《BUSINESS AND THE LEGAL ENVIRONMENT SECOND EDITION》求取 ⇩

Part Ⅰ LAWS AND THE COURT SYSTEM1

1 INTRODUCTION TO LAW2

Definition of Law3

Purposes of Law4

Keeping Order4

Influencing Conduct4

Honoring Expectations4

Promoting Equality4

Law as the Great Compromiser4

Characteristics of Law5

Flexibility5

Consistency7

Pervasiveness7

Theories of Law8

The Historical Theory of Law or Law as Custom8

The Natural or Moral Theory of Law8

The Power Theory of Law or Law as a Command9

The Social Theory of Law9

The Economic or Utilitarian Theory of Law9

Which Theory Is Correct?9

Classifications of Law11

Public vs. Private Law11

Criminal vs. Civil Law11

Substantive vs. Procedural Law12

Common vs. Statutory Law12

Law vs. Equity12

Sources of Law13

Constitutional Law13

Statutory Law at the Federal Level13

Statutory Law at the State Level15

Local Government of Cities, Counties, and Townships15

Private Laws15

Summary16

Questions and Problems16

2 THE JUDICIAL SYSTEM19

Types of Courts and How Decisions Are Made20

Trial Courts20

Appellate Courts20

Parties in the Judicial System28

Plaintiffs28

Defendants28

Lawyers28

Judges29

Changes When on Appeal29

The Concept of Jurisdiction29

The Court Systems and Subject Matter Jurisdiction30

The Federal System30

The State Court System37

Judicial Opinions39

In Personam Jurisdiction41

Volunteer Jurisdiction42

Ownership of Property in the State42

Presence in the State42

Summary45

Questions and Problems45

3 LAWSUITS AND DISPUTE RESOLUTION47

How Does a Lawsuit Start?48

Filing the Complaint (Petition)49

The Summons51

The Answer52

Seeking Timely Resolution of the Case54

Discovery before Trial55

Pretrial Conference58

The Trial58

Alternative Methods of Dispute Settlement63

Arbitration63

Mediation68

The Mini-Trial68

Rent-a-Judge69

Summary70

Questions and Problems70

4 BUSINESS ETHICS AND SOCIAL RESPONSIBILITY72

Why Business Ethics?74

Profitability as a Return on Ethical Behavior74

Ethics as a Strategy76

Business Ethics for Personal Reasons78

What Is Business Ethics?79

Resolving the Ethical Dilemmas: Which Master Is Served?81

Inherence81

Enlightened Self-Interest82

The Invisible Hand82

Social Responsibility83

Can Firms Behave Ethically? The Macro Approach87

Can Firms Behave Ethically? The Micro Approach89

The Resolution of Ethical Dilemmas: A Three-Part Test89

The Overview for Employee Ethics: The Code of Ethics91

Social Responsibility Roles of Businesses93

Reactive93

Status Quo94

Proactive94

Summary94

Questions and Problems95

5 BUSINESS AND THE CONSTITUTION100

The U.S. Constitution—An Overview101

Articles Ⅰ, Ⅱ, and Ⅲ—The Framework for Separation of Powers101

Other Articles103

The Bill of Rights103

The Role of Judicial Review and the Constitution103

Constitutional Limitations of Economic Regulations104

The Commerce Clause104

Constitutional Standards for Taxation of Business111

The Contracts Clause114

State vs. Federal Regulation of Business—Constitutional Conflicts115

Preemption—The Supremacy Clause115

Application of the Bill of Rights to Business119

Commercial Speech and the First Amendment119

Eminent Domain—The Takings Clause124

Procedural Due Process130

Substantive Due Process131

Equal Protection Rights for Business132

Summary134

Questions and Problems134

6 ADMINISTRATIVE LAW137

Definition and Purposes of an Administrative Agency138

What Are Administrative Agencies?138

Why We Need Administrative Agencies139

Laws Governing Administrative Agencies145

The Administrative Procedures Act145

The Freedom of Information Act145

Federal Privacy Act147

Government in the Sunshine Act147

The Federal Register Act147

The Functions of Administrative Agencies149

Promulgating Regulations149

Rule Enforcement and Adjudication160

Regulation without Prosecuting160

Regulation by Prosecuting161

Consent Decrees163

Hearing164

Administrative Law of Appeals165

Summary166

Questions and Problems168

7 BUSINESS CRIME170

The Reasons for Corporate Crime172

Types of Business Crime172

Intrabusiness Crime172

Interbusiness Crime172

Elements of Business Crime173

Mens Rea173

Actus Reus176

Examples of Business Crimes176

Theft and Embezzlement176

Computer Crime178

Criminal Fraud180

Foreign Corrupt Practices Act181

RICO (Racketeer Influenced and Corrupt Organization Act)183

Federal Crimes185

State Crimes186

Who Is Liable for Business Crime?186

The Penalties for Business Crime189

Reforming Criminal Penalties189

Procedural Rights for Business Criminals191

Fourth Amendment Rights for Businesses191

Fifth Amendment Rights for Businesses194

Summary199

Questions and Problems200

8 BUSINESS AND TORTS202

What Is a Tort?203

Torts vs. Crimes203

Types of Torts203

The Intentional Torts204

Defamation and Product Disparagement204

False Imprisonment209

Intentional Infliction of Emotional Distress211

Invasion of Privacy211

The Competition Torts214

Appropriation214

Palming Off216

Misappropriation218

Contract Interference220

Federal Protection against Business Interference222

Patents222

Copyrights224

Trademarks225

Negligence228

Element One: The Duty228

Element Two: Breach of Duty231

Element Three: Causation233

Element Four: Damages236

Defenses to Negligence236

Summary237

Questions and Problems238

Part Ⅱ BUSINESS MANAGEMENT-EMPLOYMENT AND LABOR LAW241

9 MANAGEMENT OF EMPLOYEE CONDUCT-AGENCY242

Names and Roles—Agency Terminology244

Agency244

Principals244

Agents244

Masters-Servants244

Independent Contractor245

Agency Law245

Creation of the Agency Relationship245

Express Authority245

Implied Authority246

Apparent Authority247

Ratification248

The Principal-Agent Relationship250

The Agent's Responsibilities250

The Principal's Rights and Responsibilities252

Liability of Principals for Agents' Conduct: The Relationship with Third Parties253

