CitationCorrect. All needed information is provided.Proc His.docx

Citation
Correct. All needed information is provided.
Proc History
The procedural history should show how the case got before the
appellate court. You get almost there! But don't forget to say
that the doctor appeals the district court decision.
Issues
There are three issues. Identify each issue and the relevant law
under which the issue arises.
You have all three issues, and you are essentially right in all
three, but remember that issues in appellate cases ask whether
the lower court made the right decision on key legal questions.
So, issue two is a little too broad--whether a retaliation claim
under FCRA is barred by the Florida statute immunizing public
hospitals from suit is closer. And the third is right but could be
more precise--what is the law/claim under which the
interference with an employment relationship concern arises?
But, overall, very strong.
Facts
These are facts of the underlying dispute.
Remember that you are assuming the reader of the brief has not
read the opinion and giving all the information needed to
understand the case in a concise form. Staying objective is the
goal here. That means you include all the facts relevant to the
decision--those that suggest he is an employee and those that
suggest he is an independent contractor, and you don't draw
legal conclusions.
So, is it accurate to say the doctor did not claim the existence of
an employment relationship? No. that was your issue number 1,
wasn't it? Also, you aren't describing allegations or claims here,
you are setting out facts in an objective manner. You leave the

arena of facts here somewhat.
Rule
Ask yourself whether someone who never read the case decision
would understand the rule from reading this section. Or would
he or she just say, "Huh, that's a nice list of laws. I wonder what
it has to do with this case."
You must set out the ADEA and FCRA first, then the tests that
courts have created under those laws to determine employee
status. And don't forget to lay out the rule for issues 2 & 3.
Holdings
The holdings should state what the court determined on the
legal issues. Do you actually say in Holding #1 whether the
doctor is an employee or an IC?
Holding #2 Do you say whether the doctor's retaliation claim is
barred or not?
Holding #3 Do you say whether the doctor provided adequate
evidence of an employment relationship?
State the holdings directly--answer the questions represented by
the issues.
Reasoning
Don't just restate the holding. Give the facts and logic that the
court thought were important to reach its conclusion. If there
are three issues, three holdings, there should be three reasoning
sections.
Outcome
Correct.
Notes
The notes were optional, but it's a great opportunity to reflect
on the process and what you learned. They were optional (and

do not affect your grade), but they are great to read.
Journal of Management History
A view of entrepreneurship and innovation from the economist
“for all seasons”: Joseph
S. Schumpeter
Michael Harvey Timothy Kiessling Miriam Moeller
Article information:
To cite this document:
Michael Harvey Timothy Kiessling Miriam Moeller, (2010),"A
view of entrepreneurship and innovation from
the economist “for all seasons”", Journal of Management
History, Vol. 16 Iss 4 pp. 527 - 531
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http://dx.doi.org/10.1108/17511341011074004
A view of entrepreneurship
and innovation from the economist
“for all seasons”
Joseph S. Schumpeter
Michael Harvey
Department of Management, School of Business Administration,
University of Mississippi, Mississippi, USA and
Bond University, Gold Coast, Australia
Timothy Kiessling
School of Business, Technology and Sustainable Development,

Bond University, Gold Coast, Australia, and
Miriam Moeller
Department of Management, School of Business Administration,
University of Mississippi, Mississippi, USA
Abstract
Purpose – The paper seeks to examine the influence of the
Austrian School of Economics and its
views of innovations and entrepreneurship on one of their
champions, Joseph Schumpeter. Schumpeter’s
insights on innovation and entrepreneurship issues are discussed
and compared to previous literature.
Design/methodology/approach – The paper is conceptual in
nature, highlighting that the key
process in economic change is the introduction of innovations;
the central innovator is that of the
entrepreneur.
Findings – Insights gained from Schumpeter include the
following: in the context of increasing
global competition, the importance of innovations by
entrepreneurs is becoming more important.
The challenge though is for firms to find and make use of these
individual for their survival. Another
link is the distrust of the government and the ability of the free
market to function, though imperfectly,
without interference.
Originality/value – The paper suggests that innovation and
entrepreneurship are the essence of the
capitalist society. Entrepreneurs contribute to society as a whole
by introducing new products/services

