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˹Ʊapp_Foundations of the Legal Environment of Business

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内容提示: Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United StatesMarianne Moody JenningsArizona State University ˹Ʊapp_Foundations of the Legal Environmentof BusinessMarianne M. JenningsVP/Editorial Director: Jack W. CalhounEditor-in-Chief: Rob Dewey Acquisitions Editor: Vicky TrueSr. Developmental Editor: Laura BofingerMarketing Manager: Jennifer Garamy Sr. Content Project Manager: Tamborah Moore Editorial Assistant: Krista Kellman Managing Media Editor: Pam WallaceSeni...

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Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United StatesMarianne Moody JenningsArizona State University ˹Ʊapp_Foundations of the Legal Environmentof BusinessMarianne M. JenningsVP/Editorial Director: Jack W. CalhounEditor-in-Chief: Rob Dewey Acquisitions Editor: Vicky TrueSr. Developmental Editor: Laura BofingerMarketing Manager: Jennifer Garamy Sr. Content Project Manager: Tamborah Moore Editorial Assistant: Krista Kellman Managing Media Editor: Pam WallaceSenior Media Editor: Kristen MeereSr. Frontlist Buyer, Manufacturing:Kevin KluckProduction Service: LEAP Publishing ServicesCompositor: Macmillan PublishingSolutionsRights Acquisitions Account Manager,Text: Mardell Glinski Schultz Sr. Art Director: Michelle KunklerInternal Designer: Kim Torbeck/Imbue DesignCover Designer: Kim Torbeck/Imbue Design Cover Images: Main - © DonovanReese/PhotoDisc, Inc. Inset - © Pete Turner/Stone/Getty Images, Inc.Photography Manager: Deanna Ettinger © 2010 South-Western, Cengage LearningALL RIGHTS RESERVED. No part of this work covered by thecopyright hereon may be reproduced or used in any form or byany means—graphic, electronic, or mechanical, including photo-copying, recording, taping, Web distribution, information storageand retrieval systems, or in any other manner—except as may bepermitted by the license terms herein.ExamView®is a registered trademark of eInstruction Corp.Windows is a registered trademark of the Microsoft Corporationused herein under license. Macintosh and Power Macintosh areregistered trademarks of Apple Computer, Inc. used herein underlicense.© 2010 Cengage Learning. All Rights Reserved.Cengage Learning WebTutor™ is a trademark of Cengage Learning.Library of Congress Control Number: 2008942191ISBN-13: 978-0-324-56651-2ISBN-10: 0-324-56651-4South-Western Cengage Learning5191 Natorp BoulevardMason, OH 45040USACengage Learning products are represented in Canada byNelson Education, Ltd.For your course and learning solutions, visit www.cengage.comPurchase any of our products at your local college store or at ourpreferred online store www.ichapters.comFor product information and technology assistance, contact us atCengage Learning Customer & Sales Support, 1-800-354-9706For permission to use material from this text or product,submit all requests online at www.cengage.com/permissionsFurther permissions questions can be emailed topermissionrequest@cengage.comPrinted in the United States of America1 2 3 4 5 6 712 11 10 09 08 To my roots, my mother and father, and to my branches, sprouts, gardeners, and inspiration, my husband and children, Terry, Sarah, Sam, John, and our beloved Claire This page intentionally left blank Brief ContentsPART 1Business: Its Legal, Ethical, and JudicialEnvironment 11. Introduction to Law 22. Business Ethics and Social Responsibility 203. The Court System and Dispute Resolution 48PART 2Business: Its Regulatory Environment 854. Business and the Constitution 865. Administrative Law 1106. International Law 1327. Business Crime 1508. Business Torts 1789. Product Advertising and Liability 198PART 3The Legal Environment of BusinessOperations 22110. Contracts and Sales: Introduction and Formation 22211. Contracts and Sales: Performance and Remedies 24612. Financing of Sales and Leases: Credit andDisclosure Requirements 26413. Forms of Doing Business 28814. Securities Law 31815. Business Property 344PART 4The Legal Environment of BusinessRelationships 36316. Trade Practices: Antitrust 