mgt 220

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131 Terms

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alternative dispute resolution
ways of solving an issue with the intent to avoid litigation – Negotiation – Meditation – Arbitration

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negotiation
process by which parties with nonidentical preferences allocate resources through interpersonal activity and joint decision making

typically the first step to the alternative dispute resolution
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dyadic negotiation
two individuals interacting with one another in an attempt to resolve a dispute – What is for dinner – What movie to watch
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group negotiation
more than two individuals or parties (tends to be more complex, time-consuming, and challenging to resolve) – What your group project topic will be – Where to go on spring break
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relational goals
focused on building, maintaining, or repairing a partnership, connection, or rapport with another party
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outcome goals
concentrate on achieving certain end results
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integrative negotiation
“win-win”
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distributive negotiation
“win-lose”
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zero sum negotiation
“win-lose”
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Thomas-Kilmann Conflict Mode Instrument (TKI)
questionnaire that provides a systematic framework for categorizing five broad negotiation styles

– __**Forcing**__ – high concern for self, low concern for other party – __**Collaborating**__ – high concern and care for both itself and other party – __**Compromising**__ – parties share some concerns for both themselves and the other party – __**Avoiding**__ – low concern for itself and for the other party – __**Yielding**__ – low concern for self, high concern for the other party
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Federal Arbitration Act
\-A national policy that favors arbitration and enforces situations in which parties have contractually agreed to participate in arbitration

– A party who has decided to be subject to binding arbitration relinquishes its constitutional right to settle their dispute in court

– Allows parties to confirm their awards
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Uniform Arbitration Act
-Provides a uniform approach to the way states handle arbitration

– Only been adopted in 35 states

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mediation
A method of dispute resolution that relies on an impartial third-party decision-maker, known as a mediator, to settle a dispute
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plaintiff
(π) – the party initiating suit
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defendant
(Δ) – the party accused of wrongdoing
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steps of mediation

1. Mediator’s Opening Statement: introduce yourself and explain goals of
mediation
2. Opening Statements of π and Δ: both parties speak, without being
interrupted.
3. Joint Discussion: mediator tries to get the two parties to speak to one
another and will guide the discussion toward a mutually amicable solution.
4. Private Caucus: each party meets and speaks privately with the mediator.
5. Joint Negotiation: the parties are joined again in the same room, and the
mediator presents any newly discovered insight to guide them toward an
agreement.
6. Closure: an agreement is reached, or it is determined they cannot agree.
Arbitration
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arbitration
The private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments
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arbitrator
an individual who is responsible for making a decision on how to resolve a dispute and who has the ability to decide on an award, or a course of action that the arbiter believes is fair, given the situation
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Voluntary Arbitration
the disputing parties have decided, of their own accord, to seek arbitration as a way to potentially settle their dispute
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involuntary arbitration
forced upon them by an outside party (such as being required to attempt arbitration before resorting to litigation)
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binding arbitration
the decision of the arbitrator is final, and except in rare circumstances, neither party can appeal the decision through the court system
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non-binding arbitration
the arbitrator’s award can be thought of as a recommendation
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bare bones arbitration award
arbitrator states his or her decision
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reasoned arbitration award
award lists the rationale behind the decision and award amount
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writ of execution
a court order that directs law enforcement personnel to take action in an attempt to satisfy a judgment eon by the plaintiff
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garnishment
a court order that seizes the money, typically wages, to satisfy a debt
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liens
gives the entitled party in a judgment the right to seize the property of another to satisfy a debt
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**litigation**
A process where two disputing parties have their issue(s) heard by a judge or a jury, who decides the outcome
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prosecution
part initiating the suit, which represents the people within a state or federal government
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pro se litigant
an individual who represents themself
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first duty attorneys
the administration of justice – They owe their clients zealous advocacy, but the advocacy is constrained within the bounds placed on them as an officer of the court

