What is judicial review? How and when was the power of judicial review established? What is judicial review? How and when was the power of judicial review

• What is judicial review? How and when What is judicial review? How and when was the power of judicial review was the power of judicial review established?established?• Before a court can hear a case, it must Before a court can hear a case, it must

have jurisdiction. Over what must it have jurisdiction. Over what must it have jurisdiction? How are the courts have jurisdiction? How are the courts applying traditional jurisdictional applying traditional jurisdictional concepts to cases involving Internet concepts to cases involving Internet transactions? transactions?

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

• What is the difference between a trial What is the difference between a trial court and an appellate court?court and an appellate court?• What is discovery, and how does What is discovery, and how does

electronic discovery differ from electronic discovery differ from traditional discovery? What is judicial traditional discovery? What is judicial review? basic structure of the United review? basic structure of the United States government? States government?


• What constitutional clause gives the What constitutional clause gives the federal government the power to federal government the power to regulate commercial activities among regulate commercial activities among the various states? the various states?


• Judicial Review was established by Judicial Review was established by the U.S. Supreme Court in the U.S. Supreme Court in Marbury Marbury v. Madisonv. Madison (1803) where Chief (1803) where Chief Justice Marshall wrote:Justice Marshall wrote:– “It is emphatically the province and duty of

the judiciary to say what the law is….”

5© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

• Jurisdiction: “Juris” (law) “diction” Jurisdiction: “Juris” (law) “diction” (to speak) is the power of a court to (to speak) is the power of a court to hear a dispute and to “speak the law” hear a dispute and to “speak the law” into a controversy and render a into a controversy and render a verdict that is legally binding on the verdict that is legally binding on the parties to the dispute. parties to the dispute.


• Jurisdiction (cont’d).Jurisdiction (cont’d).–Jurisdiction Over Persons or Property.

The power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate.


• Jurisdiction (cont’d).Jurisdiction (cont’d).–Jurisdiction Over Persons or Property

(cont’d). • In Rem: power to decide issues relating to

real or personal property. A court generally has in rem jurisdiction over any property situated within its geographical borders.



(cont’d).• Long-Arm Statutes: courts use long-arm

statutes for non-resident parties based on “minimum contacts” with state. Means defendant had some connection with forum state.



(cont’d).• Corporate Contacts: does the firm

actively do business or advertise within the state? Did it place its goods or services into the “stream of commerce” in that state?


• Jurisdiction (cont’d).Jurisdiction (cont’d).–Jurisdiction Over Subject Matter.• General and Limited Jurisdiction.–Statutory limitation on the types of cases a

court can hear (e.g., probate and bankruptcy). –Can also be limited to amount in controversy

(amount of monetary damages).


• Jurisdiction (cont’d).Jurisdiction (cont’d).–Original and Appellate Jurisdiction.• Courts of original jurisdiction is where the

case started (trial).• Courts of appellate jurisdiction have the

power to hear an appeal from another court.


• Jurisdiction (cont’d).Jurisdiction (cont’d).–Jurisdiction of the Federal Courts.• Federal Questions: rights or obligations of

a party are created or defined by some federal law.• Diversity of Citizenship: parties are not

from same state, and amount in controversy must exceed $75,000.


• Jurisdiction (cont’d).Jurisdiction (cont’d).–Exclusive versus Concurrent

Jurisdiction.• Exclusive: only one court (state or

federal) has the power (jurisdiction) to hear the case. • Concurrent: more than one court can

hear the case.


• Jurisdiction in Cyberspace.Jurisdiction in Cyberspace.–“Sliding Scale” Standard to determine

whether to exercise jurisdiction.

–International Jurisdiction Issues.


Some Interaction

No Yes

Substantial Business

Interaction

Passive Website

• Venue.Venue.–Venue is concerned with the most

appropriate location for the trial.–Generally, proper venue is whether the

injury occurred.


• Standing to Sue.Standing to Sue.–A party must have suffered a legal

injury and have a sufficient “stake” in the controversy.–CASE 3.3 Oregon v. Legal Services Oregon v. Legal Services

Corp.Corp. (2009). Was there a “concrete” injury to the state?



• State Court Systems.State Court Systems.–Trials Courts.• “Courts of record”- have court

reporters.• Small Claims Courts are informal,

inferior courts with limited amounts in controversy (usually $5,000).•Opening and closing arguments.• Juries are selected.


• State Court Systems (cont’d).State Court Systems (cont’d).–Appellate or Reviewing, Courts.• Review trial court proceedings to

determine whether the trial complied with procedural and substantive rules of law.• Generally, appellate courts will consider

questions of law, but not questions of fact.