36417. Management and Employee Rights and Laws 38418. Employment Discrimination 41619. Environmental Regulation 440Appendix The United States Constitution A-1 Glossary G-1Table of Cases T-1Table of Products, People and Companies T-7Index I-1v This page intentionally left blank viiContentspart 1Business: Its Legal, Ethical, and Judicial Environment 1CHAPTER 1Introduction to Law 2DEFINITION OF LAW 3CLASSIFICATIONS OF LAW 3Public versus Private Law 3Criminal versus Civil Law 4Substantive versus Procedural Law 4Common versus Statutory Law 4Law versus Equity 5PURPOSES OF LAW 5Keeping Order 5Influencing Conduct 5Honoring Expectations 5Promoting Equality 6Law as the Great Compromiser 6CHARACTERISTICS OF LAW 6Flexibility 6Consistency 6Pervasiveness 6THE THEORY OF LAW: JURISPRUDENCE 10SOURCES OF LAW 11Constitutional Law 11Statutory Law at the Federal Level 11Statutory Law at the State Level 12Private Laws 13Court Decisions 13INTRODUCTION TO INTERNATIONAL LAW 13Custom 14Treaties 14Private Law in International Transactions 14International Organizations 15Act of State Doctrine 15Trade Law and Policies 15Uniform International Laws 16The European Union 16RED FLAGS FOR MANAGERS 16SUMMARY 17QUESTIONS AND PROBLEMS 18CHAPTER 2Business Ethics and Social Responsibility 20WHAT IS ETHICS? 22WHAT IS BUSINESS ETHICS? 24WHAT ARE THE CATEGORIES OF ETHICAL DILEMMAS? 24Taking Things That Don’t Belong to You 24Saying Things You Know Are Not True 25Giving or Allowing False Impressions 25Buying Influence or Engaging in Conflict of Interest 26Hiding or Divulging Information 27Taking Unfair Advantage 27Committing Acts of Personal Decadence 27Perpetrating Interpersonal Abuse 27Permitting Organizational Abuse 27Violating Rules 28Condoning Unethical Actions 28Balancing Ethical Dilemmas 28RESOLUTION OF BUSINESS ETHICAL DILEMMAS 28Blanchard and Peale 28The Front-Page-of-the-Newspaper Test 29Laura Nash and Perspective 29The Wall Street Journal Model 30Other Models 30WHY WE FAIL TO REACH GOOD DECISIONS IN ETHICALDILEMMAS 30“Everybody Else Does It” 31“If We Don’t Do It, Someone Else Will” 31Preface xvAbout the Author xxvAcknowledgements xxvii Peer Review 53WHAT IF ADR DIDN’T WORK OR SUIT THE SITUATION?AN OVERVIEW OF COURTS AND THEIR ROLES 53Trial Courts: First Stop in the Judicial System 53Appellate Courts and Judicial Review 53WHAT ARE THE TYPES OF COURTS AND WHAT DETERMINESWHICH COURT HEARS WHAT CASES? 57The Concept of Jurisdiction 57Subject Matter Jurisdiction of Courts: The AuthorityOver Content 57The Federal Court System 57The Structure of the Federal Court System 59The State Court Systems 62WHERE WOULD THE COURT BE LOCATED? INPERSONAMJURISDICTION OF COURTS? 64Ownership of Property within the State 65Volunteer Jurisdiction 65Presence in the State 65WHAT WOULD IT BE LIKE IF A BUSINESSWENT TO COURT? 68THE PARTIES IN COURT 68People Who Bring Suit: Plaintiffs 68People Who Defend Against Suits: Defendants 68People Who Help People: Lawyers 68People in Charge: Judges 69People: Others Names of Parties 70THE TRIAL PROCESS 70The Complaint (Petition) 71The Summons 71The Answer 71Ending a Case Early: Judges and Motions 73Discovery 73The Trial Itself 75THE INTERNATIONAL COURTS 80RED FLAGS FOR MANAGERS 80SUMMARY 81QUESTIONS AND PROBLEMS 82viii Contents“That’s the Way It Has Always Been Done” 31“We’ll Wait until the Lawyers Tell Us It’s Wrong” 32“It Doesn’t Really Hurt Anyone” 32“I Was Just Following Orders” 32“If You Think This Is Bad, You Should Have Seen . . .” 32“It’s a Gray Area” 32SOCIAL RESPONSIBILITY: ANOTHER LAYER OF BUSINESSETHICS 33WHY BUSINESS ETHICS? 