that often are contradictory to institutional norms.
Keywords Entrepreneurialism, Innovation, Economics
Paper type Research paper
[. . .] if the centenary of Schumpeter was noticed at all, it would
be in a small doctoral seminar.
And yet, it will be Schumpeter who will shape the thinking and
form the questions of
economic theory and economic policy for the rest of the
century, if not for the next thirty or
fifty years (Drucker, 1993, p. 106).
Introduction
Historically, entrepreneurship and innovation have always been
important to both
practitioners and researchers. Schumpeter thought capitalism
could be doomed to
The current issue and full text archive of this journal is
available at
www.emeraldinsight.com/1751-1348.htm
Economist
527
Journal of Management History
Vol. 16 No. 4, 2010
pp. 527-531
q Emerald Group Publishing Limited

1751-1348
DOI 10.1108/17511341011074004
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destruction. This was predicated on Schumpeter’s version of
capitalism due to three
reasons (Oser, 1970):
(1) obsolescence of the entrepreneurial function;
(2) destruction of protective political strata; and

(3) destruction of the institutional framework.
But, due to the growing importance of the global marketplace,
Schumpeter’s
arguments seem out of step with the spread of capitalism in the
twenty-first century.
Even though competition is now defined differently than during
the Austrian
School’s era, the capitalist system has always contained forces
that bring about change
and development (Wren and Greenwood, 1998). Schumpeter
(1934, p. 68) concludes that,
“anyone seeking profits must innovate, that is, brought about
the different employment
of the economic system’s existing supplies of productive
means.” Innovation has been
defined as consisting of five types (Schumpeter, 1934, p. 66).
Two types: new methods of
production and new sources of supply of raw material or semi-
finished goods are
identified as process innovations. The three other types are:
product innovations: a new
good or a new quality of a good, opening a new market, and a
new industry structure
such as the creation or destruction of a monopoly position.
This paper will examine the influence of the Austrian School of
Economics and their
views of innovation and entrepreneurship on one of their
champions, Joseph Schumpeter.
We will then discuss Schumpeter’s insights on innovation and
entrepreneurship issues
and compare them to previous literature.

Schumpeter on innovation and entrepreneurship
Innovations are discontinuous because innovation is difficult
and “only accessible to
people with certain qualities” (Schumpeter, 1934, p. 228).
Schumpeter recognized and
felt that entrepreneurs seek profit thought innovation,
transforms the static equilibrium
into a dynamic process of economic development which in turn
revolutionize the
patterns of production by exploiting an innovation or new
pattern of production
(Schumpeter, 1952; Oser, 1970). The profound shift occurring
in the economy is from a
“managerial” to an “entrepreneurial” economy (Beatty, 1998).
Innovations do not appear
independently of one another but in swarms or clusters. This
clustering of innovations
occurs “because the appearance of one or a few entrepreneurs
facilitates the appearance
of others, and thus the appearance of more, in ever-increasing
numbers” (Schumpeter,
1934, p. 228). Innovation clusters reinforce purchasing power
and create conditions for
prosperity.
If innovations are being embodied in new plant and equipment,
additional
consumers’ spending will result practically as quickly as
additional producers’
spending. Both together will spread in contagion from the
points in the system on which
they first touched, and develop a prosperous business situation.
However, there is a cost
of economic progress; a “necessary complement” of
development is “the great economic
and social process by which businesses, individual positions,

