Legal/Ethical Issues in Business: In Depth Study Guide
Legal/Ethical Issues in Business: In Depth Study Guide BUS 205
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This 8 page Study Guide was uploaded by Brittany Smith on Sunday September 18, 2016. The Study Guide belongs to BUS 205 at Colorado State University taught by Stephanie Hewitt Bowen in Fall 2016. Since its upload, it has received 94 views. For similar materials see Legal/Ethical Issues Business in Business at Colorado State University.
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Date Created: 09/18/16
Legal and Ethical Issues in Business Study Guide Help Important definitions to know: Grand Jury o 16 jurors determine whether there is a probable cause in order to issue and indictment Writ of Certiorari o Request that an appellate court hear an appeal (discretionary) Precedent o Theory of law where judges are obligated to follow precedents established in prior decisions Stare Decisis o “To stand on a decided case” Subject Matter o Specific court hears specific cases Personal (longarm statutes) o Does the court have the right to hear the case personally based on minimum contact and location? Minimum Contact o Enough personal jurisdiction by court for defendant In Rem Jurisdiction o “Jurisdiction over the thing” o Real property Diversity of Citizenship o Must have citizens of different states and the amount of the controversy is over $75,000 Federal Questions Jurisdiction o Any case based on, at least in part, on the U.S. Constitution, a federal law, or federal treaty Standing o Before a person can sue they must show they have suffered real harm or prospective harm Venue o Location Delegation Doctrine o 1) Rulemaking; 2) Enforcement; 3) Adjudication Subpoena o Ordering a person to attend court Subpoena Ducus Tecum o Ordering witness to bring specific documents Commerce o All business dealings that affect more than one state Substantial Effect Rule o Does the activity substantially affect interstate commerce? Police Power o Power to protect or promote health, safety, general welfare, public order, and morals Supremacy Clause o Federal law wins over state law o State law is allowed to be stricter than federal law Procedural Due Process o Any governmental action to take away a person’s life, liberty, or property must be given procedural safeguards to ensure fairness Substantive Due Process o A form of due process that says that certain rights are so fundamental that the government may not eliminate them o Focus on the content or substance of a law (not the government action) Equal Protection o The government must treat similarly situated individuals must be treated in the same manner Defamatory Speech o False speech that harms the reputation of another Fighting Words o Anything likely to incite violence Parties to a case: Plaintiff o The person bringing the lawsuit Defendant o The person getting sued or charged with a crime Steps of the Civil Process Fills out a complaint and a summons o These are two separate documents o Summons: plaintiff requires defendant to respond by a certain date Defendant files an answer o Admit and/or deny Motion for Judgment on the Pleadings (Plaintiff) OR Motion to Dismiss (defendant) Discovery o Asked to exchange information with each other o 4 types Interrogatories – written Depositions – oral Request for Production of documents Electronic Discovery Request for admissions Motion for Summary Judgment o Ruling on the pleadings o Questions whether the trial is necessary o No genuine/material question of fact o Most judges deny these due to Jury System Pretrial Disclosures o What is the evidence? Witnesses? Exhibits? Trial – Verdict Decree or Ruling Motion for Judgment Notwithstanding the Verdict o Defendant asks judge to not pay attention to jury decision Motion for a New Trial o Usually filed with the previous motion o 99.9% denied Appeal Steps for Criminal Process Ticket/Arrest/Booking 1 Appearance Bail/Bond Preliminary Hearing o DEA presents evidence to court and court determines if the evidence is valid Making sure that people aren’t being held for the wrong reasons o These are for the most serious cases Arraignment/Plea o Are you pleading guilty or not guilty? Guilty – goes straight to sentencing Not Guilty – goes to trial first Trial Sentence Post Conviction Relief o Asking trial court for new trial or to overturn the verdict Appeal Equitable Remedies Eye for an eye o Criminal or Civil Legal Remedies Based off money or punishment o Criminal Case State Court Systems Start at: 1. Trial Court Limited jurisdiction Only specific types of cases they are allowed to hear General jurisdiction Can hear everything else Divorce Felonies Probate Civil 2. Appellate Court They only look at the Record Pleadings Transcript Exhibits 3. State Supreme Court Writ of Certiorari Federal Court Systems Start at: 1. Trial court 2. U.S. Court of Appeals 3. U.S. Supreme Court Writ of Certiorari Sources of American Law Constitution o Legal framework Legislative Statues o Uniform laws, creates Administrative Agencies Executive Orders Treaties o International law Common Law/Case Law Jurisdiction Subject Matter Personal Longarm Statutes o Minimum Contacts In Rem Federal o Diversity of Citizenship Federal Question Judicial Review Marbury v. Madison The Judicial branch interprets the law Roles of an Attorney Advisor o Biggest role Drafter o Drafts leases, contracts, notes, etc. Negotiator Advocate o Representative of client Attorney Client Privilege Protected communications between attorney and client Only a client can waive disclosure to information Creation and Process of Administrative Agencies By congress through legislation o Define problem o Create agency through legislation o Define agency powers Delegation Doctrine o Rulemaking (legislative) o Enforcement (executive) o Adjudication (judicial) Rulemaking Process Notice of proposed rulemaking o Must notice what the rule is, who has the authority for making the rule, and when and where the hearing is held o Federal Register Comment Period o Usually written o Allows expression of views, response to significant comments, modification Final Rule o Binding as if legislation Investigation Issue a Subpoena Issue a Subpoena Ducus Tecum Search Warrants o Need a warrant to search businesses except highly regulated businesses such as alcohol, drugs, or nuclear power Inspection and Tests o Gather information to prove violation The process of Formal Administrative Adjudication Complaint Answer Hearing before Administrative Law Judge (ALJ) o Federal ALJ Appointed by executive branch Doesn’t have to be confirmed Payed by agency Supposed ot be nonbias Similar to regular court judges Duties set out in ALJ statute Vigorous testing Merit based Issue an order of ALJ o Ex. Cease and desist order Appeal to Governing Board of Agency Final Agency Order Appropriate Court for Review of Agency Decision Court order Commerce Clause Article 1 Section 8 Commerce Substantial Effect Rule Police Power Supremacy Clause Bill of Rights (Amendment 110 as follows) o Freedom of Religion, Speech, Assembly, Press o Right to bare arms o Soldiers cannot occupy home without consent o Freedom from unreasonable search and seizure o Right to due process of law o Right to a speedy and public trial o Right to trial by jury o Prohibits cruel and unusual punishment o Rights not specifically granted still belong to the people o Any powers that aren’t given to the federal government belongs to the state Procedural and Substantive Due Process Life, liberty, and property Strict Scrutiny o If the law limits fundamental rights, then its deemed unconstitutional UNLESS the government can show that the law furthers a compelling state interest National Security Rational Basis Test o If the law want to regulate something else, then it’s constitutional if it relates to a legitimate government interest Equal Protection Strict Scrutiny o Racial, ethnicity, or fundamental rights – is the classification necessary to promote a compelling state interest and is specific to further that interest? Intermediate Scrutiny o Gender – important government objective? Rational Basis o Economic and social issues – related to legitimate government interest? Central Hudson Test A law or regulation limiting lawful and truthful commercial speech will be deemed constitutional (i.e. the government may regulate commercial speech) if the law or regulations: o Seeks to implement a substantial government interest; o Directly advances that interest; and o Goes no further than to accomplish that objective Must meet all 4 of these requirements Unprotected Speech Defamatory Speech Lewd and Obscene o “You’ll know it when you see it” – definition by Supreme Court of obscene Fighting Words
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