Contract Liability253

Types of Agents and Tort Liability254

Torts of Servants254

Torts of Independent Contractors259

Termination of the Agency Relationship261

Termination of Agents under Employment at Will261

The Implied Contract261

The Public Policy Exception264

The Anti-Retaliation Statutes: Protections for Whistle-blowers265

Summary267

Questions and Problems268

10 MANAGEMENT OF EMPLOYEE WELFARE - STATUTORY PROTECTIONS270

Early Federal Regulation272

The Fair Labor Standards Act273

Coverage of FLSA273

Penalties for FLSA Violations273

Liability for FLSA Violations273

FLSA Regulations274

The Equal Pay Act of 1963276

Occupational Safety and Health Act277

Employers Covered277

Employers' Duties277

OSHA Administration278

OSHA Procedures278

OSHA Penalties283

Employee Rights under OSHA283

OSHA and Its Ongoing Controversy283

Pensions, Retirement, and Social Security284

Social Security284

Private Retirement Plans284

Unemployment Compensation285

Workers' Compensation Laws289

Employee Injuries290

Fault Is Immaterial293

Employee vs. Independent Contractors293

Benefits293

Forfeiture of the Right of Suit294

Third-Party Suits295

Administrative Agency295

Insurance295

Summary295

Questions and Problems296

11 EMPLOYMENT DISCRIMINATION298

History of Employment Discrimination Law299

The Civil Rights Act of 1964 - Title Ⅶ300

Application of Title Ⅶ300

Theories of Discrimination under Title Ⅶ302

Disparate Treatment302

Disparate Impact305

Pattern or Practice of Discrimination308

Specific Applications of Title Ⅶ311

Sex Discrimination311

Religious Discrimination320

Race Discrimination321

Anti-Discrimination Laws and Affirmative Action324

The Defenses to a Title Ⅶ Charge329

Bona Fide Occupational Qualifications (BFOQ)329

Seniority or Merit Systems330

Aptitude and Other Tests330

Enforcement of Title Ⅶ331

Steps in an EEOC Case331

Remedies Available332

Other Anti-Discrimination Laws332

Age Discrimination in Employment Act of 1967332

Equal Pay Act of 1963334

Communicable Diseases in the Workplace334

Rehabilitation Act of 1973334

Americans with Disabilities Act335

Summary335

Questions and Problems336

12 LABOR LAW339

History and Development of Labor Legislation340

Common Law Treatment of Labor Issues340

Early Legislative Control of Labor340

Early Legislative Protection of Labor341

Response to the Early Legislation342

Procedural Labor Law343

Structure of the NLRB343

Jurisdiction of the NLRB343

NLRB Procedures343

Union Rights and Responsibilities345

Selecting a Union345

The Union's Role in Negotiation350

The Union's Responsibilities to Union Members353

Union Member Protections355

Union "Concerted Activities"357

Union Unfair Labor Practices359

Employer Rights and Responsibilities362

Employer Rights362

Economic Weapons of Employers364

Employer Unfair Labor Practices365

New Directions in Labor Law368

Summary369

Questions and Problems370

13 CONTRACTS372

History and Definition of Contracts373

Development of Enforceable Promises373

Enforceable Promises—The Definition of a Contract373

Sources of Contract Law373

The Common Law374

The Uniform Commercial Code374

Types of Contracts376

Bilateral vs. Unilateral Contracts376

Express vs. Implied Contracts377

Void and Voidable Contracts377

Unenforceable Contracts378

Executed vs. Executory378

Quasi Contracts378

Formation of Contracts379

Offer379

Acceptance—The Offeree's Response389

Consideration390

When a Contract Needs to Be Written392

Capacity395

Freedom from Defenses395

Illegality and Public Policy398

Performance400

When Performance Is Due400

Standards for Performance400