forms of life, cultural
values and ideals, sink in the social scale and finally disappear”
(Schumpeter, 1934,
p. 255). Schumpeter terms this replacement of old structures
with new structures as the
process of “creative destruction.” Successive innovations
represent “industrial
mutation” that incessantly revolutionizes the economic structure
from within,
constantly destroying the old one, while creating a new one. For
example, “in the
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case of retail trade, the competition that matters arises not from
additional shops of the
same type, but from the department store, the chain store, the
mail-order house and the
supermarket” (Schumpeter, 1942, p. 85).
An important implication regarding government policy can be
drawn from the view
that this process of creative destruction is the essential fact
about capitalism. Since we
are dealing with a process “whose every element takes
considerable time in revealing
its true features and ultimate effects, there is no point in
appraising the performance of
that process ex visu of a given point in time” (Schumpeter,
1942, p. 83). That is, the
impact of innovations on existing industry structure
considerably reduces the long-run
scope and importance of practices that aim at conserving
established positions and at
maximizing the profits accruing from them. This view is even
more applicable in the
global hypercompetitive business environment.
Schumpeter’s concept of a “profound shift” is evident around us
from a “managerial”
to an “entrepreneurial” economy (Beatty, 1998). Schumpeter
(1939, p. 102) distinguishes
the entrepreneur from the mere head or manager of a firm who

runs it on established
lines “[. . .] and surely it is but common sense to recognize that
the economic function of
deciding how much wool to buy for one’s process of production
and the function of
introducing a new process of production do not stand on the
same footing, either in
practice or in logic.” The entrepreneur must overcome the
inertia implied by the
inherent tendency of the circular flow toward equilibrium. The
ordinary businessman
tends to continue on traditional lines:
No other than ordinary routine work has to be done in this
stationary society, either by
workmen or managers: [. . .] Nothing is foreseen but repetition
of orders and operations, and
this foresight is ideally born out by events (Schumpeter, 1939,
p. 40).
However, Schumpeter (1934, p. 89) believes that:
[. . .] the entrepreneurial kind of leadership [. . .] has none of
that glamour which characterizes
other kinds of leadership. It consists in fulfilling a very special
task which only in rare cases
appeals to the imagination of the public.
Why, then, do some individuals undertake the thankless tasks of
entrepreneurship?
First, there is “the dream and the will to found a private
kingdom. Its fascination is
especially strong for people who have no other chance of
achieving social distinction.”
Next, there is “the will to conquer; the impulse to fight, to
prove oneself superior to

others, to succeed for the sake, not of the fruits of success, but
of success itself.” Finally,
“there is the joy of creating, of getting things done, or simply of
exercising one’s energy
and ingenuity.” The entrepreneur “seeks out difficulties,
changes in order to change,
and delights in ventures” (Schumpeter, 1934, pp. 93-4).
Insights from Schumpeter
The importance of innovations by entrepreneurs is becoming
even more important as
global competition offers more entrepreneurial opportunities
from a greater pool of
people. The challenge is for firms to find and make use of these
individuals for their
survival. Another link throughout the paper is the distrust of the
government and the
ability of the free market to function, though imperfectly,
without interference. Keynes
et al. (1989) would not agree with this philosophy, but luckily
the free market appears to
be winning that battle.
Economist
529
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However, important entrepreneurs and innovations, there are
always those that lose.
This process of destroying to rebuild suggests that as new
innovations are
implemented, firms that cannot adjust or compete will die. The
innovators are not
necessarily large firms as recent research suggests that some
firms are born global and
do not incrementally grow (Autio et al., 2000). Large firms due
to their core rigidities
and learning capabilities that have become institutionalized will
most likely have
difficulty developing an entrepreneurial environment, while new
firms have the
flexibility and the entrepreneurial managerial capabilities to
innovate rapidly.
In essence, the large firms must develop
innovation/entrepreneurial capabilities if they

wish to compete successfully against smaller entrepreneurial
firms.
In summary, innovation and entrepreneurship are the essence of
the capitalist society.
The entrepreneurs contribute to society as a whole by
introducing new products/services
that often are contradictory to institutional norms. One lasting
contribution of Schumpeter
that is often overlooked was his insistence that economist study
law, sociology, history
and even literature, to broaden the scope of economics
discourse. Schumpeter clearly
believed in the wealth of knowledge these other disciplines
offered and the assumptions
that mathematical economics often held constant (e.g. all other
things being equal)
(Perlman and McCann, 1998). However, though considerable
research continues to explore
these phenomena, the acknowledgement of the value of the
practice is not new; thanks to
leaders like the Austrian School of Economics and their leading
disciple Joseph
S. Schumpeter.
Schumpeter claimed to have three ambitions in life:
(1) to become the world’s greatest economist;
(2) the world’s greatest lover; and
(3) the world’s horseman.
“I (Schumpeter) never became the world’s greatest horseman”
(Swedberg, 1991). It
appears that Schumpeter also had a great sense of humor!

