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DT3: Professional Responsibility
Many of students work and see getting a degree as a means to move up in the business world. For this DT, let’s look at the concept of ethics and society’s perceptions of professions. Our textbook has a brief discussion on ethics as related to accountants and attorneys, among others. It may seem a sad commentary that society has codified the need for ethics in my profession (practicing attorney) or the profession chosen by some of you (accounting, management, banking/finance, etc). In most jurisdictions, attorneys are required to have continuing legal education in ethics while the Sarbanes-Oxley Act speaks to accountants. My question is: Why has society mandated ethics for certain professions and not for others? Where is the line drawn whereby society has said that the ethics of lawyers and accountants, for example, are necessary but ethics for HR directors, managers, sales representatives, and others just don’t count? Or, is this an accurate statement?
DT4: Strategic Misrepresentation or Lying?
This DT sounds simple but is not: In negotiating a business deal, is “strategic misrepresentation” permissible? That is, do you have to disclose ev?erything? At what point do you cross the line between strategic misrepresentation and lying?
DT5: Judicial Review
Let’s look at the question of the power of the courts and the doctrine of judicial review. You might want to review Marbury v. Madison from your textbook or other source to get a perspective of judicial review as applies to the U.S.
In a country in which a constitution sets forth the basic powers and structure of government, some governmental body has to decide whether the laws enacted by the government are consistent with the provisions of the constitution. Is this a task best handled by the courts? Would your answer be different depending on whether the judges in such courts were elected or appointed for life? Can you think of a better alternative? Should the doctrine as set forth in Marbury v. Madison be followed today?
DT6: Minimum Contacts
Sometimes the good intentions of a State legislature overreach and violate provisions of the US Constitution. A major concern is the application of due process via the 14th Amendment to the States. That is, under the US Constitution, States cannot deprive people of life, liberty or property without due process of law. The question is ultimately, how much process is due. The below issue concerning State long arm statutes (of which Alabama’s is one of the more extreme) when dealing with foreign corporations (businesses incorporated outside of the respective State).
Long arm statutes extend the jurisdiction of courts (state courts) to include out-of-state businesses that have sufficient “minimum contacts” within the State. Legislators see this as a means to protect their citizens, while others consider such statutes as simply a curb on the free flow of commerce. The question is “how ‘minimum’ should minimum contacts be, short of violating the due process provisions of the US Constitution?” Long arm statutes attempt to apply the jurisdiction of the individual States to a broad range of non-resident business contacts with the citizens of the States. The scale runs from setting up sales offices and having employees located in a given State to having one or two sales within a State to having solicited business (even via newspapers and Internet) from the State. Where should the line be drawn for “minimum contacts” and why?
DT7: Regulation of Commerce
The concept of federalism is basic to our understanding of the authority of the federal and state governments to regulate business. The Constitution has a significantly different impact on the regulation of business by the federal government than it does on the regulation of business by state governments. The federal government was granted specific powers by the states in the Constitution while the states retained the police power.
The commerce clause has become a very broad source of power for the federal government. It also restricts the power of the states to regulate activities that result in an undue burden on interstate commerce. Determining what constitutes an undue burden can be difficult. A court balances the benefit that the state derives from its regulation against the burden it imposes on commerce. The requirements for a valid state regulation under the commerce clause are (1) that it serves a legitimate end and (2) that its purpose cannot be accomplished as well by less discriminatory means. What about a statute designed to protect natural resources, an area traditionally left open to state regulation; that is, it is not considered preempted by a federal scheme of regulation. For example, imagine a statute banning the importation of baitfish. The ban is a burden on interstate commerce, but the statute’s concern is to protect the state’s fish from nonnative predators and parasites, and there is no satisfactory way to inspect imported baitfish for parasites. If challenged would this statute likely be upheld as legitimate; that is, a legitimate exercise by a state of its police power?
DT8: Is the US Constitution dead???
Take a look at (Links to an external site.)
(a YouTube clip of an interview with Justice Antonio Scalia) concerning whether the US Constitution is dead or evolving. What do you think? That is, should the Constitution be treated as any other law?
DT9: Wrongful Interference with a Contractual Relationship
The category of business tort known as wrongful interference with a contractual rela?tionship has three basic elements: (1) an enforceable contract between two parties, (2) a third party’s knowl?edge of the contract, and (3) the third party’s inducing either of the two to break it (not merely reaping the benefits of a broken contract). The third party must interfere for the purpose of advancing his or her economic in?terest. At what point does competition turn into wrongful interference with a contractual relationship? If you are a sales representative and want to get a company’s business for your company, when would a court consider that you had crossed the line and find you guilty of wrongful interference with a contractual relationship?
DT10: Sentencing
When sentencing of convicted criminal defendants, courts consider several approaches—rehabilitation, restitution (repaying a debt to society), retribution do the crime, do the time), and incarceration (isolation from society as a mean to protect society). Rehabilitation sometimes gets considerable press under the belief that “doing time” will in some way rehabilitate a criminal defendant—especially for celebrity convicts like Martha Stewart or some even more recent performers. Others might argue that doing time in prison only produces a smarter criminal. Many States have re-instituted the death penalty for certain crimes and the number of inmates on death row continues to grow. Query: How can the concept of rehabilitation of wrongdoers be reconciled with the death penalty? That is, is the death penalty merely an admission that the US penal system does not rehabilitate convicted criminals?
DT11: Whitecollar Crime
During this past few years, former Tyco CEO Dennis Kozlowski and CFO Mark Swartz faced sentencing on charges including grand larceny and securities fraud, among others. During that time, the AP ran an article implying that the sentencing of Kozlowski and Swartz could indicate if the “pendulum has swung too far”, meaning that corporate executives convicted of felonies are being sentenced to harsher prison terms than would-be mass murders, referencing the 22-year sentence of Ahmed Ressam, who plotted to bomb the Los Angeles airport.
A couple of years ago, many pundits felt that Martha Stewart’s sentence was too harsh—but her crime did not have the impact in dollars or lives that Bernie Madoff, for example, produced. But then, Madoff was recently sentenced to 150 years at a “plush” federal prison.
Have criminal convictions and the accompanying sentencing, along with societal reaction to breaches of corporate law and business ethics, created a synergism that punishes the white-collar criminal too harshly or, as with the Madoff case, is a stiff sentence still needed to “send a message”?
DT12: International Trade
During these difficult financial times, the concerns for US jobs shipped overseas and the closings of US industries make national news. The huge (over $800B) trade surplus that China and other countries have with the US is a concern as US industries can’t survive, file bankruptcy and are sold. Historically, some Pacific Rim countries have not recognized US copyrights, patents, or trademarks, although this has changed somewhat. More recently, business interests from China are acquiring US companies in the US. Based on what you have read in Chapter 7, what intellectual property protections do US businesses have when dealing with other governments in international commerce and what should be the role of the US government or world trade organizations?