When Performance Is Excused401

Contract Remedies402

Contract Perspectives404

Third-Party Rights in Contracts406

Summary408

Questions and Problems409

14 PRODUCT LIABILITY412

Development of Product Liability413

Modern Theories of Product Liability414

Contract Warranty Theories414

Express Warranties414

The Implied Warranty of Fitness for a Particular Purpose416

The Implied Warranty of Merchantability418

Eliminating Warranty Liability by Disclaimers419

Privity Standards for UCC Recovery421

Statutory Warranty Liability423

Tort Liability-Actions in Negligence424

Requirements for a Negligence Action425

Types of Negligence in Product Liability Cases426

Privicy Issues in Tort430

Defenses to Negligence in Product Liability Cases430

Strict Tort Liability-Product Liability433

Unreasonably Dangerous Defective Condition433

Reaching the Buyer in the Same Condition434

Liability under 402A434

Defenses under 402A436

Federal Standards for Product Liability437

Consumer Product Safety Commission437

Uniform Product Liability Act437

Summary439

Questions and Problems440

15 CREDIT REGULATION443

Establishing a Credit Contract444

Statutory Requirements for Credit Contracts444

State Usury Laws444

The Equal Credit Opportunity Act (ECOA)445

The Truth-in-Lending Act (TILA)447

Fair Credit Billing Act456

Fair Credit Reporting Act458

Consumer Leasing Act460

Enforcement of Credit Transactions462

The Use of Collateral—The Security Interest462

Collection Rights of the Creditor463

Suits for Enforcement of Debts465

Summary468

Questions and Problems469

16 ADVERTISING AND DECEPTIVE TRADE PRACTICES471

Common Law Remedies for False Advertising472

Misrepresentation472

Fraud473

Uniform Commercial Code Remedies473

Federal Regulation of Advertising475

Legislative History of the Federal Trade Commission475

Ad Regulation by the FTC476

FTC Remedies482

Summary485

Questions and Problems485

17 ENVIRONMENTAL REGULATION487

Statutory Environmental Laws488

Air Pollution Regulation488

Water Pollution Regulation496

Solid Waste Disposal Regulation498

Environmental Quality Regulation501

Other Federal Environmental Regulations503

State Environmental Laws503

Enforcement of Environmental Laws504

Parties Responsible for Enforcement504

Criminal Sanctions for Violations505

Civil Liability for Violations506

Summary508

Questions and Problems509

Part Ⅲ BUSINESS FORMS AND CAPITALIZATION511

18 FORMS OF DOING BUSINESS512

The Sole Proprietorship513

Formation513

Sources of Funding513

Liability513

Tax Consequences513

Management and Control513

Transferability of Interest514

The Partnership514

Formation514

Sources of Funding518

Partner Relationships518

Tax Issues in Partnerships521

Dissolution and Termination of the Partnership522

Limited Partnerships522

Formation523

Sources of Funding524

Liability524

Partner Relationships525

Tax Consequences526

Dissolution and Termination of a Limited Partnership526

Corporations527

Types of Corporations527

The Law of Corporations528

Formation528

Capital and Sources of Corporate Funds530

Liability Issues531

Corporate Management and Control542

The Dissolution of a Corporation545

Corporate Tax Issues547

Summary547

Questions and Problems548

19 SECURITIES LAW552

History of Securities Law553

Primary Offering Regulation-The 1933 Securities Act553

What Is a Security?554

Regulating Primary Offerings557

Registering Securities557

What Must Be Filed560

Violations of the 1933 Act563

The Securities Exchange Act of 1934568

Securities Registration568

Periodic Filing568

The Antifraud Provisions569

Insider Trading arid Short-Swing Profits577

