Management 260 Midterm Exam Study Guide
Management 260 Midterm Exam Study Guide Management 260
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This 8 page Study Guide was uploaded by Eunji Cho on Tuesday March 1, 2016. The Study Guide belongs to Management 260 at University of Massachusetts taught by Michael Malkovich in Spring 2016. Since its upload, it has received 205 views. For similar materials see Introduction to Law in Business, management at University of Massachusetts.
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Date Created: 03/01/16
UMass Amherst Management 260 Professor Malkovich Midterm Exam Study guide By Eunji Cho Chapter 1: Business and its Legal Environment - Sources of law • Common law: Judge-made law, including interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies • Statutory law (legislation): Laws created by federal, state and local legislatures and governing bodies. May not violate the Constitution of US or relevant state • Constitution: Foundation of the government, supreme law of the land. - Case precedence: A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts. - Adversary system: The way the courts handle the issues by having each side show the laws and evidences that support their decision. - Civil burden of proof: help in resolving dispute • “Preponderance of the evidence”: The side with more reliable evidence wins • Both sides bear burden of proof • Majority verdict - Criminal burden of proof: help in enforcing law and imposing penalties • “Beyond a reasonable doubt”: If there is reasonable doubt, the court goes in favor of the defendant • Burden on state – no obligation of defendant to present th evidence (5 Amendment) • Unanimous verdict: One juror against conviction can create a hung verdict - Remedies: the relief given to an innocent party to enforce a right or compensate for the violation of a right • Legal remedy: money (future medical expenses, income, compensation for emotional and physical distress) o Only good for ‘Deep Pocket’ defendant that have money • Equitable remedies: specific performance (e.g. carry on original contract), restraining order, injunction (order telling a party to stop doing something), etc. - “Real case or controversy”: must consist of an actual dispute between parties over their legal rights that remain in conflict at the time the case is presented and must be a proper matter for judicial determination. - Jurisdiction: An area in which a court or courts have the power to apply the law – commonly residence of parties or where the event took place - Substantial minimum contacts: Required for deciding a state’s jurisdiction over certain cases, when parties reside in the state/commerce in the state - Long arm jurisdiction: the ability of local courts to exercise jurisdiction over foreign defendants - Reciprocity of laws: mutual recognition of laws between jurisdictions - Trial court • Fact-finding process o Witnesses, exhibits, documents, expert testimony • Creation of record • Jury/judge decision - Appellate court • Court of review • No new evidence: only evidence presented in the trial will be looked at • Focus on errors of law: find error, conclude that the error was big enough to influence the jury’s decision • Reverse and remand for new trial if significant error - Role of judge • Gatekeeper for relevant evidence • Make sure trial happens in a timely manner • Rule on motions - Role of attorneys • Research for evidence, potential witnesses • Prepare opening statements, direct/cross examinations - Role of jury • Don't discuss the case with anyone, don’t read or hear about it from the outside world • Deliberate for the verdict at the end of the trial • Decide the verdict in jury trials - Levels of appeal • Appeals Court (appeal of right) • Supreme Court (discretionary based on significance of case – factors: significant social policy issue, conflicting Appeals Court Decision, case of first impression – no existing precedent) o Gay marriage case was taken up to the Supreme Court - Notice of appeal • If Motion for new trial was not granted • Must be filed by the attorney of the defendant with the clerk of the trial court within a prescribed period of time • Forwarded to the appeals court - Costs of appeal: usually very expensive, especially ones that claim the verdict was against the evidence Chapter 2: The Courts and Alternative Dispute Resolution - Summons: A document informing a defendant that a legal action has been commenced against him/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 who is authorized. • Failure to appear: default judgment, which means the defendant has lost the right to defend him/herself - Complaint: The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; when a complaint is filed, it initiates a lawsuit. • Addresses defendant, theories of faults, expenses and damages - Answer: A defendant’s response to the plaintiff’s complaint. • Admits or sets out defenses that they have - Counterclaim: A claim made by a defendant in a civil lawsuit that ‘sues back’ the original plaintiff - Cross claim: A claim made by a defendant that names the other defendant as guilty - Third party claim: A claim made by a defendant that names another party that wasn’t named in the lawsuit - Discovery: Process in which opposing parties may obtain information from each other and from third parties prior to trial, longest portion of trial • Interrogatories: Set of written questions that the attorneys ask the opposing side (plaintiff/defendant), signed under oath • Requests for production of documents: Identify documents that you want and request for them to the party that has them (photographs, expert opinion) • Requests for admission: Requesting the other party to admit certain facts, shortens trial since it eliminates need to prove facts they agree on • Deposition: Testimony of a party to a lawsuit or a witness taken under oath before a trial o Testimony, answer questions from both lawyers o Depositions are recorded, and can be played at trial - Motion for summary judgment: A motion requesting the court to enter a judgment without going to trial, only granted if no facts are in dispute - Alternative dispute resolution: mediation, arbitration, mini-trials, private judging, settlement conference • Can be used to solve problems, under both party’s agreement - Pretrial conference: A conference before the trial between the judge and the attorneys. May settle the dispute and/or clarify some issues. - Voir dire: Attorneys question the jurors to