving company time and money

nonbinding arbitration

a preliminary step to litigation, if one of the parties is not satisfied with the result in the arbitration, the case may still be litigated, this can be part of a contract, it can facilitate a settlement

oral argument

a summary of the points that have been made in each party's brief, rarely delivered in its entirety or planned order bc judges interrupt and ask questions

criminal law

a wrong against society, prescribes individual behaviors to comply with societal standards, fines and imprisonment

reversible error

alleged error made by trial judge that might have affected the outcome of the case of influenced the decision made ex: the refusal to allow evidence to be admitted that should have been admitted, the refusal to allow a particular witness to testify, misapplication of the law

types of ADR

arbitration, mediation, medarb

binding arbitration

arbitrator's award is final and binding on both parties, federal law allows a binding arbitration award to be set aside only in limited situations:1. the award resulted from corruption, fraud, or undue influence2. partiality or corruption occurred among the arbitrators3. the arbitrators were guilty of misconduct, which prejudiced the rights of one of the parties4. the arbitrators exceeded their powers

concurring opinion

at the supreme court level: when a subset of the majority agrees on the outcome, but for differing reasons, written explanation of their argument for reaching a different outcome, can have more force than majority opinion in terms of precedent

uniform international laws

attempt to introduce uniformity in international contract law; Contracts for the International Sale of Goods (CISG)- developed by the United Nations-Similar To Article 2 of the UniformCommercial Code (UCC)- has been widely adopted and allows businesses to opt-in or out of its application in adopting countries- has provisions on contract formations, performance, and damages

in personam jurisdiction

authority over the person

tests for resolutions

blanchard and peale, the front-page-of-the-newspaper test, laura nash and perspective, the wall street journal model - the 3 Cs, the "golden rule"

the invisible hand

business ought to serve the larger society, and it does this best when it serves the shareholders only, must manage company ethically to serve larger society by doing what's best for shareholder value moral question: larger society policy question: shareholders only

medarb

combination of mediation and arbitration: starts as mediation but if unable to reach a settlement, the mediator becomes the arbitrator, all in the same process

pleadings

complaint by the plaintiff, definite enough in description for defendant to understand why suit was brought about

class action lawsuits

complaint is filed by a group of plaintiffs who have same cause of action against one defendant, born from idea that expense for individual plaintiffs would be too high, so they lump them together

congressional law

congress is responsible for statutory law at the federal level, the laws passed by congress become part of the United States Code (USC)

types of statutory law (federal)

congressional law, executive orders, federal administrative regulations

sources of law

constitutional law, statutory law (federal), statutory law (state), local laws (cities, counties, townships), private laws, court decisions

adhesion contracts

contracts written by one side and offered as a take it or leave it ex: car rental agreements, employee contracts

judges

control the proceedings in a case and, in some instances, the outcome; trial judges - control the trial of a case, from presiding over the selection of a jury to ruling on evidence questions, appellate judges; review the work of trial court judges, do not actually hear evidence

the purpose of precedent

conveys predictability, consistency, reliability

the process of judicial review

court reviews a transcript of the trial along with evidence presented at trial to determine whether an error was made, each party presents an appellate brief, an oral argument by the attorneys, a decision is rendered

counterclaim

defendant countersues the plaintiff, claims they are in the wrong

structure of the federal district court systems

each state has at least one federal judicial district; number of federal districts in each state is determined by the state's population, the number of courts and judges in each district is determined by the district's population and caseload; there are currently 94 federal district courts

legislative law and state codes

each state has its own code containing the laws passed by its legislature. State codes contain the states' criminal laws, laws for incorporation, laws governing partnerships, and contract laws.

the tone at the top and an ethical culture

employees are convinced that ethics is important when they see those at the top comply with all of the provisions in the company code of ethics; they see the right tone at the to when ethical employees are rewarded and unethical conduct is punished; those at the top must "walk the talk" about ethics

regulation/litigation phase

government steps in

US supreme court

hears appeals from circuit courts; no right to automatically appeal straight to supreme court; US supreme court is one more appellate court that is part of the federal system with slightly different procedures and jurisdictions of other appellate courts

common law

how the courts use the judicial decisions of the past in making their judgments to provide the consistency and constancy of the law, developed during middle ages, stare decisis

laura nash and perspective

how would i view the issue if i stood on the other side of the fence?am i able to discuss my decision with my family, friends, and those closest to me?what am i trying to accomplish with my decision?will i feel as comfortable about my decision over time as i do today?

local laws of cities, counties, and townships

in addition to federal and state statutes, local governments can pass ordinances or statutes within their areas or of power or control

jurisdiction by residence

individuals are present in a state if they have a residence in that state, corporations are residents of the states in which they are incorporated or of any state in which it has a business office with employees

latency phase

industry is aware of a problem

the front page of the newspaper test

is this something you'd be proud to see on the front page?

in rem jurisdiction

jurisdiction through property ownership; a party who owns real property in a state is subject to the jurisdiction of that state's courts for litigation related to that property, gives the court authority over the person because the person owns a thing in the state

making choices before liability and regulation

latency phase, awareness phase, activism phase, regulation/litigation

private law

law developed between two individuals, between individuals and entities, or between two entities (voluntary)

public law

law imposed on individuals by some authorized governing body; codified law; statutes

constitutional law

law that involves the interpretation and application of the U.S. Constitution and state constitutions, tend to protect general rights, provide a framework for all other forms of law

executive orders

laws of the executive branch of the federal government, deal with those matters under the direct control of that branch