Regulating Voting Information577

The Foreign Corrupt Practices Act580

Content of the FCPA580

Penalties for Violation of die FCPA580

State Securities Laws580

Summary582

Questions and Problems582

20 TAKEOVERS, MERGERS, AND CONSOLIDATIONS586

Types of Business Combinations587

Mergers587

Consolidations588

Tender Offers589

Takeovers589

The Players, Terms, and Strategies in Mergers, Consolidations, and Takeovers589

Target Firm589

Offeror589

White Knight590

Other Strategies in Takeovers590

Financing Mergers and Takeovers592

Asset Acquisitions595

Rights of Shareholders When Businesses Combine596

The Procedure596

Dissenting Shareholder and Appraisal Rights597

Legal Restrictions on Business Combinations597

Federal Securities Restrictions597

State Laws Affecting Tender Offers603

The Future for State Antitakeover Statutes605

Tender Offers and White Knights606

Proxy Regulations and Tender Offers606

Antitrust Regulation of Business Combinations606

Summary609

Questions and Problems609

Part Ⅳ BUSINESS AND COMPETITION613

21 HORIZONTAL TRADE RESTRAINTS614

History of Antitrust Law615

Early Common Law of Trade Restraints615

Modern Common Law of Trade Restraints615

Federal Antitrust Statutes617

Jurisdiction of Antitrust Laws619

Sherman Act Jurisdiction619

Clayton Act Jurisdiction620

Robinson-Patman Act Jurisdiction621

Antitrust Penalties and Remedies621

Criminal Penalties621

Equitable Remedies621

Private Actions for Damages621

Horizontal Restraints of Trade622

Sherman Act Restraints622

Clayton Act Restraints635

Summary639

Questions and Problems640

22 VERTICAL TRADE RESTRAINTS643

What Are Vertical Restraints?644

Resale Price Maintenance644

Sole Outlets and Exclusive Distributorships647

Customer and Territorial Restrictions650

Tying Arrangements651

Exclusive Dealing or Requirements Contracts653

Price Discrimination653

Seller Engaged in Commerce654

Price Discrimination between Purchasers654

Commodities of Like Grade and Quality654

Lessening or Injuring Competition655

Defenses to Price Discrimination659

Exemptions to Price Discrimination659

Vertical Mergers659

Summary662

Questions and Problems662

23 INTERNATIONAL BUSINESS665

Sources of International Law666

Custom667

Treaties667

Private Law in International Transactions667

International Organizations668

Act of State Protection668

Resolution of International Disputes668

The Role of U.S. Courts668

The International Courts670

Jurisdictional Issues in International Law670

International Business Transactions—Worldwide Contracts672

Assuring Payment672

Assuring Performance—International Peculiarities673

Product Liability674

Issues in International Competition674

Patent Protection674

Trademark Protection675

Copyrights in International Business678

Bribery as a Means of Competing—The FCPA678

Antitrust Issues in International Competition679

Tariffs and Competition681

Summary681

Questions and Problems682

APPENDIXES683

A: The United States Constitution683

B: Administrative Procedures Act (Excerpts)694

C: Title Ⅶ of the Civil Rights Act of 1964 (Excerpts)702

D: The Uniform Commercial Code (Excerpts)705

E: The 1933 and 1934 Securities Acts (Excerpts)712

F: The Copyright Act of 1976 (Excerpts)716

G: The Foreign Corrupt Practices Act (Excerpts)718

H: Sections 402A and 402B of the Restatement (Second) of Torts720

I: The Federal Trade Commission Act (Excerpts)721

J: The Clayton Act (Excerpts)722

K: The Sherman Act (Excerpts)724

L: The Robinson-Patman Act (Excerpts)725

M: The National Labor Relations Act (Excerpts)727

GLOSSARY731

CASE INDEX753

SUBJECT INDEX765