References
Autio, E., Sapienza, H.J. and Almeida, J.G. (2000), “Effects of
age at entry, knowledge intensity,
and imitability on international growth”, Academy of
Management Journal, Vol. 43 No. 5,
pp. 909-25.
Beatty, J. (1998), The World According to Peter Drucker,
Simon and Schuster, New York, NY.
Keynes, J.M., Mogridge, D. and Johnson, E.S. (1989), The
Collected Writings of John Maynard
Keynes, St. Martin’s Press, New York, NY.
Oser, J. (1970), Evolution of Economic Thought, Harcourt,
Brace and World, New York, NY.
Perlman, M. and McCann, C.R. (1998), The Pillars of Economic
Understanding: Ideas and
Traditions, The University of Michigan Press, Ann Arbor, MI.
Schumpeter, J. (1934), “The theory of economic development:
an inquiry into profits, capital,
credit, interest and the business cycle”, Harvard Economic
Studies, Vol. 46, Redvers Opies
(translator).
Schumpeter, J. (1939), Business Cycles: A Theoretical,
Historical and Statistical Analysis of the
Capitalist Process, McGraw-Hill, New York, NY.
Schumpeter, J. (1942), Capitalism, Socialism, and Democracy,
Harper &Brothers, New York, NY.

Schumpeter, J. (1952), Can Capitalism Survive?, Harper and
Row, New York, NY.
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http://www.emeraldinsight.com/action/showLinks?crossref=10.2
307%2F1556419&isi=000090056700010

Swedberg, R. (1991), Schumpeter: A Biography, Princeton
University Press, Princeton, NJ.
Wren, D. and Greenwood, R.G. (1998), Management Innovators:
The People and Ideas that have
Shaped Modern Business, Oxford University Press, New York,
NY.
Corresponding author
Michael Harvey can be contacted at: [email protected]
About Joseph A. Schumpeter
Joseph A. Schumpeter (1883-1950), born in what is the Czech
Republic today, was an economic
and political scientist resting his contribution on the importance
of business cycles, economic
development, entrepreneurship, and evolutionary economics. He
began his career studying law at
the University of Vienna, subsequently taking positions as
Professor of Economics and
Government at the University of Czernowitz (1909-1911) and
University of Graz (1912-1914).
In 1919-1920, he served as the Austrian Minister of Finance and
in 1920-1924 as President of the
private Biedermann Bank. After the collapse in 1924, bankrupt
Schumpeter joined the University
of Bonn and in 1932 joined the faculty at Harvard, where he
taught until his death in 1950.
Schumpeter’s early work on Theory of Economic Development
(1911) first outlined his famous
theory of entrepreneurship. Later works include Business Cycles
(1939), Capitalism, Socialism and
Democracy (1942), in which the idea of “creative destruction”
first appeared, and History of
Economic Analysis (1954). In 2009, (The) Economist identified
Schumpeter as a significant figure
and praised him as a “champion of innovation and

entrepreneurship” whose writing showed an
understanding of the benefits and dangers of business that
proved far ahead of its time.
Economist
531
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This article has been cited by:
1. Colleen Schwarz Management Department, B.I. Moody III
College of Business Administration,
University of Louisiana Lafayette, Lafayette, Louisiana, USA .
2015. A review of management history
from 2010-2014 utilizing a thematic analysis approach. Journal
of Management History 21:4, 494-504.
[Abstract] [Full Text] [PDF]
2. Tony ProctorBusiness School, University of Chester, Chester,
UK. 2013. Collaboration and networking
in the process of innovation: the path to precision time keeping.
Journal of Management History 19:2,
167-188. [Abstract] [Full Text] [PDF]
3. Pekka VarjeFinnish Institute of Occupational Health,
Helsinki, Finland Jussi TurtiainenFinnish Institute
of Occupational Health, Helsinki, Finland Ari VäänänenFinnish
Institute of Occupational Health,
Helsinki, Finland. 2013. Psychological management: changing
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1949‐2009. Journal of Management History 19:1, 33-54.
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Citation
Ashkenazi v. South Broward Hospital District, 13-15061, 607
Fed App, 958 (Ct. App.11th Cir., 2015)