determine whether they are biased (related to the parties, victim of the crime, police officer) • Can eliminate unlimited number of jurors for cause • Can eliminate limited number of jurors (2-3) for no reason: Peremptory challenge - Opening statement: A statement made to the jury at the beginning of a trial (Plaintiff-Defendant) to show what the evidence is going to show - Direct examination • The witness brought by their own side getting questioned by their own attorney • Leading questions are not allowed - Cross examination • The other party examines the witness • May bring other points that cause the jurors to discredit the witness - Closing statement: An argument made after the plaintiff and defendant have rested their cases. Emphasizes why the client’s claim is rightful, reveals the other side’s shortcomings - Motion for directed verdict: Motion that takes the decision out of the hands of the jury and giving the verdict to the moving party on the ground that the other party hasn’t produced sufficient evidence to support their case - Jury instructions: Instructions on how to evaluate circumstantial evidence – statements of applicable laws, review of facts presented during case - Jury deliberation: Jurors are put in a room to make judgment, and discuss the evidence before making decisions - Verdict: A formal decision made by the jury • Read to the courtroom after deliberation - Motion for new trial: A motion declaring that the trial was flawed and a new trial is necessary • When the judge is convinced the jury was in error • New evidence, misconduct of participants - Motion for judgment notwithstanding he verdict (JNOV): Motion that overrides the jury verdict in favor of the party filing the motion Chapter 4: Constitutional Authority to Regulate Business Chapter 7: Criminal Law and Cyber Crime - State action: Something initiated by the government of agency of the government - The First Amendment • Religion: Government can’t restrict or promote any religion • Speech o Reasonable time and place restrictions, but may not regulate content, narrowly tailored to accomplish legitimate government’s interests o Non-protected speech: fighting words, incitement to riot, speech causing imminent physical harm, deceptive commercial speech (Consumer Protection Act), obscenity § Obscenity Test conducted to determine obscenity ú Patently offensive ú Appeals primarily to prurient interests ú Lacked any serious artistic, educational, political or scientific value • Press: Publishing classified information can get a reporter in trouble, power of the press can be restricted by the government • Assembly • Petition Government - The Fourth Amendment (“reasonable expectation of privacy”) • Citizens should be free from unwarranted searches and seizures • Balance between government interest and privacy interest - Degree of privacy expectation based on location • Putting something in a safe inside your bedroom closet would be the highest degree • Dorm room would be medium: can be searches during breaks, temporary residence • Motel room would be low: housekeeper comes in daily - “Plain view” doctrine (least private) • Virtually no expectation of privacy because there was no effort to conceal the evidence • Anything that the police can see in ‘plain view’ can be seized without a warrant - “Fruit of the poisonous tree” • If officers find additional evidence through search that involves breach of the rights, this evidence also gets suppressed - Exigent circumstances: Police officers may violate the 4 th Amendment if there is probable cause and no sufficient time to secure a warrant - Automobile exceptions • Protective sweep o Intended to protect officers for passengers that are heavily armed (protect themselves) • Inventory search o If trunk is accessible from passenger seat, them the police have the right to go to the trunk as well - Pat Frisk: Order them out of the vehicle, pat them down (pat frisk) - Search warrant • Officers need to show the magistrate that there is probable cause in the location that will help their investigation • Any evidence found outside the scope of the warrant can be suppressed • The search needs to happen within a reasonable time for it to be valid - Waiver of rights • Rights can be waived: allowing police officers to enter is understood as waiving your rights • If police officers enter regardless, they’ve decided to test their authority, and anything they see/seize can be suppressed from the exclusionary rule. • You don’t have an obligation to show your bag/open your room/etc. - Exclusionary rule (Motion to suppress) • When government officials obtain information by violating the constitution, the court practices the Exclusionary Rule to suppress the evidence • The attorney for the defendant files a motion to suppress evidence, which is done before the trial th th th • How courts practice enforcement of 4 , 5 or 6 amendment - The Fifth Amendment • Right against self-incrimination o Idea that you don’t have to offer any information to the police • No double jeopardy: You can’t be tried twice for the same criminal offense, but can be objected to criminal offense and be sued at the same time • Due process: right to process of the trial o Notice of offense, notice of opportunity to contest, fair hearing, present evidence, appeal • Taking of property - Eminent domain • If the government wants to take your private property, and they can show a legitimate reason, they can take it • You can get reasonable compensation (market value) for the property that has been taken - Miranda warning: Right to remain silent, anything that you say can and will be used against you, rights to counsel (6 ) th • Only read to the ‘target’ of the information, who are not allowed to leave the investigation - The Sixth Amendment • Jury trial: Right to a trial by an impartial jury • Right to counsel: If they can’t afford an attorney, the state will provide one for them. • Speedy trial • Confrontation of witnesses: Right to cross-examine witnesses against them and to solicit testimony from witnesses in their favor - The Fourteenth Amendment • Equal protection of laws: The state may not deny to any person within its jurisdiction the equal protection of the laws. State governments must treat similarly situated individuals in a similar manner. - The Commerce Clause: Congress has the power to regulate interstate commerce - Federal preemption of state law: A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.
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