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Jury Duty
determine the truth in any situation – Who said/did what, why, and when -Group of unbiased citizens who get to hear both sides of a case and decide who wins
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grand jury
a group of citizens convened by the prosecution in serious criminal cases to determine (1) whether probable causes exists to believe that a crime has occurred, and (2) whether it’s more likely than not that the defendant committed the crime
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petit jury
hears both sides of the case and determines guilt or innocence
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issues with jury
Hard to find people who haven’t heard/seen anything about a case – Burden placed on jurors’ personal lives • No legal requirement that an employer continue to pay a worker on jury duty – Composition of the jury • Professions Automatically Exempt – Active Duty Military – Police Officers – Firefighters – Public Officers

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ripe
on time
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not yet ripe
too early
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moot
late
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subject matter jurisdiction
the legal authority to hear and decide a case or controversy
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personal jurisdiction
the power of the court to compel the parties to appear in court – Requires parties to have minimum contacts with the state where the case is filed
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international shoe co. v. Washington
HELD: a corporation may be subject to the jurisdiction of a state court if it has “minimum contacts” with that state. – Lack of minimum contacts violates the nonresident Δ’s constitutional right to due process and “offends traditional notions of fair play and substantial justice.” – Incorporated in the State – Have a physical location in the State – Do business in the State
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long arm statutes
set forth the procedure by which out-of-state defendants can be required to appear before a court
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service of process
the process by which a Δ is notified that it is being sued
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motion
a request to the court to rule on an issue or claim
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motion for default judgement
π requests court to enter judgment in its favor because the Δ did not show up and defend its case
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Motion to Dismiss for Failure to State a Claim
Δ argues that even if everything in the complaint is factually true, π is not entitled to legal relief
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Motion for Judgment on the Pleadings
asks the court to determine whether a genuine issue of material fact exists that allows the case to proceed
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motion for summary judgement
asks the court to enter judgment on a party’s favor instead of trying the case
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statue of limitations
requires lawsuits to be brought within a specified period of time
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affidavit
a written statement made under oath
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process of a trial
In civil litigation, over 90% of cases filed are resolved or settled before trial Step 1: select a jury (voir dire) Step 2: opening statements Step 3: examination Step 4: closing arguments Step 5: jury instructions Step 6: jury deliberates Step 7: verdict (or mistrial) Step 8: judgment
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Res Judicata
once a dispute is litigated and resolved, the parties cannot relitigate the issue again
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corporate social responsibility (CSR)
The idea that a business is given the opportunity and privilege to make the world a better place – Donation of funds – Volunteerism – Implementation of Environmentally Friendly Policies
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first national constitution
articles of confederation
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federalism
a political system that divides authority to govern between the state and federal governments
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enumerated powers
powers reserved to the federal government in Article 1, Section 8
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tenth amendment
powers reserved to the federal government in Article 1, Section 8
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concurrent power
powers that are shared by both the federal and state government
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legislative branch
congress makes the law
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executive branch
president carries out the law
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judicial branch
supreme court interprets the law
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marbury v. madison
Arguably the most important decision in American constitutional law • Established U.S. federal judges’ authority to review the constitutionality of Congress’s legislative acts – Did not invent or create judicial review – Judicial review was widely accepted in Colonial America
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federal preemption
if a state law conflicts with the U.S. Constitution, the state law is declared invalid
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Supremacy Clause
created federal system of preemption
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commerce clause
Grants Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
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police power
the residual powers granted to each state to safeguard the welfare of their inhabitants
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Dormant Commerce Clause
limitation on the authority of states to regulate in areas that impact interstate commerce
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bill of rights
first ten amendments

