Exam 3 Flashcards
The ancient Greek philosophers often questioned the claim that statute laws really represent a society’s values. This questioning created a discipline now known as the
Philosophy of Law
The view of Socrates
in Plato’s Republic
Laws derive from man’s
innate sense of justice.
the view that morality is inherently rational and objective
Moral Intellectualism
the view that eternal human values determine the laws of a society
Natural law theory
The view of Thrasymachus
in Plato’s Republic
Laws are only what people in power want them to be.
the view that rulers create moral principles so their society can be controlled
Voluntarism
This term captures the essence of the view of Thrasymachus
in Plato’s Republic
Corporate Cronyism
The five historic forms of power potentially available to one individual
- guns & muscle (e.g. personal guards)
- expertise (e.g. a law degree)
- economic power (land, stocks, cash, etc.)
- political power (the ability to rally a large number of individuals)
- military power (all of the above)
In this, businesses or professionals band together to have a state board created whose task is to restrict competition through discriminatory regulations.
Rent Seeking
The 1943 Parker Case
In this, the Supreme Court held that private parties acting in concert with state government are not constrained by Federal anti-trust laws.
In this, Corporations join with local Economic Development Authorities (EDAs) to force private individuals to sell them their land.
Public-Private Partnerships.
Kelo v. City of New London
In this case the Supreme Court ruled that the general benefits a community enjoys (trans. greater good) from economic growth qualified private redevelopment plans as a permissible “public use” under the Takings Clause of the Fifth Amendment.
In this the Supreme Court ruled that a business, if in partnership with government, can use eminent domain; if it can be proved the outcome will raise the amount of collectible property taxes
Corporate cronyism most often takes the form of lobbying for laws that serve to deprive consumers of the right of consent. This can take an otherwise legitimate business to a gray area called:
The penumbra of the law
The accepted norms
of one’s society
Ethos
The study of word origins
Etymology
The study of rules relating to interpersonal relationships
Morality
A set of principles, virtues, and values governing social interactions which sustains accepted fundamental rights for all.
Moral Philosophy
The process of deciding what is fair and not fair with respect to people you know
Moral Judgment
4 key aspects of Morality
- More culturally based
- More often involves private matters
- Contract violations are personal
- Religion supplies the codes of conduct
4 key aspects of Integrity
- More universal and professionally based
- More often involves public matters
- Contract violations are institutional
- Profession supplies the codes of conduct
These are governed by the unwritten rules of decorum and ethos.
Conformity expectations
The willingness and ability to conform to the standards of hygiene, dress and behavior culturally expected for the situation at hand.
Decorum
The set of informal shared values, norms, behavioral standards, and expectations that influence the ways in which individuals, teams, and groups interact to achieve company goals.
Organizational Culture
a tendency to bow to peer pressure even when it goes against one’s better judgment
Acceptance Dependency
In this, two or more parties establish the rules by which they will interact with each other.
Contract law
In this, though both parties legally have equal rights, one is in some way disadvantaged
Contractual Inequality
For businesses and professionals these are defined by conformity expectations and one’s organizational culture.
Implicit contracts
This takes place when one holds to two contractual obligations, either explicit or implicit, one to each of two competing parties
Conflict of Interest
As used in contract law, this term refers to important information necessary to one’s ability to make a proper decision
Material
One where the contractor fully discloses all material information to the client
Fair Contract
A Big Boy Letter
Def. 1: A pre-sale agreement [ esp. a private sale of publicly traded securities] not to sue over non-disclosure of material information.
Def. 2: These arise when a contract covers many complex issues in which both parties have expertise
The doing of all one can
do to prevent harm
Due Diligence
This process of methodically communicating with customers to ensure the collection of accounts receivable is considered to be unethical when it takes on the form of harassment
Dunning
a term in contract law that describes a declaration by the promising party (client) to a contract, that he or she does not intend to live up to his or her obligations under the contract if unforeseen circumstances arise
Anticipatory repudiation
a voluntary breach with payment of damages by a party who concludes that they would incur greater economic loss by performing under the contract
efficient breach of contract
Anyone who is bound by the contract at hand.
Contractor
The three most common causes of a breach of contract claim
1 a failure to supply goods or fulfill services
2 a post-signing altering of terms
3 the presence of fraud
The three kinds of contractual fraud
1 Misrepresentation of facts
2 Misrepresentation of laws
3 Silence with regard to material facts
One who holds esoteric knowledge in something
Scienter
Knowledge belonging only to the most educated in a given field
Esoteric
The three primary kinds of damages (money amount) awarded in contractual fraud cases
1 compensatory – this reimburses a direct loss (financial or otherwise) to the victim.
(the wedding dress was never delivered $800.00)
2 Consequential – often called special damages, this reimburses an indirect loss (financial or otherwise) to the victim
(the caterer had to be paid $3,000 for nothing because the wedding had to be called off.)