33Personal Accountability and Comfort: Business Ethicsfor Personal Reasons 34IMPORTANCE OF VALUES IN BUSINESS SUCCESS 36Ethics as a Strategy 37The Value of a Good Reputation 38Leadership’s Role in Ethical Choices 38CREATION OF AN ETHICAL CULTURE IN BUSINESS 40The Tone at the Top and an Ethical Culture 40Sarbanes-Oxley, Sentencing, and an Ethical Culture 40Reporting Lines: An Anonymous Ethics Line for an Ethical Culture 41ETHICAL ISSUES IN INTERNATIONAL BUSINESS 41RED FLAGS FOR MANAGERS 43SUMMARY 43QUESTIONS AND PROBLEMS 45CHAPTER 3The Court System and Dispute Resolution 48INTRODUCTION 49WHAT ARE THE WAYS FOR RESOVLING A BUSINESSDISPUTE? TRYING ALTERNATIVES TO LITIGATION 50Arbitration 50Mediation 52Medarb 52The Minitrial 52Rent-a-Judge 52Summary Jury Trials 53Early Neutral Evaluation 53part 2Business: Its Regulatory Environment 85CHAPTER 4Business and the Constitution 86THE U.S. CONSTITUTION 87An Overview of the U.S. Constitution 87Articles I, II, and III—The Framework for Separation of Powers 87Other Articles 88The Bill of Rights 88THE ROLE OF JUDICIAL REVIEW AND THECONSTITUTION 88CONSTITUTIONAL LIMITATIONS OF ECONOMICREGULATIONS 89The Commerce Clause 89Constitutional Standards for Taxation of Business 94 Contents ixSTATE VERSUS FEDERAL REGULATION OF BUSINESS—CONSTITUTIONAL CONFLICTS: PREEMPTION AND THESUPREMACY CLAUSE 96APPLICATION OF THE BILL OF RIGHTS TO BUSINESS 97Commercial Speech and the First Amendment 97First Amendment Protection for Advertising 98First Amendment Rights and Profits fromSensationalism 100First Amendment Rights and Corporate Political Speech 101Eminent Domain: The Takings Clause 102Procedural Due Process 105Substantive Due Process 106THE ROLE OF CONSTITUTIONS IN INTERNATIONAL LAW 106RED FLAGS FOR MANAGERS 107SUMMARY 107QUESTIONS AND PROBLEMS 108CHAPTER 5Administrative Law 110WHAT ARE ADMINISTRATIVE AGENCIES? 111ROLES OF ADMINISTRATIVE AGENCIES 112Specialization 112Due Process 112Social Goals 114LAWS GOVERNING ADMINISTRATIVE AGENCIES 114Administrative Procedures Act 114Freedom of Information Act 114Federal Privacy Act 114Government in the Sunshine Act 115Federal Register Act 115THE FUNCTIONS OF ADMINISTRATIVE AGENCIESAND BUSINESS INTERACTION 116Providing Input When Agencies Are PromulgatingRegulations 116BUSINESS RIGHTS IN AGENCY ENFORCEMENT ACTION 125Licensing and Inspections 125Enforcement 125RED FLAGS FOR MANAGERS 127SUMMARY 128QUESTIONS AND PROBLEMS 129CHAPTER 6International Law 132SOURCES OF INTERNATIONAL LAW 133Types of International Law Systems 133The Roots of Commerce and Law: NonstatutorySources of International Law 134Contracts for the International Sale of Goods (CISG) 134Treaties, Trade Organizations, and Controls on International Trade 134Trust, Corruption, Trade, and Economics 137RESOLUTION OF INTERNATIONAL DISPUTES 141PRINCIPLES OF INTERNATIONAL LAW 141Sovereign Immunity 141Protections for U.S. Property and Investment Abroad 143Repatriation 143Forum Non Conveniens, or “You Have the Wrong Court” 144Conflicts of Law 144PROTECTIONS IN INTERNATIONAL COMPETITION 144Antitrust Laws in the International Marketplace 144Tariffs 145Protections for Intellectual Property 145Criminal Law Protections 146RED FLAGS FOR MANAGERS 147SUMMARY 147QUESTIONS AND PROBLEMS 148CHAPTER 7Business Crime 150WHAT IS BUSINESS CRIME? THE CRIMES WITHINA CORPORATION 151WHO IS LIABLE FOR BUSINESS CRIME? 155Federal Laws Targeting Officers and Directors for Criminal Accountability 156THE PENALTIES FOR BUSINESS CRIME 156Reforming Criminal Penalties 157Corporate Sentencing Guidelines: An Ounce of Prevention Means a Reduced Sentence 158ELEMENTS OF BUSINESS CRIME 159Mens Rea 159Mens Rea, Conscious Avoidance, and CorporateOfficers 161Actus Reus 162EXAMPLES OF BUSINESS CRIMES 162Theft and Embezzlement 162Obstruction of Justice 162Computer Crime 163Criminal Fraud 166Commercial Bribery 166Racketeer Influenced and Corrupt Organizations(RICO) Act 166Business Crime and the USA Patriot Act 166Federal Crimes 167 x ContentsState Crimes 167PROCEDURAL RIGHTS FOR BUSINESS CRIMINALS 167Fourth Amendment Rights for Businesses 167Fifth Amendment Rights for Businesses 171RED FLAGS FOR MANAGERS 174SUMMARY 175QUESTIONS AND PROBLEMS 176CHAPTER 8Business Torts 178WHAT IS A TORT? ROOTS OF LAW AND COMMERCE 179Tort Versus Crime 179Types of Torts 179THE INTENTIONAL TORTS 180Defamation 180Contract Interference 183False Imprisonment 184Intentional Infliction of Emotional Distress 184Invasion of Privacy 184NEGLIGENCE 186Element One: The Duty 186Element Two: Breach of Duty 188Element Three: Causation 190Element Four: Proximate Cause 190Element Five: Damages 192Defenses to Negligence 192TORT REFORM 193STRICT LIABILITY 194RED FLAGS FOR MANAGERS 194SUMMARY 194QUESTIONS AND PROBLEMS 195CHAPTER 9Product Advertising and