\-First Amendment: free speech, press, religion, and peaceable assembly • Second Amendment: right to bear arms • Third Amendment: government cannot quarter soldiers in private houses • Fourth Amendment: government can only issue warrants with probable cause & protects US citizens from unwarranted search & seizure • Fifth Amendment: establishes rights of due process • Sixth Amendment: provides citizens with the right to an expeditious public trial, the right to an attorney, and the right to an impartial jury • Seventh Amendment: right to a trial by jury for common lawsuits involving monetary value of $20 • Eighth Amendment: prohibits cruel and unusual punishment • Ninth Amendment: rights in Bill of Rights not remove other rights • Tenth Amendment: reservation of authority to states
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Corporate Political Speech
any speech used to support political agendas or candidates
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Unprotected Speech
obscenities, defamation, and slanderous speech
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Commercial Speech
conveys information pertaining to sale of goods and services
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Pervasive-Regulation Exception
administrative agencies may conduct warrantless searches of businesses attached to industries that have a long history of pervasive regulation
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due process law
offers extensive protection to commercial enterprises – States that the government cannot take an individual’s life, liberty, or property without due process of law
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Substantive Due Process
laws that will deprive an individual of their life, liberty, or property must be fair and not arbitrary
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Procedural Due Process
governments must use fair procedures when depriving an individual of their life, liberty, or property
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Takings Clause
when the government seizes private property for public use, it is required that the owner be paid just compensation
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Privilege Against Self-Incrimination
\-Only applies to sole proprietorships that are not legally distinct from the individual who owns them – Custodians and agents of corporations do not enjoy this privilege
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white collar crime
crimes committed by business professionals that are characterized by deceit, concealment, or violation of trust…generally fraud
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ponzi schemes
investing scams that promise investors low-risk investment opportunities with a high rate of return
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larceny
a person unlawfully takes the personal property of another person or a business
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embezzlement
a person has been entrusted with an item of value and then either (1) refuses to return it, or (2) does not return the item of their own free will
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racketeering
loan-sharking, money laundering, blackmailing, etc
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mens rea
the criminal, guilty, or “wrongful” mind
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actus rea
the criminal, guilty, or “wrongful” act
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civil law
addresses behaviors that cause an injury to the private rights of individuals in areas such as contracts, property, and the person
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malpractice
professional negligence
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tort
a civil wrong to a person or property other than a breach of contract – Damage/injury could be the result of a criminal action – Criminal element of the conduct is not tried in the civil lawsuit – Finding of liability does not necessarily translate to guilt in a criminal case
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tortfeasor
the person committing the civil wrong (ultimately becomes Δ)
• Three Types of Torts:


1. Intentional Torts
2. Negligence
3. Strict Liability
• Elements of a Tort:
– Damages
– Compensation
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negligence
the failure to exercise the standard of care that a reasonably prudent person could have exercised in a similar situation
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strict liability
liability without fault – Irrelevant how carefully Δ acted
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Abnormally Dangerous Activity Standard
assigns responsibility when an \\ individual engages in some form of dangerous activity, even if care is taken to avoid the mishap \\ – Using Dynamite \\ – Keeping Wild Animals \\ – Using Nuclear & Radioactive Materials
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agreement
a mutual understanding between two or more parties about their rights and duties toward each other
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contract
a legally enforceable agreement between two or more parties – When broken, or breached, the injured party can seek damages
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bilateral contract
both parties make a promise of performance
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unilateral contract
one party makes a promise that the other party can accept only by doing something
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elements of a contract
\-Offer: a conditional promise to do or refrain from doing something now or in the future

\-Acceptance: an implied or express act that shows willingness to be bound by the terms of an offer

\-Consideration: the bargained-for exchange of something of value that shows the parties intend to be bound by the contract

\-Capacity: mental state of mind sufficient to understand that a contract is made and that it has legal consequences -

\-Legality: the promises must be legal
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lapsed offer
an offer that is no longer valid because a reasonable time to accept it has expired
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acceptance
an implied or express act that shows willingness to be bound by the terms of an offer
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counter-offer
If an acceptance changes, adds, or modifies terms of the offer
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mutual assent
offer+acceptance