BUSINESS AND THE LEGAL ENVIRONMENT SECOND EDITIONPDF电子书下载

Part Ⅰ LAWS AND THE COURT SYSTEM 1

1 INTRODUCTION TO LAW 2

Definition of Law 3

Purposes of Law 4

Keeping Order 4

Influencing Conduct 4

Honoring Expectations 4

Promoting Equality 4

Law as the Great Compromiser 4

Characteristics of Law 5

Flexibility 5

Consistency 7

Pervasiveness 7

Theories of Law 8

The Historical Theory of Law or Law as Custom 8

The Natural or Moral Theory of Law 8

The Power Theory of Law or Law as a Command 9

The Social Theory of Law 9

The Economic or Utilitarian Theory of Law 9

Which Theory Is Correct? 9

Classifications of Law 11

Public vs. Private Law 11

Criminal vs. Civil Law 11

Substantive vs. Procedural Law 12

Common vs. Statutory Law 12

Law vs. Equity 12

Sources of Law 13

Constitutional Law 13

Statutory Law at the Federal Level 13

Statutory Law at the State Level 15

Local Government of Cities, Counties, and Townships 15

Private Laws 15

Summary 16

Questions and Problems 16

2 THE JUDICIAL SYSTEM 19

Types of Courts and How Decisions Are Made 20

Trial Courts 20

Appellate Courts 20

Parties in the Judicial System 28

Plaintiffs 28

Defendants 28

Lawyers 28

Judges 29

Changes When on Appeal 29

The Concept of Jurisdiction 29

The Court Systems and Subject Matter Jurisdiction 30

The Federal System 30

The State Court System 37

Judicial Opinions 39

In Personam Jurisdiction 41

Volunteer Jurisdiction 42

Ownership of Property in the State 42

Presence in the State 42

Summary 45

Questions and Problems 45

3 LAWSUITS AND DISPUTE RESOLUTION 47

How Does a Lawsuit Start? 48

Filing the Complaint (Petition) 49

The Summons 51

The Answer 52

Seeking Timely Resolution of the Case 54

Discovery before Trial 55

Pretrial Conference 58

The Trial 58

Alternative Methods of Dispute Settlement 63

Arbitration 63

Mediation 68

The Mini-Trial 68

Rent-a-Judge 69

Summary 70

Questions and Problems 70

4 BUSINESS ETHICS AND SOCIAL RESPONSIBILITY 72

Why Business Ethics? 74

Profitability as a Return on Ethical Behavior 74

Ethics as a Strategy 76

Business Ethics for Personal Reasons 78

What Is Business Ethics? 79

Resolving the Ethical Dilemmas: Which Master Is Served? 81

Inherence 81

Enlightened Self-Interest 82

The Invisible Hand 82

Social Responsibility 83

Can Firms Behave Ethically? The Macro Approach 87

Can Firms Behave Ethically? The Micro Approach 89

The Resolution of Ethical Dilemmas: A Three-Part Test 89

The Overview for Employee Ethics: The Code of Ethics 91

Social Responsibility Roles of Businesses 93

Reactive 93

Status Quo 94

Proactive 94

Summary 94

Questions and Problems 95

5 BUSINESS AND THE CONSTITUTION 100

The U.S. Constitution—An Overview 101

Articles Ⅰ, Ⅱ, and Ⅲ—The Framework for Separation of Powers 101

Other Articles 103

The Bill of Rights 103

The Role of Judicial Review and the Constitution 103

Constitutional Limitations of Economic Regulations 104

The Commerce Clause 104

Constitutional Standards for Taxation of Business 111

