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174 Cards in this Set

  • Front
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Relevant areas of business law applicable to human resource management

agency law, contracts, employment and labor law, employment discrimination

regulates disputes between private individuals or groups

Private Law

regulates disputes between private individuals and their government or against society

Public Law

Private Law example

Dispute between a tenant and landlord

Public Law example

Dumping in violation of state or federal law

Delineates rights and responsibilities between a person or persons and their government

Civil law

Regulates incidents in which someone commits an act against the public as a whole

Criminal Law

What is the Hierarchy of Laws in the country

U.S. Constitution, Federal Statutes, State Constitution, State Statutes, Common Law

Collection of legal interpretations made by judges and are law unless revealed by new statutory law

Common Law

Past decisions in similar cases that guide later decisions thereby providing greater stability and predictability to the law

Case Law Precedent

When courts rely on precedent, they are obeying this principle (standing by their decision)

Stare Decisis

Rulings made in higher courts become ____ for lower courts

binding precedent

summaries of common law rules in a particular area of the law that has been enacted in most states

Restatements of the law

School of Jurisprudence that describes certain ethical laws and principles believed to be morally right and above the laws devised by humans

Natural Law

School of Jurisprudence that must abide by the duly authorized law, Law is distinct from morality

Legal Positivism

School of Jurisprudence that follows a tradition or custom to shape the law.

Historical school

School of Jurisprudence that is closely related to stare decisis

Historical school

School of Jurisprudence that judges consider more than just law, and should consider factors such as social and economic conditions

Legal realism

School of Jurisprudence that the law should yield more benefits than its costs, if resources are saved that can be used to obtain more goods and services

Cost-Benefit Analysis

Application to special problems and opportunities experienced by business people

Business Ethics

Decisions in choosing a method of production, Decisions regarding how to compete with competing firms, and social responsibilities of the firm

Business Ethics

What is the W in WPH Framework and give examples

W - Who the decision impacts
Stakeholders such as employees/customers, management, community where the firm operates, and future generations

Groups of people in a firm affected by the firms decisions


What is the P in WPH Framework and what is based on

Purpose of the decision and based on values

The basic unit of business ethics, positive notions that capture our sense of what is good or desirable


What does the H in WPH framework stand for?

H - How to make a decision (guidelines)

Do unto others as you would have them to do to you and what letter of the WPH framework does it deal with

Golden Rule
The H in WPH framework

If the public knew about this decision, how would you decideand what letter of the WPH framework does it deal with

Public Disclosure

The H in WPH framework

What would the world be like were decision was made by everyone else and what letter of the WPH framework does it deal with

Universalization Test

The H in WPH framework

The theory of ethics that denies existence of objective standards and individuals must evaluate actions based on what they feel is best for themselves

Ethical Realism

The theory of ethics that individuals must defer to a set of rules to guide them through the ethical decision making process


The theory of ethics that requires inquiry into the consequence of a decision when addressing ethical dilemmas


The theory of ethics that managers should take actions that provide the greatest good after having subtracted harm associated with the action in question


The theory of ethics that whether a business decision is ethical depends on how the decision affects all those involved

Principle of right

The theory of ethics that development of virtues or positive character traits such as courage, justice, and truthfulness, is the basis for morality

Virtue ethics

Process that selects the jurors who will decide the case as well as 2 or three alternative jurors

Voir Dire

Allow a party to challenge a certain number of potential jurors without giving a reason

Peremptory Challenges

What is the exception to Peremptory challenges

Party can't use solely race or gender

The court that has original jurisdiction, have power to hear and decides cases when they first enter the legal system

Trial Courts

The court that reviews previous judicial decisions to determine whether the trial courts erred in decisions. Deal with the Question of Law

Appellate courts

Judges use this concerning application of a law

Question of Law

Judges use this to question about the events of the case

Question of fact

Type of Jurisdiction that Federal courts have over claims arising under federal statues

Exclusive Jurisdiction

Type of Jurisdiction that both state and federal courts have jurisdiction over a case

Concurrent Federal Jurisdiction

What is a way to get into federal court

Diversity of citizenship or Diversity Jurisidiction

Type of Jurisdiction that courts have the power to hear certain types of cases (like criminal, probate, or bankruptcy)

Subject matter Jurisdiction

Type of Jurisdiction that is over a certain thing (property of the state)

