BUL 4421 QUESTIONS AND ANSWERS LATEST UPDATE (ALREADY GRADED A+).

BUL 4421 QUESTIONS AND ANSWERS LATEST UPDATE (ALREADY GRADED A+). A negotiation in which each party seeks to maximize its own gain. Adversarial negotiation A negotiation in which the parties seek to achieve joint gain. Problem-solving The disputing parties select a neutral party to help facilitate communication and suggest ways for the parties to solve their dispute. Mediation 1. Alternative dispute resolution by neutral third party outside of judicial setting. 2. Voluntary process in that parties typically have a contractual agreement to resolve disputes (only for civil, not criminal). Arbitration Arbitration agreement may stipulate (2): 1. How arbitrator is selected 2. How arbitration is administered 1. Similar to a trial 2. Both parties present their case to a neutral third-party 3. Parties may represent themselves or use legal counsel Arbitration Hearing 1. Arbitrator typically provides a decision within 30 days of the arbitration hearing. 2. Arbitrator's decision is called an award, even if no monetary compensation is awarded. Arbitrator's Award 1. More efficient & less expensive than litigation. 2. Parties have more control over the process. 3. Parties can choose arbitrator with expertise in field concerning dispute. 4. Arbitrator has greater flexibility in decision than judge. Arbitration Advantages 1. Injustice more likely to occur because appealing an arbitration award is very difficult. 2. Giving up important right to litigate. 3. The more business use arbitration the more it will become similar to litigation. 4. Disputes are hidden by arbitration process. Arbitration Disadvantages Methods of Securing Arbitration (2): 1. Binding Arbitration Clause 2. Submission Agreement Provision in contract that mandates disputes arising under contract settled by arbitration. Binding Arbitration Clause Contract providing that specific dispute resolved through arbitration. Submission Agreement Grounds for rescinding an unconscionable contract. Unconscionability A term applied to a contract in which one party has so much bargaining power than the other party that the powerful party dictates the terms of the agreement and eliminates the other party's free will. Unconscionable A type of intensive negotiation in which disputing parties select neutral third party to help: (i) Facilitate communication and (ii) Suggest ways for the parties to solve their dispute. Mediation If the mediation is successful the parties enter into a ________________ agreement. mediation True or False: If a party breaches (does not perform) the mediation agreement, the other non-breaching party may seek to enforce settlement. True 1. Programs where courts encourage or mandate use some of ADR before bringing dispute to trial. 2. Most popular Court-Annexed ADR is Mediation Court-Annex ADR Chapter 5: Constitutional Principles Chapter 5: Constitutional Principles A system of government in which power is divided between a central authority and a constituent political units. Federalism ______ Amendment to U.S. Constitution states all powers neither given to Federal Government nor taken from states are reserved for states 10th Federal legislation affecting business must be based on expressed ________________ authority. Constitutional Article VI, Paragraph 2, of the U.S. Constitution, which states that the Constitution and all the laws and treaties of the U.S. constitute the supreme law of the land. Thus, any state or local law that directly conflicts with the Constitution, federal laws, or treaties is void. Supremacy Clause In some areas both state and federal govt's have the power to render a binding verdict for this type of case. Concurrent Authority A principle asserting the supremacy of federal legislation over state legislation when both pertain to the same subject matter. (Ex: Brown v Board of Education) Federal Preemption (aka field preemption) Clause 3 of Article I, Section 8, of the U.S. Constitution, which states that the U.S. Congress has the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." (Ex: Casinos) Commerce Clause The first 10 amendments to the U.S. Constitution are known as the _____ of ________. Bill of Rights Two things the Bill of Rights does: 1. Substantially affects government regulation of business. 2. Prohibits federal government from infringing on individual freedoms 1. Not an absolute right 2. A person does not have a right to yell "fire" in a crowded theater, make false statements of fact that injurious to another's reputation, or to use obscenity. (Ex: Fighting words, defamatory words, and obscenity are unprotected speech). First Amendment Prohibits government from conducting unreasonable searches of individuals and seizing their property to use as evidence against them. (Ex: Ohio state law required addresses of buyers of more than 5 kegs from keg stores, and that signed agreements on purchase that police could enter the property. Ohio law was repealed in 2001. Page 112). Fourth Amendment A court order that authorizes law enforcement agents to search for and seize items specifically described in the warrant. Search Warrant Any essential element and/or standard by which a lawful officer may make a valid arrest, conduct a personal or property search, or obtain a warrant. probable cause Warrants are usually _________. vague 1. Protects against self-incrimination (do not have to testify against one self). 