The Contracts Clause 114

State vs. Federal Regulation of Business—Constitutional Conflicts 115

Preemption—The Supremacy Clause 115

Application of the Bill of Rights to Business 119

Commercial Speech and the First Amendment 119

Eminent Domain—The Takings Clause 124

Procedural Due Process 130

Substantive Due Process 131

Equal Protection Rights for Business 132

Summary 134

Questions and Problems 134

6 ADMINISTRATIVE LAW 137

Definition and Purposes of an Administrative Agency 138

What Are Administrative Agencies? 138

Why We Need Administrative Agencies 139

Laws Governing Administrative Agencies 145

The Administrative Procedures Act 145

The Freedom of Information Act 145

Federal Privacy Act 147

Government in the Sunshine Act 147

The Federal Register Act 147

The Functions of Administrative Agencies 149

Promulgating Regulations 149

Rule Enforcement and Adjudication 160

Regulation without Prosecuting 160

Regulation by Prosecuting 161

Consent Decrees 163

Hearing 164

Administrative Law of Appeals 165

Summary 166

Questions and Problems 168

7 BUSINESS CRIME 170

The Reasons for Corporate Crime 172

Types of Business Crime 172

Intrabusiness Crime 172

Interbusiness Crime 172

Elements of Business Crime 173

Mens Rea 173

Actus Reus 176

Examples of Business Crimes 176

Theft and Embezzlement 176

Computer Crime 178

Criminal Fraud 180

Foreign Corrupt Practices Act 181

RICO (Racketeer Influenced and Corrupt Organization Act) 183

Federal Crimes 185

State Crimes 186

Who Is Liable for Business Crime? 186

The Penalties for Business Crime 189

Reforming Criminal Penalties 189

Procedural Rights for Business Criminals 191

Fourth Amendment Rights for Businesses 191

Fifth Amendment Rights for Businesses 194

Summary 199

Questions and Problems 200

8 BUSINESS AND TORTS 202

What Is a Tort? 203

Torts vs. Crimes 203

Types of Torts 203

The Intentional Torts 204

Defamation and Product Disparagement 204

False Imprisonment 209

Intentional Infliction of Emotional Distress 211

Invasion of Privacy 211

The Competition Torts 214

Appropriation 214

Palming Off 216

Misappropriation 218

Contract Interference 220

Federal Protection against Business Interference 222

Patents 222

Copyrights 224

Trademarks 225

Negligence 228

Element One: The Duty 228

Element Two: Breach of Duty 231

Element Three: Causation 233

Element Four: Damages 236

Defenses to Negligence 236

Summary 237

Questions and Problems 238

Part Ⅱ BUSINESS MANAGEMENT-EMPLOYMENT AND LABOR LAW 241

9 MANAGEMENT OF EMPLOYEE CONDUCT-AGENCY 242

Names and Roles—Agency Terminology 244

Agency 244

Principals 244

Agents 244

Masters-Servants 244

Independent Contractor 245

Agency Law 245

Creation of the Agency Relationship 245

Express Authority 245

Implied Authority 246

Apparent Authority 247

Ratification 248

The Principal-Agent Relationship 250

The Agent's Responsibilities 250

The Principal's Rights and Responsibilities 252

Liability of Principals for Agents' Conduct: The Relationship with Third Parties 253