Liability 198DEVELOPMENT OF PRODUCT LIABILITY 199ADVERTISING AS A CONTRACT BASIS FOR PRODUCTLIABILITY 199Express Warranties 199part 3The Legal Environment of Business Operations 221Federal Regulation of Warranties and Advertising 202Content Control and Accuracy 202FTC Control of Performance Claims 203FTC Control of Celebrity Endorsements 204FTC Control of Bait and Switch 204FTC Control of Product Comparisons 204FTC Remedies 206Ad Regulation by the FDA 206Professional Ads 206CONTRACT PRODUCT LIABILITY THEORIES: IMPLIED WARRANTIES 206The Implied Warranty of Merchantability 206The Implied Warranty of Fitness for a ParticularPurpose 208Eliminating Warranty Liability by Disclaimers 208STRICT TORT LIABILITY: PRODUCT LIABILITY UNDERSECTION 402A 209Unreasonably Dangerous Defective Condition 210Reaching the Buyer in the Same Condition 211The Requirement of a Seller Engaged in a Business 211PRIVITY ISSUES IN TORT THEORIESOF PRODUCT LIABILITY 211NEGLIGENCE: A SECOND TORT FOR PRODUCTLIABILITY 212DEFENSES TO PRODUCT LIABILITY TORTS 213Misuse or Abnormal Use of a Product 213Contributory Negligence 213Assumption of Risk 213PRODUCT LIABILITY REFORM 215FEDERAL STANDARDS FOR PRODUCT LIABILITY 216Consumer Product Safety Commission 216INTERNATIONAL ISSUES IN PRODUCT LIABILITY 216RED FLAGS FOR MANAGERS 217SUMMARY 217QUESTIONS AND PROBLEMS 218CHAPTER 10Contracts and Sales: Introduction andFormation 222WHAT IS A CONTRACT? 223SOURCES OF CONTRACT LAW 223Common Law 223The Uniform Commercial Code 224Evolving E-Commerce Contract Laws 226TYPES OF CONTRACTS 226Bilateral Versus Unilateral Contracts 226 Contents xiExpress Versus Implied Contracts (Quasi Contracts) 227Void and Voidable Contracts 227Unenforceable Contracts 227FORMATION OF CONTRACTS 228Offer 228Acceptance: The Offeree’s Response 234E-Commerce and Contract Formation 236Consideration 238Contract Form: When Writing or Record Is Required 239ISSUES IN FORMATION OF INTERNATIONALCONTRACTS 242RED FLAGS FOR MANAGERS 243SUMMARY 243QUESTIONS AND PROBLEMS 244CHAPTER 11Contracts and Sales: Performance and Remedies 246DEFENSES IN CONTRACT FORMATION 247Capacity 247Misrepresentation 249Fraud or Fraudulent Misrepresentation 250Duress 252Undue Influence 252Illegality and Public Policy 252CONTRACT PERFORMANCE 254When Performance Is Due 254Standards for Performance 254E-Commerce: Payments Have Changed 255When Performance Is Excused 256CONTRACT REMEDIES 258THIRD-PARTY RIGHTS IN CONTRACTS 258INTERNATIONAL ISSUES IN CONTRACT PERFORMANCE 259Assuring Payment 259Assuring Performance: International Peculiarities 260RED FLAGS FOR MANAGERS 260SUMMARY 261QUESTIONS AND PROBLEMS 262CHAPTER 12Financing of Sales and Leases: Credit and Disclosure Requirements 264ESTABLISHING A CREDIT CONTRACT 266STATUTORY REQUIREMENTS FOR CREDIT CONTRACTS 266State Usury Laws 266The Subprime Lending Market 266The Equal Credit Opportunity Act 268The Truth in Lending Act 270Special Disclosures and Protections for ServiceMembers 273Credit Advertising, Solicitation, and DisclosureProtections 275Fair Credit Billing Act 276Fair Credit Reporting Act 277Consumer Leasing Act 280ENFORCEMENT OF CREDIT TRANSACTIONS 280The Use of Collateral: The Security Interest 280Collection Rights of the Creditor 281Suits for Enforcement of Debts 282THE END OF THE LINE ON ENFORCEMENTOF DEBTS: BANKRUPTCY 283INTERNATIONAL CREDIT ISSUES 284RED FLAGS FOR MANAGERS 284SUMMARY 284QUESTIONS AND PROBLEMS 285CHAPTER 13Forms of Doing Business 288SOLE PROPRIETORSHIPS 289Formation 289Sources of Funding 289Liability 289Tax Consequences 289Management and Control 291Transferability of Interest 291PARTNERSHIPS 291Formation 291Sources of Funding 293Partner Liability 293Tax Consequences in Partnerships 295Management and Control 295Transferability of Interests 296Dissolution and Termination of the Partnership 296LIMITED PARTNERSHIPS 296Formation 296Sources of Funding 297Liability 297Tax Consequences 298Management and Control 298Transferability of Interests 298Dissolution and Termination of a Limited Partnership 298CORPORATIONS 299Types of Corporations 299The Law of Corporations 299Formation 300 xii ContentsCapital and Sources of Corporate Funds 301Corporate Tax