2. Protects against double jeopardy. 3. Contains due process clause Fifth Amendment Government cannot try a person more than once for the same crime. Double Jeopardy 1. Government cannot deprive person of life, liberty, or property without due process of law. 2. Procedural Due Process 3. Substantive Due Process Due Process Clause The requirement that the government must use fair procedures before depriving a person of his or her life, liberty, or poverty. 1. Requires government use fair procedures 2. Entitles notice of legal action against him/her 3. Entitled opportunity to be heard 4. Entitles impartial tribunal (Jury can't be bias) Procedural Due Process The requirement that laws that depriving an individual of life, liberty, or property be fair and not arbitrary. Substantive Due Process Fourteenth Amendment Due Process Clause (3): 1. Strict Scrutiny 2. Intermediate Scrutiny 3. Rational Basis If: 1. Law prevents individuals from exercising fundamental right 2. Law's classification scheme involves suspect classifications based on race, national origin, or citizenship. then Strict Scrutiny applies. If the law's classification scheme is based on gender or on the legitimacy of children, courts use intermediate scrutiny. then Intermediate Scrutiny applies. If a classification scheme involves other matters, courts apply a rational-basis test then Rational Basis applies. Chapter 7: Crime and the Business Community Chapter 7: Crime and the Business Community The government must demonstrate (2) elements of a crime: 1. Wrongful behavior, that is, actus renu or a guilty act. 2. Wrongful state of mind, also know as mens rea or guilty mind. Exception to "mens rea" requirement: Strict Liability Crimes (Liability without fault or strict liability) Latin for "guilty mind"; the mental state accompanying a wrongful behavior. "mens rea" Liability in which responsibility for damages is imposed regardless of the existence of negligence. (Ex: selling cigarettes or alcohol to a minor) Strict Liability (aka Liability without Fault) Classification of Crimes (9): 1. Felony 2. Misdemeanor 3. Petty Offenses 4. Robbery 5. Burglary 6. Larceny 7. False Pretenses 8. Forgery 9. Embezzlement Include serious crimes, such as murder, that is punishable by imprisonment for more than one year or death. Felony Less serious crimes punishable by fines and/or imprisonment for less than one year. Misdemeanor Small crimes that is usually punishable by a jail sentence of less than six months and/or a small fine (e.g. violating a building code). Petty Offenses The forceful and unlawful taking of personal property. Robbery A crime when someone unlawfully enters a building with the intent to commit a felony or theft. Burglary The secretive and wrongful taking and carrying away of the personal property of another with the intent to permanently deprive the rightful owner of its possession. Larceny A materially false representation of an existing fact, with knowledge of their falsity of the representation and with the intent to defraud. False Pretenses The fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another and with the intent to deceive or defraud. Forgery The wrongful conversion of another's funds or property by one who is lawfully in possession of those funds or property. Embezzlement Fourth Amendment Safeguards (2): 1. Protection from unreasonable search and seizure 2. Restrictions on warrants True or False: Gov't officials are not allowed to perform search without proper warrant or without probably cause for a search. True Fourth Amendment Protections (2): 1. Before an arrest warrant may be issued the gov't must demonstrate probable cause that a crime occurred. 2. Fourth Amendment therefore protects an individual's privacy Fifth Amendment Protections (3): 1. Double Jeopardy 2. Right to remain silent (does not apply to corporations) 3. Guaranty of Due Process Ensures Defendant may not be stricken of life, liberty, or property without first going through the appropriate process. Guaranty of Due Process Miranda Rights which evolved from the Miranda v. Arizona Supreme Court case (Page 166) 1. "You have the right to remain silent and refuse to answer any questions." 2. "You have the right to consult an attorney before speaking to the police and have an attorney present during any questioning now or in the future." 3. "If you cannot afford an attorney, one will be appointed for you before the questioning begins." 4. "If you do not have an attorney available, you have the right to remain silent until you have had an opportunity to consult with one." 5. "Now that I have advised you of your rights, are you willing to answer any questions without an attorney present?" 6. "Anything you say may be used against you in court of law." 1. Holds that all evidence obtained in violation of the constitutional rights spelled out in the Fourth, Fifth, and Sixth Amendments is normally not admissible at trail. 2. Such evidence is considered "fruit of the poisonous tree" because it is result of an illegal procedure. The Exclusionary Rule