Contract Liability 253

Types of Agents and Tort Liability 254

Torts of Servants 254

Torts of Independent Contractors 259

Termination of the Agency Relationship 261

Termination of Agents under Employment at Will 261

The Implied Contract 261

The Public Policy Exception 264

The Anti-Retaliation Statutes: Protections for Whistle-blowers 265

Summary 267

Questions and Problems 268

10 MANAGEMENT OF EMPLOYEE WELFARE - STATUTORY PROTECTIONS 270

Early Federal Regulation 272

The Fair Labor Standards Act 273

Coverage of FLSA 273

Penalties for FLSA Violations 273

Liability for FLSA Violations 273

FLSA Regulations 274

The Equal Pay Act of 1963 276

Occupational Safety and Health Act 277

Employers Covered 277

Employers' Duties 277

OSHA Administration 278

OSHA Procedures 278

OSHA Penalties 283

Employee Rights under OSHA 283

OSHA and Its Ongoing Controversy 283

Pensions, Retirement, and Social Security 284

Social Security 284

Private Retirement Plans 284

Unemployment Compensation 285

Workers' Compensation Laws 289

Employee Injuries 290

Fault Is Immaterial 293

Employee vs. Independent Contractors 293

Benefits 293

Forfeiture of the Right of Suit 294

Third-Party Suits 295

Administrative Agency 295

Insurance 295

Summary 295

Questions and Problems 296

11 EMPLOYMENT DISCRIMINATION 298

History of Employment Discrimination Law 299

The Civil Rights Act of 1964 - Title Ⅶ 300

Application of Title Ⅶ 300

Theories of Discrimination under Title Ⅶ 302

Disparate Treatment 302

Disparate Impact 305

Pattern or Practice of Discrimination 308

Specific Applications of Title Ⅶ 311

Sex Discrimination 311

Religious Discrimination 320

Race Discrimination 321

Anti-Discrimination Laws and Affirmative Action 324

The Defenses to a Title Ⅶ Charge 329

Bona Fide Occupational Qualifications (BFOQ) 329

Seniority or Merit Systems 330

Aptitude and Other Tests 330

Enforcement of Title Ⅶ 331

Steps in an EEOC Case 331

Remedies Available 332

Other Anti-Discrimination Laws 332

Age Discrimination in Employment Act of 1967 332

Equal Pay Act of 1963 334

Communicable Diseases in the Workplace 334

Rehabilitation Act of 1973 334

Americans with Disabilities Act 335

Summary 335

Questions and Problems 336

12 LABOR LAW 339

History and Development of Labor Legislation 340

Common Law Treatment of Labor Issues 340

Early Legislative Control of Labor 340

Early Legislative Protection of Labor 341

Response to the Early Legislation 342

Procedural Labor Law 343

Structure of the NLRB 343

Jurisdiction of the NLRB 343

NLRB Procedures 343

Union Rights and Responsibilities 345

Selecting a Union 345

The Union's Role in Negotiation 350

The Union's Responsibilities to Union Members 353

Union Member Protections 355

Union "Concerted Activities" 357

Union Unfair Labor Practices 359

Employer Rights and Responsibilities 362

Employer Rights 362

Economic Weapons of Employers 364

Employer Unfair Labor Practices 365

New Directions in Labor Law 368

Summary 369

Questions and Problems 370

13 CONTRACTS 372

History and Definition of Contracts 373

Development of Enforceable Promises 373

Enforceable Promises—The Definition of a Contract 373

Sources of Contract Law 373

The Common Law 374

The Uniform Commercial Code 374

Types of Contracts 376

Bilateral vs. Unilateral Contracts 376

Express vs. Implied Contracts 377

Void and Voidable Contracts 377

Unenforceable Contracts 378

Executed vs. Executory 378

Quasi Contracts 378

Formation of Contracts 379

Offer 379

Acceptance—The Offeree's Response 389

Consideration 390

When a Contract Needs to Be Written 392

Capacity 395

Freedom from Defenses 395

Illegality and Public Policy 398

Performance 400

When Performance Is Due 400

Standards for Performance 400

When Performance Is Excused 401

Contract Remedies 402

Contract Perspectives 404

Third-Party Rights in Contracts 406

Summary 408

Questions and Problems 409

14 PRODUCT LIABILITY 412

Development of Product Liability 413

Modern Theories of Product Liability 414

Contract Warranty Theories 414

Express Warranties 414

The Implied Warranty of Fitness for a Particular Purpose 416

The Implied Warranty of Merchantability 418

Eliminating Warranty Liability by Disclaimers 419

Privity Standards for UCC Recovery 421

Statutory Warranty Liability 423

Tort Liability-Actions in Negligence 424

Requirements for a Negligence Action 425

Types of Negligence in Product Liability Cases 426

Privicy Issues in Tort 430

Defenses to Negligence in Product Liability Cases 430

Strict Tort Liability-Product Liability 433

Unreasonably Dangerous Defective Condition 433

Reaching the Buyer in the Same Condition 434

Liability under 402A 434

Defenses under 402A 436

Federal Standards for Product Liability 437

Consumer Product Safety Commission 437

Uniform Product Liability Act 437

Summary 439

Questions and Problems 440

15 CREDIT REGULATION 443

Establishing a Credit Contract 444

Statutory Requirements for Credit Contracts 444

State Usury Laws 444

The Equal Credit Opportunity Act (ECOA) 445

The Truth-in-Lending Act (TILA) 447

Fair Credit Billing Act 456

Fair Credit Reporting Act 458

Consumer Leasing Act 460

Enforcement of Credit Transactions 462

The Use of Collateral—The Security Interest 462

Collection Rights of the Creditor 463

Suits for Enforcement of Debts 465

Summary 468

Questions and Problems 469