Consequences 304Corporate Management and Control: Directors andOfficers 304Corporate Management and Control: Shareholders 309The Dissolution of a Corporation 310LIMITED LIABILITY COMPANIES 310Formation 311Sources of Funding 311Liability 311Tax Consequences 311Management and Control 311Transferability of Interest 311Dissolution and Termination 311LIMITED LIABILITY PARTNERSHIPS 311Formation 311Sources of Funding 312Liability 312Tax Consequences 312Management and Control 312Transferability 312Dissolution and Termination 312INTERNATIONAL ISSUES IN BUSINESS STRUCTURE 312RED FLAGS FOR MANAGERS 313SUMMARY 313QUESTIONS AND PROBLEMS 315CHAPTER 14Securities Law 318HISTORY OF SECURITIES LAW 320PRIMARY OFFERING REGULATION: THE 1933 SECURITIESACT 320What Is a Security? 320Regulating Primary Offerings: Registration 321Regulating Primary Offerings: Exemptions 321What Must Be Filed: Documents and Information for Registration 323Violations of the 1933 Act 324THE SECURITIES EXCHANGE ACT OF 1934 330Securities Registration 330Periodic Filing Under the 1934 Act: Those AlphabetReports 331The 1934 Act Antifraud Provision: 10(b) 331Insider Trading and Short-Swing Profits 335Regulating Voting Information 336THE FOREIGN CORRUPT PRACTICES ACT 336STATE SECURITIES LAWS 336INTERNATIONAL ISSUES IN SECURITIES LAWS 339RED FLAGS FOR MANAGERS 339SUMMARY 340QUESTIONS AND PROBLEMS 341CHAPTER 15Business Property 344WHAT CAN A BUSINESS OWN? PERSONAL PROPERTY:THE TANGIBLE KIND 345Types of Personal Property 345Transfer of Personal Property 346WHAT CAN A BUSINESS OWN? PERSONAL PROPERTY: THE INTANGIBLE OR INTELLECTUAL PROPERTY 346Protection for Business Intellectual Property 346Cyber Infringement 355INTERNATIONAL INTELLECTUAL PROPERTY ISSUES 357Patent Protection 357Trademark Protection 357Copyrights in International Business 358ENFORCING BUSINESS PROPERTY RIGHTS 358Product Disparagement 358Palming Off 359Misappropriation 359RED FLAGS FOR MANAGERS 359SUMMARY 360QUESTIONS AND PROBLEMS 360part 4The Legal Environment of Business Relationships 363CHAPTER 16Trade Practices: Antitrust 364WHAT INTERFERES WITH COMPETITION? COVENANTS NOTTO COMPETE 365WHAT INTERFERES WITH COMPETITION? AN OVERVIEWOF THE FEDERAL STATUTORY SCHEME ON RESTRAINTOF TRADE 366What Types of Activities Do the Federal Laws Regulate? 367 Contents xiiiHORIZONTAL RESTRAINTS OF TRADE 368Monopolization 368Price Fixing 370Divvying Up the Markets 371Group Boycotts and Refusals to Deal 371Merging Competitors and the Effect on Competition 371VERTICAL TRADE RESTRAINTS 372Resale Price Maintenance 372Monopsony 375Sole Outlets and Exclusive Distributorships 375Customer and Territorial Restrictions 376Tying Arrangements 376Price Discrimination 377Vertical Mergers 378WHAT ARE THE PENALTIES AND REMEDIES FORANTICOMPETITIVE BEHAVIOR? 378Criminal Penalties 379Equitable Remedies 379Private Actions for Damages 379WHAT LIES AHEAD IN ANTICOMPETITIVE BEHAVIOR:THE ANTITRUST MODERNIZATION COMMISSION 380ANTITRUST ISSUES IN INTERNATIONAL COMPETITION 380RED FLAGS FOR MANAGERS 381SUMMARY 381QUESTIONS AND PROBLEMS 382CHAPTER 17Management and Employee Rights and Laws 384THE COMMON LAW ISSUES IN THE EMPLOYMENTRELATIONSHIP: AGENCY 386Names and Roles: Agency Terminology 386Creation of the Agency Relationship 387The Principal-Agent Relationship 390Termination of the Agency Relationship 398Termination of Agents Under Employment at Will 398THE STATUTORY RIGHTS AND PROTECTIONS INTHE EMPLOYMENT RELATIONSHIP 400Wages and Hours Protection: The Fair Labor StandardsAct 400Wages Protection: The Equal Pay Act of 1963 404LAWS ON WORKPLACE SAFETY: THE OCCUPATIONALSAFETY AND HEALTH ACT 404Employee Pensions, Retirement, and Social Security 404Unemployment Compensation 406Workers’ Compensation Laws 406Statutory Protections of Employees Through LaborUnions 407INTERNATIONAL ISSUES IN EMPLOYMENT LAW 410Immigration Laws 410RED FLAGS FOR MANAGERS 411SUMMARY 411QUESTIONS AND PROBLEMS 413CHAPTER 18Employment Discrimination 416HISTORY OF EMPLOYMENT DISCRIMINATION LAW 417EMPLOYMENT DISCRIMINATION: TITLE VII OF THE CIVILRIGHTS ACT 418Application of Title VII 418THEORIES OF DISCRIMINATION UNDER TITLE VII 419Disparate Treatment 419Disparate Impact 421Pattern or Practice of Discrimination 421SPECIFIC APPLICATIONS OF TITLE VII 422Sex Discrimination 422The Pregnancy Discrimination Act 424Religious Discrimination 426ANTIDISCRIMINATION LAW AND AFFIRMATIVEACTION 427What Is Affirmative Action? 