In rem Jurisdiction

Type of Jurisdiction thats over a defendants property unrelated to the plaintiffs claims

Quasi in rem jurisdiction (attachment jurisdiction)

What are the 2 elements of Diversity Jurisdiction

1) Plaintiff and defendant reside in different states or countries
2) Controversy is over 75k

How is diversity determined

The courts use the party's residence

Where are Corporations residents of

The state they were incorporated or its principal place of business

notifies the defendant of a lawsuit and explains how and when to respond to a complaint


Specifies factual and legal basis for a lawsuit


Procedure by which the complaint and summons are served upon the defendant

Service of process

Judgement in favor of the plaintiff when the defendant fails to answer the complaint and plaintiff complaint alleges facts that would support

Default judgement

Pretrail motion that requests the court to consider all the facts in pleadings to be true and to apply law to the facts. The court grants if it finds that the only reasonable decision is in factor of the moving party

Motion for judgement on pleadings

Pretrial motion that asserts no factual disputes exist and if apply law to undisputed facts only reasonable decision would factor of moving party

Motion for summary judgement

Difference between Motion of Judgement on pleadings and Motion of summary Judgement

Motion of summary judgement's moving party may use affidavits, relevant documents, depositions transcripts in support (extrinsic evidence is considered)

How a party gathers information


Type of discovery that has written questions that is answered under oath


Type of discovery that forces opposing part to turn over certain info unless privileged

Request to produce documents

Type of discovery that attorneys examine a witness under oath, and a court reporter records every word the witness speaks


refers to resolution of legal disputes through methods other than litigation. Also is less expensive and less time consuming then litigation

Alternative Dispute Resolution

Examples of Alternative Dispute Resolutions

1) Negotiation

2) Mediation

3) Arbitration

4) Summary jury trials

5) Mini trials

6) Early neutral case evaluations

7) private trials

Alternative Dispute Resolution that resolves dispute by a neutral 3rd party outside of judicial setting. Its a voluntary process in that parties have contractual agreement to ____ disputes


An agreement that stipulates how ____ is selected and admistrated

Arbitration agreement

What is an Arbitration hearing

It's similar to trial, both parties represent themselves or have legal counsel present their case to a neutral 3rd party

What is an Arbitration award and how many days does it take to make decision

Award for winning the arbitration does not need to be monetary. Within 30 days after hearing

Advantages of Arbitration

More efficient and less expensive
More control over process by partys and get to choose the arbitrator
Arbitrator has greater flexibility with judgement then a judge

Disadvantages of Arbitration

Injustice more likely to occur since the appeal and award is very difficult to fight
Giving up right to litigate

The more that businesses use it the more its similar to litigation

Disputes are hidden in process from the public

A method of securing Arbitration is a provision in contract that mandates disputes arising under contract settled by arbitration

Binding Arbitration clause

A method of securing Arbitration is in a contract providing specific dispute resolved through Arbitration

Submission agreement

In an Arbitration agreement when the terms are manifestly unfair or oppressive and are dictated by a dominant party so they aren't enforced

Unconscionability contract provision

Most popular form of an alternate dispute resolution


Type of alternate dispute resolution that disputing parties select a neutral 3rd party to help facilitate communication and suggest ways to resolve


If Mediation is successful they enter in a ____

Mediation agreement

Program where courts encourage or mandate use before bringing to trial

Court-Annexed Alternative Dispute Resolution

Principle that states that the 10th amendment says all powers not given to Federal or states are reserved to the states. Thus federal legislation affecting business must be based on express constitutional authority


Clause that says any state or local law that directly conflicts with the constitution or federal laws or treaties is void

Supremacy Clause

Some areas both state and federal governments have the power to regulate the same subject matter

Concurrent authority

If the Federal government regulates an area of law exclusively any state law that contradicts will be deemed unconstitutional

Federal preemption

Congress has the power to regulate commerce with foreign nations, among several states, and Indian tribes. Also what article and section is this in?

Commerce clause Article 1 section 8

The first 10 amendments in the consistitution, that affects government regulations of business and prohibits the federal government from infringing on individuals rights is known as ____

Bill of rights

Which amendment is Freedom of speech and of the press (includes gestures and forms of expression)

1st amendment

1st amendment is not a ______. What does that include?