3 nominal – this assesses a small amount against the defendant where a misrepresentation is not material, but a point needs to be made.
(A roofing contractor failed to thoroughly clean up the yard of a client after the job was completed and was sued by the homeowner)
a wrongful act, either intentional or unintentional, for which the courts might award compensatory damages
Tort
a term referring to those improper behaviors or acts that have crossed the line from something inappropriate to being a breach of contract,
a tort, or a crime
Actionable
A defendant in a tort (lawsuit)
Tortfeasor
In this a business knowingly engages in conduct that causes physical harm, psychological harm, or loss of property
Intention
These are awarded when harm by a
professional or company is accompanied by
ethical misconduct.
Punitive Damages
In this, a business causes harm through a failure in Due Care
Negligence
Doing all one can do to prevent an accident, act of discrimination, or other harm
Due Care
A legal concept that means a manager or business owner can be held personally responsible for injury or damage caused by an employee because managers are responsible for employee conduct in the workplace.
Vicarious Liability
A threat to employers created by the use of office computers by employees as a device to engage in activities harmful to others.
Cyber Liability
Torts from cyber liability are most often based on:
Defamation
Breach of privacy
Stalking
Harassment
an area of tort law carrying liability for compensatory damages where the linkage to harm done is based merely upon participation in a product’s supply chain.
Strict liability
This arrangement
has investors buy into a non-territorial franchise of some kind and then make their money by selling franchises to other investors.
Pyramid scheme
This arrangement
has investors buy into an investment pool, whose profits appear to come from the fund’s success but in fact come from come from the cash inputs of other investors.
In this investors don’t know the game
Ponzi scheme
The four factors common to most Ponzi schemes
- Its prime agent is charismatic with excellent “people skills.”
Bernie Madoff is a former chairman of NASDAQ - Promises of a financial return are unusually high.
- Early investors realize the promised return, encouraging others to invest.
- The “profits” of early investors mostly come from the cash inputs of later investors.
The formal laws of a
politically defined society
Statute Law
Something that is actual, not by statute but by practical necessity or outcome
De facto
De facto practices created by precedent torts (well known cases used by judges in their decision making) that have yet to be formalized as statute laws.
Common Law
An employer’s common law right to terminate employment
At-will Employment
Oral statements or employee handbook statements stating that employment termination will be done according to principles of due process
Implied contract exceptions
With these, discharge is subject to state laws protecting employees circumstantially affected
Public Policy Exceptions
a collection of contractual arrangements between governments and businesses and between governments and governments.
international law
The Foreign Corrupt Practices Act (FCPA)
FCPA is enforced jointly by the US Department of Justice (DOJ) and the Securities and Exchange Commission (SEC).
The Act encompassed all the ‘secondary’ measures that were currently in use to prohibit such behavior by focusing on two distinct areas:
*Disclosure – the Act required corporations to fully disclose any and all transactions conducted with foreign officials and politicians, in line with the SEC provisions.
*Prohibition – the Act incorporated the wording of the Bank Secrecy Act and the Mail Fraud Act to prohibit the movement of funds overseas for the express purpose of conducting a fraudulent scheme
This politically correct term covers both legal and illegal contributions to politicians and bureaucrats in foreign countries to influence their purchasing decisions and their regulatory laws.
Facilitation Payments
This is created by the reception of unsolicited gifts which could have the effect of bribery
Passive Corruption
This is created by the giving of solicited or unsolicited gifts with the intent to have the effect of bribery
Active Corruption
There are three basic elements in the U. S. Federal Sentencing Guidelines for Organizations
- Penalties apply to corporations, not individuals.
- Fines are based upon a scoring system.
- Corporate officers are to receive formal ethical training.
This voluntary entity, founded in 1976, promotes ten elements common to many Business Codes of Conduct
The OECD
The Organization for Economic Cooperation and Development (OECD) has 10 divisions
(they will not be on the exam)
The Organization for Economic Cooperation and Development (OECD) has 10 divisions
The UN Global Compact
The UN Global Compact
This entity, founded in 1999, promotes
international “good corporate
citizenship” by promoting:
- human rights
- fair labor standards
- environmental protection
- a rejection of corrupt practices
To do more than required
Supererogation
McGregor’s
Theory X and Theory Y.
Theory Y – Managers assume people are inherently motivated and will feel unfulfilled if they do not have the opportunity to achieve
Theory Y Managers tend to be much more successful at motivating employees than Theory X Managers.
“The Big Five” personality traits belonging to highly motivated people.*
- Extraversion: outgoing – high sociable – talkative – assertive
- Agreeableness: good natured – cooperative – Trustful, slow to express feelings of jealousy
- Conscientiousness: achievement oriented – responsible – persevering – dependable
- Openness: adventurous – intellectual – imaginative - cultured
- Emotional Stability: calm – poised
Workplace motivation and de-motivation are based on psychological factors
Herzberg’s Two Factor Theory