427Who Is Required to Have Affirmative Action Programs? 427Affirmative Action Backlash: The Theory of ReverseDiscrimination 427THE DEFENSES TO A TITLE VII CHARGE 428Bona Fide Occupational Qualification 428Seniority or Merit Systems 428Aptitude and Other Tests 429Misconduct 429ENFORCEMENT OF TITLE VII 429Steps in an EEOC Case 429Remedies Available Under Title VII 430OTHER ANTIDISCRIMINATION LAWS 431Age Discrimination in Employment Act of 1967 431Equal Pay Act of 1963 431Communicable Disease in the Workplace 431Rehabilitation Act of 1973 431Americans with Disabilities Act 431The Family and Medical Leave Act 434THE GLOBAL WORKPLACE 435RED FLAGS FOR MANAGERS 436SUMMARY 436QUESTIONS AND PROBLEMS 437 xiv ContentsCHAPTER 19Environmental Regulation 440COMMON LAW REMEDIES AND THE ENVIRONMENT 441Nuisances 441EMF and Nuisances 442NIMBYs and Nuisances 443STATUTORY ENVIRONMENTAL LAWS 443Air Pollution Regulation 443Water Pollution Regulation 445Solid Waste Disposal Regulation 446Environmental Quality Regulation 451Other Federal Environmental Regulations 451STATE ENVIRONMENTAL LAWS 454ENFORCEMENT OF ENVIRONMENTAL LAWS 454Parties Responsible for Enforcement 455Criminal Sanctions for Violations 455Group Sites: The Effect of Environmentalists 455INTERNATIONAL ENVIRONMENTAL ISSUES 456The EU and Environmentalism 456ISO 14000 456The Kyoto Protocol 457The Precautionary Principle 457RED FLAGS FOR MANAGERS 457SUMMARY 458QUESTIONS AND PROBLEMS 459Appendix The United States Constitution A-1Glossary G-1Table of Cases T-1Table of Products, People, and Companies T-7Index I-1 PrefaceA World of Daily Legal and Ethical IssuesThe business world seems to change on a daily basis. From the way the stock mar-ket moves to the litigation between eBay and Tiffany’s, there is always businessnews. Siemens settles bribery charges and AIG agrees to cancel all of its expensiveexecutive retreats because of the taxpayers’ concerns about overspending by thecompany following the government bailout and investment in AIG. Six years agowe were dealing with the collapses of Enron, WorldCom, Adelphia, HealthSouth,Parmalat, Arthur Andersen, Kmart, and others. Just months before going to presswith this edition, we lost Bear Stearns, Countrywide Mortgage, New CenturyFinancial, Lehman Brothers, Fannie Mae, and other companies to high-risk invest-ments, too much debt, and too little disclosure. The SEC is investigating stock op-tions backdating at over 200 companies, including a settlement with AppleComputer. The NBAhas had a scandal with one of its referees, major league base-ball has everything from grand juries to Congressional hearings on player steroiduse, and the NFL finds one of its star players entering a guilty plea to federalcharges related to dog fighting. Members of Congress have entered guilty pleas toeverything from accepting payoffs to wire fraud. One senator was convicted of notreporting substantial gifts and another senator is under investigation for his rela-tionships with a subprime lender. The issues of law and ethics are still at theforefront of business, sports, and government. It has become a tall order just tokeep up with all the events!These companies and organizations and all the individuals working in them cer-tainly could have benefited from understanding and keeping at the forefront of theirdecision processes the basics of law and ethics! The legal and ethical environmentsof business are center stage. Congress made massive regulatory reform a reality in2002 with the passage of the Sarbanes-Oxley legislation on corporate governance,accounting regulation, and criminal penalties. In 2008, Congress reformed every-thing from mortgage lending to federal desposit insurance at banks. The USAPatriot Act continues to have an effect on businesses in everything from moneytransfers to hiring employees. Business is even more international, and we are wit-nessing the need for better regulation of