Absolute right. Cant yell fire, make false statements of fact injurious to anothers reputation, use obscenity, no fighting words, or defamatory words

Which amendment is the Right to keep and bear arms

2nd amendment

Which amendment Prohibits soldiers to reside in a private property without the owners consent

3rd amendment

Which amendment Prohibits government from conducting unreasonable search of individuals and seizing their property to use as evidence against them

4th amendment

Court order that authorizes law enforcement agents to search for and seize items specifically described in the ______

Search warrent

What do you need in order to get a search warrent

Probable cause

Which amendment protects against self incrimination. Also protects against double jeopardy

5th amendment

Clause that says the government cant deprive a person of life, liberty, or property without _____ of the law. Requires government to use fair procedures, entitles notice of legal action, and opportunity to be heard and impartial tribunal

Due Process Clause

Process that gives basic fairness of laws that deprive an individual of life liberty or property

Substantive due process

Which amendment extends the bill of rights to the statues thus both federal and state governments cant deprive individuals of their freedoms

14th amendment

Which amendment guarantees rights to a speedy and public criminal trial with the assistance of counsel and to cross examine witnesses and to solicit favorable testimony also guarantee the right to trial bu jury in criminal cases

6th amendment

Which amendment prohibits excessive bails and fines as well as cruel and unusual punishment

8th amendment

Which amendment guarantees the right to trial by jury in a civil case involving at least $20

7th amendment

Which amendment says people have rights in addition to ones specified in the constitution

9th amendment

Which amendment gives powers that the federal government doesn't have, the states and people have

10th amendment

Equal protection clause is under which amendment

14th amendment

What classification under the equal protection clause prevents individuals from exercising fundamental right. It involves suspect classification based on race, national origin, or citizenship

Strict Scrutiny

What classification under the equal protection clause of law classification is based on gender or legitimacy of children

Intermediate Scrutiny

What classification under the equal protection clause when classifications includes all other matters

Rational Basis

Which 2 elements must the government demonstrate of a crime in court

Actus Reus and Mens rea
Which means a guilty act and a guilty mind

What kind of crime is an exception to having to prove mens rea

Strict liability crimes

A crime that is liability without fault, applies to actions that regardless are specially prohibited

Strict Liability crimes

Example of Strict Liabilities

Selling alcohol or cigs to a minor

Classification of a serious crime, punishable by imprisonment for more than a year or death


Classification of a less serious crime punishable by fines or imprisonment for less than 1 year


Classification of minor misdemeanor, punishable by less than 6 months or small fine

Petty offenses

Example of a petty offense

Violating a Building code

Crime that is a forceful and unlawful taking of personal property


Crime unlawfully entering a building with intent to commit a felony


Crime that is secretive and wrongful taking and carrying away someones personal property with intent to permanently deprive


Crime that is illegally obtaining property by false representations of existing fact with knowledge of falsity and intent to defraud

False Pretenses

Crime that is fraudulent making or altering writings that changes legal rights and liabilities of another


Crime that is the wrongful conversion of another property by one lawfully in possession of it


Explain the Miranda trial and who was it against

Miranda V. Arizona
Ernesto Miranda was arrested for kidnapping and rape. 2 police officers obtain signed confession. Officers didn't advise right of attorney but sentenced to 20 - 30 years. Appealed to supreme court.

The 5th amendment does not apply to _____


Rule that holds that all evidence obtained in violation of 4th, 5th, and 6th amendments are not admissible in trial because its considered the "fruit of the poisonous tree"

Exclusionary Rule

Tool to fight business crime that prevents legitimate business from servings as covers for racketeering

Racketeering Influenced and Corrupt organizations act (RICO)

Tool to fight business crime since private citizens use it to sue employers for fraud against the government and what year

False Claims Act (1986)

Tool to fight business crime that enacted due to business scandals like Enron, Worldcom, Global Crossing, and Arthur Anderson and what year

Sarbanes - Oxley Act (2002)

Type of tort that occurs when defendant acts with the intention of engaging in a specific act that results in injury. Does not need to prove liability or intent to harm

Intentional Tort

Type of tort that the defendant fails to act in a responsible way and subjects other people to unreasonable risk of harm

Negligent Tort

Type of tort that the defendant takes action in something inherently dangerous and cant be undertaken safely

Strict Liability Tort

What does an intentional tort assume

People intend normal consequences for their actions

Tort against persons, property, or economic interest

Intentional Tort

Type of intentional tort that places fear or apprehension of an immediate offensive bodily contact. Words alone without action is insufficent