16 ADVERTISING AND DECEPTIVE TRADE PRACTICES 471

Common Law Remedies for False Advertising 472

Misrepresentation 472

Fraud 473

Uniform Commercial Code Remedies 473

Federal Regulation of Advertising 475

Legislative History of the Federal Trade Commission 475

Ad Regulation by the FTC 476

FTC Remedies 482

Summary 485

Questions and Problems 485

17 ENVIRONMENTAL REGULATION 487

Statutory Environmental Laws 488

Air Pollution Regulation 488

Water Pollution Regulation 496

Solid Waste Disposal Regulation 498

Environmental Quality Regulation 501

Other Federal Environmental Regulations 503

State Environmental Laws 503

Enforcement of Environmental Laws 504

Parties Responsible for Enforcement 504

Criminal Sanctions for Violations 505

Civil Liability for Violations 506

Summary 508

Questions and Problems 509

Part Ⅲ BUSINESS FORMS AND CAPITALIZATION 511

18 FORMS OF DOING BUSINESS 512

The Sole Proprietorship 513

Formation 513

Sources of Funding 513

Liability 513

Tax Consequences 513

Management and Control 513

Transferability of Interest 514

The Partnership 514

Formation 514

Sources of Funding 518

Partner Relationships 518

Tax Issues in Partnerships 521

Dissolution and Termination of the Partnership 522

Limited Partnerships 522

Formation 523

Sources of Funding 524

Liability 524

Partner Relationships 525

Tax Consequences 526

Dissolution and Termination of a Limited Partnership 526

Corporations 527

Types of Corporations 527

The Law of Corporations 528

Formation 528

Capital and Sources of Corporate Funds 530

Liability Issues 531

Corporate Management and Control 542

The Dissolution of a Corporation 545

Corporate Tax Issues 547

Summary 547

Questions and Problems 548

19 SECURITIES LAW 552

History of Securities Law 553

Primary Offering Regulation-The 1933 Securities Act 553

What Is a Security? 554

Regulating Primary Offerings 557

Registering Securities 557

What Must Be Filed 560

Violations of the 1933 Act 563

The Securities Exchange Act of 1934 568

Securities Registration 568

Periodic Filing 568

The Antifraud Provisions 569

Insider Trading arid Short-Swing Profits 577

Regulating Voting Information 577

The Foreign Corrupt Practices Act 580

Content of the FCPA 580

Penalties for Violation of die FCPA 580

State Securities Laws 580

Summary 582

Questions and Problems 582

20 TAKEOVERS, MERGERS, AND CONSOLIDATIONS 586

Types of Business Combinations 587

Mergers 587

Consolidations 588

Tender Offers 589

Takeovers 589

The Players, Terms, and Strategies in Mergers, Consolidations, and Takeovers 589

Target Firm 589

Offeror 589

White Knight 590

Other Strategies in Takeovers 590

Financing Mergers and Takeovers 592

Asset Acquisitions 595

Rights of Shareholders When Businesses Combine 596

The Procedure 596

Dissenting Shareholder and Appraisal Rights 597

Legal Restrictions on Business Combinations 597

Federal Securities Restrictions 597

State Laws Affecting Tender Offers 603

The Future for State Antitakeover Statutes 605

Tender Offers and White Knights 606

Proxy Regulations and Tender Offers 606

Antitrust Regulation of Business Combinations 606

Summary 609

Questions and Problems 609

Part Ⅳ BUSINESS AND COMPETITION 613

21 HORIZONTAL TRADE RESTRAINTS 614

History of Antitrust Law 615

Early Common Law of Trade Restraints 615

Modern Common Law of Trade Restraints 615

Federal Antitrust Statutes 617

Jurisdiction of Antitrust Laws 619

Sherman Act Jurisdiction 619

Clayton Act Jurisdiction 620

Robinson-Patman Act Jurisdiction 621

Antitrust Penalties and Remedies 621

Criminal Penalties 621

Equitable Remedies 621

Private Actions for Damages 621

Horizontal Restraints of Trade 622

Sherman Act Restraints 622

Clayton Act Restraints 635

Summary 639

Questions and Problems 640

22 VERTICAL TRADE RESTRAINTS 643

What Are Vertical Restraints? 644

Resale Price Maintenance 644

Sole Outlets and Exclusive Distributorships 647

Customer and Territorial Restrictions 650

Tying Arrangements 651

Exclusive Dealing or Requirements Contracts 653

Price Discrimination 653

Seller Engaged in Commerce 654

Price Discrimination between Purchasers 654

Commodities of Like Grade and Quality 654

Lessening or Injuring Competition 655

Defenses to Price Discrimination 659

Exemptions to Price Discrimination 659

Vertical Mergers 659

Summary 662

Questions and Problems 662

23 INTERNATIONAL BUSINESS 665

Sources of International Law 666

Custom 667

Treaties 667

Private Law in International Transactions 667

International Organizations 668

Act of State Protection 668

Resolution of International Disputes 668

The Role of U.S. Courts 668

The International Courts 670

Jurisdictional Issues in International Law 670

International Business Transactions—Worldwide Contracts 672

Assuring Payment 672

Assuring Performance—International Peculiarities 673

Product Liability 674

Issues in International Competition 674

Patent Protection 674

Trademark Protection 675

Copyrights in International Business 678

Bribery as a Means of Competing—The FCPA 678

Antitrust Issues in International Competition 679

Tariffs and Competition 681

Summary 681

Questions and Problems 682

APPENDIXES 683

A: The United States Constitution 683

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 Torts 720

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

GLOSSARY 731

CASE INDEX 753

SUBJECT INDEX 765