production processes abroad. U.S. toy-maker Mattel had to recall 19 million of its made-in-China toys because the facto-ries there had used lead-based paint, something that is legal in China butprohibited in the United States. The world and business continue to change andgrow, but law and ethics have retained their role and importance. In fact, nowmore than ever, we need to understand the legal and ethical issues that affect ourbusinesses and our lives. The knowledge base and even the questions in law andethics remain the same, but the underlying facts have changed. For example, westill debate the social responsibility role of business. Now we raise that issue in thecontext of whether Yahoo! should do business in China when the governmentforces disclosure of customer identity because it believes the Yahoo! customers areusing the service for dissident activities. We have new fact patterns with changingxv events and technology, but we are still debating the same issue of human rightsand the role of business in countries in which there are violations of those basictenets of social responsibility. We still have the question of when a contract isformed, but now we face that question with “point and click” technology ratherthan faxes and letters. We continue to be concerned about our privacy as con-sumers, but now we apply the law to our use of the Internet for our purchases andcorrespondence and wonder whether companies can use the information they findthere. Years after the Napster case was settled, we still wonder about the extent ofcopyright law but now YouTube is the focus of copyright issues and we haveplenty of lawsuits and injunctions for the items posted there. The world is different, but law and ethics remain a constant framework intowhich we fit the issues of the day. In the materials that follow, you have the chanceto understand the marvelous stability of this framework and the ease with whichyou can apply it to this very different world. Be sure to review this text’s uniquefeatures, such as the “Consider” tutorials and the ethics issues. Building the Bridge: Applying Legal and Ethical Reasoning to Business AnalysisMy students recently completed their midterm exam—a review of what happenedwith Mattel and its recalled toys. These students are in the second year of their mas-ters degree studies. They have been trained in economics, marketing, management,and finance. But as they completed their analysis of what went wrong and whywith the world’s largest toy manufacturer, they had an epiphany. A company canget the finance issues right (Mattel saved 30 percent in production costs by out-sourcing to China), have the right brand appeal and great products, and even yieldterrific sales figures. However, it can all fall apart over the legal issues. China’s stan-dards for paint are different from those of the United States—lead paint is not pro-hibited there. And the contracts between U.S. companies and Chinese productionfacilities allowed those factories there to use the paint unless the buyer specifiedotherwise. The law of contracts and the differing legal standards in internationalbusiness were at the heart of this major setback for a company, one that wouldcause a 25 percent drop in its stock. When it comes to problems with safety andtoys, my students soon realized there is strict liability for the error and additionalfinancial implications. The students were well trained in economic theory, supplychain management, cash flow issues, and market capitalization. They are verycapable business students. However, they did not realize until this midterm examhow much of business turns on anticipating the legal issues and getting them re-solved correctly. They also realized that all of our discussions of ethics and socialresponsibility had a critical role in doing busines and in making business decisions.TANSTAAFL—“There ain’t no such thing as a free lunch” when it comes to inter-national outsourcing. There are costs associated with using the much cheaper laborand factories in other countries. Those costs come from legal issues, which, if han-dled poorly, can affect a company’s value and tarnish its brand name.Why