Type of intentional tort that is intentional unwanted bodily contact


Defense for Battery is

Self defense, consent, defense of others, or defense of property

Type of intentional tort that is intentional publication or telling a 3rd party a false statement harmful to someones reputaton


Defense for Defamation is

Truth, absolute privilege, and conditional privilege

What is Absolute Privilege

testifying in court, trial, or congressional debate

What is Conditional Privilege

No liability unless statement made with actual malice or knowledge of falsity

Type of intentional tort that when confined or restricted against free will for appreciable period of time

False Imprisonment

Exception to an intentional tort that retailers and security guards may reasonably by question suspected shoplifters and detain for reasonable time

Shopkeepers Privilege

Damages awarded for torts that put the plaintiff in position of tort didn't occur. Attorney fees not included but pain and suffering damages are

Compensatory Damages

Damages awarded for torts that is the minimal amount that signifies defendants behavior was wrongful but caused no harm (around 1 - 5 dollars) But may have to pay attorney fees

Nominal Damages

Damages awarded for torts that is to punish the defendant and deter such conduct again based on severity and wealth

Punitive Damages

4 Elements of Negligence

1) Duty

2) Breach of duty

3) Causation

4) Damages

Element of Negligence that is the standard care of a reasonable person


Element of Negligence that you must prove actual cause (cause in fact) and proximate cauation


Element of Negligence that compensable loss suffered by plaintiff


Cant be avoided not considered Negligence

Unfortunate accident

Measurement of the way members of society expect an individual to act in given situation

Reasonable person standard

Tort law says you do not have to rescue strangers even if its easily accomplished

No duty to rescue

2 Exceptions to duty to rescue

Special relationship (parent/child, student/teacher, husband/wife)
If you're a tortfeaser

The person committing the tort


What is actual cause

(cause in fact) determination that the defedants breach of duty resulted directly with the injury

"but - for" causation

What is proximate cause

(legal cause) matter of public policy a defendant may be held liable for consequences

Special plaintiff doctrines/statues that permits judge or jury to infer that the defendant negligence was the cause of the plaintiffs harm when no direct evidence of defendants lack of due care

Res Ipsa Loquitur

Special plaintiff doctrines/statues that allows bartenders and bar owners liable for injuries caused by intoxicated people at the bar

Dram Shop Acts

Type of Negligence that allows the defendant to entirely escape liability if plaintiff contributed to the harm


Type of Negligence that court determines the percentage of fault of the defendant

Pure comparative Negligence

Type of Negligence that defendant must be more then 50% at fault

Modified comparative negligence

Allows defendant to escape liability by establishing plaintiff was fully aware of harm that could possibly occur from the activity engaged

Assumption of risk

Persons engaged in activities that are dangerous that no amount of due care makes safe

Strict Liability

Defense for Negligence that people in peril receive voluntary aid from others cannot hold liable for negligence

Good Samaritan statutes

Defense for Negligence that is an unforeseeable event that happens interrupting defendants breach of duty and damages plaintiff suffered

Superseding cause

Distinctive word, design, picture, or arrangement used with a product that helps consumers identify


Example of a trademark

Nike Logo, 7-11 color scheme, Lego sign

How is a trademark protected and under what act and year

Must register with the U.S. patent and trademark office under the Lanham Act of 1947

1st renewal of a trademark must be done between____ and every ___ after that

5th and 6th year and every 10 years after that (unless before 1990 then its 20 years)

Strength of a trademark that has no protection and refers to the type of product


Strength of a trademark that has a single characteristic and must obtain a secondary meaning to obtain protection


Strength of a trademark that the 2nd strongest


Strength of a trademark that has the most protection

Arbitrary or Fanciful

If infringed on a trademark the courts will consider what

1) Degree of similarity between marks

2) Evidence of actual confusion

3) Users good faith

4) Quality of users product

5) Sophistication of purchasers

Protects fixed form of expression of original creative or idea


Doctrine that provides copyrighted work for criticism, comment, news, reporting, teaching, scholarship, and research (most common defense in allegation)

Fair use doctrine

Protects product, process, invention, machine, or plant produced with asexual reproduction. Must meet criteria of novel, useful, and nonobvious


Patent allows user to be paid royalties if they let someone else use under which act

Lanham act 1947

When can you sue someone for a trade secret

If you can prove there was a trade secret to begin with and that the defendant acquired through unlawful means and without permission