Procedural History
A doctor instituted an employment discrimination by age suit
against the Hospital District with regard to violations of
provisions of 29 U.S.C. 621 of the Age Discrimination in
Employment Act and Fla. Stat. 760.01 of the Florida Civil
Rights Act after the revocation of his surgical privileges. The
District court holds that the doctor does not qualify for the
protection under these provisions as he is an independent
contractor and not an employee.
Issue(s)
Whether there was an employer-employee relationship existent
between the doctor and the district. Whether Fla. Stat. 395.0191
exempted professional review actions from immunity under
Federal Civil Rights statutes. Whether the trial court was fault
in its holding against the appellant in his pleadings for the
District’s interference in his employment by 3rd parties.
Facts
Dr. Ashkenazi, the appellant, owned a corporation through
which he operated private practice and that paid his salary, as
well as handled his income tax responsibilities via the provision
of W-2 forms. This body also had the authority to fire its paid
employees. On appeal, the doctor did not claim existence of an
employment relationship and asserts that the contract drafted
determined him as an independent contractor. The district
provided the doctor with hospital equipment, hospital facilities,
support-staff etc. to execute his duty. The appellant, however,
claims that the hospital, in its action and treatment of him, had
demonstrated that he was an employer. This is argued out by
presentation of evidence of his subjection to having proctors
accompany him in surgery, creation of records on his surgeries,
and the more vigorous observation that is applied to his past
surgeries in contrast to peer-review customs. For these reasons,
he appeals the summary judgement granted by the trial court
and in turn address his complaints on the age-discrimination
Rule
There are tests that are applied in the determination of

employment status under federal laws; the common law agency
test, the “economic realities” test and the hybrid approach.
These tests look into the level of control by the employers, the
dependency on the employer and many different aspects of
employer-employee relationships.
Holding
Issue #1: Whether there was an employer-employee relationship
existent between the doctor and the district.
Holding #1: The court held that whilst it had not determined
what test was applicable for ADEA cases, the appellant in the
case in question had also failed to provide sufficient evidence
of material fact to satisfy any of the applicable tests.
Issue #2: Whether Fla. Stat. 395.0191 exempted professional
review actions from immunity under Federal Civil Rights
statutes.
Holding #2: The Court insisted that the language used in the
Florida legislature was to be read and interpreted as it should be
by Florida Courts and that the language does not reflect the
messages of separate Federal Statutes enacted by entirely
different bodies.
Issue #3: Whether the trial court was fault in its holding against
the appellant in his pleadings for the District’s interference in
his employment by 3rd parties.
Holding #3: The court held that the amended appeal was silent
on the existence of any relationship between him and a 3rd
party in Dr. Feldbaum. The inclusion of this after the grant of
the summary dismissal also absolves the trail court of error as it
did not have this information initially.
Reasoning
The court also held that there is no employment relationship
created by conventional patient-doctor relationship under
federal statutes that govern discrimination such as the ADEA.
This was a decision that had been observed in five different
circuit courts against Title VII claims that of doctors acting in
their capacity as patients’ employees. The age-based
discrimination suit was restricted by the provisions of Fla. Stat.

395.0191(7) and the appellant failed to adequately assert
intentional fraud.
In the claim against the District for interference in the
appellant’s employment by 3rd parties, the court held that it
affirmed the trial court’s decision to grant summary judgement
as the evidence provided was insufficient to prove the existence
of an employment relationship between the appellant and a 3rd
party. It was however found that a claim of this nature for
interference was possible under Title VII though its legality
within the limitation of the ADEA have not been determined by
any court in preceding issues and was not determined due to the
claim failing on its merits.
Conclusion
The appellate Court affirmed the Trial Court’s summary
dismissal orders for the reasons that his arguments did not
satisfy the requirements to qualify for protection against
discrimination under the ADEA nor the FCRA.
1

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