couldn’t these students see the interconnection and critical roles of lawand ethics in business until this case for their midterm? It was not for lack of expo-sure to the law. I taught my course “by the book,” so to speak. Students could re-cite the components of a valid contract, rattle off the requirements for bankruptcy,recall from memory the antitrust statutes. Yet, I was coming to realize, this rotexvi Preface knowledge was not enough. One of my best former students, who had gone on tomedical school, came to me perplexed about her office lease. She said that thecomplex in which she wanted to open her practice had a “no advertising” policy.In fact, she said that when she toured the premises with a leasing agent, the leas-ing agent turned to her and said, “You’re not one of those doctors who advertises,are you? Because if you are, we can’t lease to you. We have a policy against it.” Oneof my best students, who knew the antitrust statutes well, could not apply them toher everyday business. Worse, perhaps, she could not recognize when to applythese statutes: She did not see the antitrust implications of the agent’s statementsnor the problems with the physicians in the complex taking such an approach toscreening tenants.I reached the conclusion that there were shortcomings in the standard ap-proach to teaching business students law and ethics. Students were not ignorant ofthe law; rather, they simply lacked the necessary skills to recognize legal and ethi-cal issues and to apply their knowledge of law and ethics to business decisionmaking. As instructors, we were not integrating legal and ethical reasoning withbusiness analysis. My conclusion led me to develop my own materials for class-room use and eventually led to the publication of the book, Business: Its Legal,Ethical, and Global Environment. But, when I went back to teaching undergraduatesat the sophomore level, I realized that book, now in its eighth edition, could be fur-ther adapted for the undergraduate level. They need less material, more help withproblem solving, and a different way of summarizing the material in the chapters.So, this book was born to serve the needs of this generation of undergraduates. The same bridge approach is here in this new approach, but the sentences areshorter and complex terms and ideas are explained at a different level. For all areasof law and ethics, this book answers the question: How does this concept affect abusiness? This book builds a bridge between knowledge of law and ethics and ap-plication of both in business. My 32 years of teaching law and ethics finallybrought this realization: business ethics is not easily grasped nor practiced in busi-ness because we depersonalize ethical issues. If we just allow the company or or-ganization to make the decision, our ethics are not in question; the company’s are.The ethical issues in the book require students to bring ethical issues into theirlives, their circumstances, their world. This feature also forces them to answer thisquestion in a wide variety of contexts, “If it were you, and you were faced with thedilemma and required to make a decision, what would you do?”Up-to-Date Content, New Approaches,BusinessApplications, and Learning AidsThe organizational structure of this text is the result of three rounds of feedbackfrom faculty who teach at the undergraduate level. There are four parts to the textand each part begins with an overview that helps students see the importance ofthese areas of the law in running a business. Part I offers the student an overviewof the legal, ethical, and judicial environments of business. Part II covers the regu-latory environments of business. Part III covers the laws involved in business op-erations, spanning everything from the contracts in the supply chain to the rightsof shareholders in a corporation. Part IV covers the legal and ethical issues in busi-ness relationships, covering everything from competitors to employees.Preface xvii EthicsBusiness Ethics and Social Responsibility (Chapter 2) offers up-to-date examplesand insights on the application of ethics ...

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