Uniform Laws

laws passed by states which are drafted by groups of businesspeople, scholars, and lawyers in an effort to make interstate business less complicated

substantive law

laws that give rules, rights, and responsibilities, what we can/can't do

statutory law

laws written up, passed, and codified/set in stone by some governmental body, the formalization/written representation of common law

name changes on appeal

lawyers and parties "stay in the game" even after case is appealed, however the names of the parties do change on appeal

types of statutory law (State)

legislative law and state codes, state administrative law

enlightened self interest

manager is responsible to the shareholders but serves them best by being responsive to the larger society moral question: shareholders only policy question: larger society

inherence

managers answer only to shareholders and act only with shareholders interest in mind moral question: shareholders only policy question: shareholders only

activism phase

members of the public ask for either voluntary or regulatory reform; if not voluntary, those affected may sue or lobby for reform or both; cost of compliance increases

alternative dispute resolution (ADR)

offers parties alternative means of resolving their differences outside actual courtroom litigation and the costly preparation for it

arbitration

oldest form of ADR, has become as costly as trial, dispute is brought to an arbitrator, three types: binding, non-binding, mandatory

the interpretation of precedent

outcome states broadly applicable rule; rule of law and dicta

statute of limitation

period of time in which complaint must be brought to court, for personal injuries; two years, for contracts; four years

steps of litigation

pleadings, complaint (petition), the summons, the answer

awareness phase

press reports on an issue and raises questions, options start to narrow

rule of law

principle that the law applies to everyone, even those who govern; technically the precedential part, given at the end of the case decision after a full discussion of reasoning and precedent

procedural law

provide the means for enforcing substantive rights, process of enforcing the rules in courts, trials, depositions

jurisdiction by presence in the state

residence, "minimum contacts," and long-arm statues

setting precedent

review opinions of higher appellate courts; compare/contrast to older decisions, review own past opinions/decisions, review decisions of sister circuit courts

the summons

second step in a lawsuit in which the defendant is served with a copy of the complaint and a summons, which is a legal document that tells the defendant of the suit and explains the defendant's rights under the law; delivered by an officer of the court or by private firms licensed as process servers

dicta

serves as reasoning to limit the rule of law; dictate a future case by adding fact, the "why" behind the decision

when precedent is not followed

sometimes appellate courts choose not to follow their own precedent:1. distinguishable facts; the context of the facts in one case is different enough from those in other cases that the precedent can not be applied2. changing societal values and perspectives3. technological advancement not envisioned when the precedent was set4. utilitarian considerations: upholding precedent would do more harm than good

the state court system

state trial courts, state appellate courts, state supreme courts

jursidiction

the authority to speak on the law

jurisdiction by minimum contacts

the courts look at the extent of involvement in the state as a standard for fairness; physical space not required, can be driving in a state, shipping products or advertising products or services in a state; must have some contact with the state

state supreme court

the courts of last resort for the majority of state laws, similar in their function and design to the US supreme court, don't hear every case because the right of appeal is not automatic, have some jurisdiction in deciding which cases they will hear, also act as trial courts in certain types of cases and so are also courts of origin as well as appellate jurisdiction

the answer

the defendant's response to the complaint, their pleading; they either admit, deny, or assert lack of knowledge, they may default or counterclaim

federal administrative regulations

the federal government has administrative agencies that serve the functions of promulgation of rules (called regulations) for developing specifics such as forms and time requirements for carrying out the legislative enactments of congress, in addition to enforcing both the laws and regulations

federal district court

the general trial court of the federal system; can hear three types of cases: those in which the US is a party, those that involve a federal question, and those that involve diversity of citizenship

defendant/respondent

the party against whom a lawsuit is brought, plaintiff seeks recovery from them and they are named in the suit as having committed some violation of the law or the rights of the plaintiff

plaintiff

the party who initiates a lawsuit and are seeking some type of recovery (the suer)

subject matter jurisdiction

the power of a court to hear a particular type of case

social responisbility

the role of the business is to serve the larger society by responding to society's needs as first priority moral question: larger society policy question: larger society

natural law

the theory that individuals hold certain rights and cannot be infringed/taken away/limited by the law

social contract

the theory that the law binds each of us to comply with its rules as they are set by those in power

positive law

theory that ethical standards reflect positive, or codified, law

long arm statutes

these statues give courts the power to extend their "arms of jurisdiction" into other states, generally cover businesses with offices in the state, businesses shipping products into the state, and businesses that cause a tort to be committed in that state

uniform commercial code (UCC)

under statutory law at the state level, governs contacts for the sale of goods, commercial paper, security interests, and other types of commercial transactions

mediation

voluntary process in which both parties meet with a neutral mediator who listens to each side explain its position and to help them arrive at a mutually agreeable decision, completely confidential: omissions made during mediation cannot be used if dispute ends up going to court, not binding unless agreed upon by both parties to be bound by decision

mandatory arbitration

when a contract requires arbitration, the parties cannot choose court action first, happens with small dollar disputes

court decisions

when ambiguities or omissions occur in statutory language, courts provide interpretation or clarification of the law when disputing parties bring suit

appellate brief

written submission of the arguments of why the trial court decision or procedures were correct/incorrect, will cite published opinion (precedent), comparing (analogizing)/contrasting with old cases

civil law

wrong against another person/persons, exists to settle affairs between individuals/entities, monetary compensation , regulating harms and carrying damage remedies