• State Court Systems (cont’d).State Court Systems (cont’d).–Highest State Courts.• Usually, but not always, called a ‘supreme

court.’• Decisions of a state’s highest court on

matters of state law are final. The U.S. Supreme Court can overrule a state supreme court when there are federal laws involved.


• The Federal Court System.The Federal Court System.–Basically a three-tiered system:• U.S. District Courts (trial courts of general

jurisdiction).• U.S. Courts of Appeal. • The U.S. Supreme Court.


• The Federal Court System (cont’d).The Federal Court System (cont’d).–U.S. District Courts: courts of original

jurisdiction based on federal statutes. –U.S. Courts of Appeal: there are 13

Courts of Appeal representing district courts throughout the country.



© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

www.supremecourt.gov

• U.S. Supreme Court.U.S. Supreme Court.–Highest Court in the

Land.– Final arbiter of U.S.

Constitution.–Petition for Court to

hear case by Writ of Certiorari.

25


• Pleadings.Pleadings.–Plaintiff’s

Complaint. • Court acquires

jurisdiction over subject matter and Plaintiff.• Facts: What

happened.• Prayer: Court relief.


• Pleadings (cont’d).Pleadings (cont’d).–Defendant’s Answer: response to the

allegations stated in the Plaintiff’s Complaint. Defendant must specifically admit or deny each allegation in the complaint.•May file counterclaim against plaintiff.•May file affirmative defense.


• Pleadings (cont’d).Pleadings (cont’d).–Motion to Dismiss: either party

(normally defendant) can ask the court to dismiss the case if the pleadings fail to show a legal claim.


• Pretrial Motions.Pretrial Motions.–Motion for Judgment on the Pleadings:

asks the court to rule on the case, based on the pleadings.–Motion For Summary Judgment.• Asks a court to grant a judgment for

moving party without a trial. Facts are viewed in the light most favorable to the other party.


• Discovery.Discovery.–Process by which parties obtain

information from the opposing party prior to trial.–Depositions and Interrogatories.• Case 3.2 Blankenship v. Collier Blankenship v. Collier (2010).

What happens when Plaintiff fails to identify witnesses?

–Requests for Other Information.31© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as

permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

• Discovery (cont’d).Discovery (cont’d).–Electronic Discovery (E-Evidence).• FRCP deals specifically with preservation,

retrieval, and production of electronic data.

• Pretrial Conference.Pretrial Conference.–After discovery is completed meet with

trial judge, explore possibility of settlement, or identify issues in dispute.


• Jury Selection.Jury Selection.–Voir Dire.–Jurors can be dismissed peremptorily

(no reason or for cause (bias).• The Trial.The Trial.–Opening Arguments. –Evidence must be relevant to the issues

(tends to prove or disprove). 33© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as


• The Trial (cont’d).The Trial (cont’d).–Plaintiff’s Motion for Directed Verdict.–Defendant’s Evidence: plaintiff can

‘rebut’ the evidence, and defense can state ‘rejoinders.’

• Posttrial Motions.Posttrial Motions.–After jury reaches a verdict, either party

can make a posttrial motion. 34© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as


• Posttrial Motions (cont’d).Posttrial Motions (cont’d).–Motion for J.N.O.V.: granted only if the

jury’s verdict was unreasonable and erroneous.–Motion for New Trial: after looking at all

the evidence, judge will grant the motion IF the jury was in error.


• The Appeal.The Appeal.–Filing: a party may appeal the jury’s

verdict or any legal issue, motion or court ruling during the trial.• Appellants must have legitimate grounds

for appeal (usually legal error).–Appellate Review: appeals court can

affirm (agree with) or reverse (disagree with) the lower court’s decision.


• Enforcing the Judgment.Enforcing the Judgment.–Litigation process can reach a verdict,

but what if the defendant has no assets, or insurance?–Usually, a plaintiff’s attorney will verify

that the defendant has assets or insurance before she will proceed with the lawsuit.


• Electronic Filing.Electronic Filing.–More than 60% of states now have

some electronic filing system.• Courts Online.Courts Online.• Cyber Courts and Proceedings.Cyber Courts and Proceedings.


• Negotiation.Negotiation.–Informal, sometimes without attorneys,

where differences are discussed with the goal of “meeting of the minds” in resolving the case.–Successful negotiation involves

thorough preparation.


• Mediation.Mediation.–Involves neutral 3rd party ‘mediator’.–Mediator talks face-to-face with parties

(in different rooms) to determine “common ground.”


• Mediation (cont’d).Mediation (cont’d).–Advantages: few rules, customize

process, parties control results (win-win).–Disadvantages: mediator fees, no

sanctions or deadlines.


• Arbitration.Arbitration.–A more formal ADR.–Neutral 3rd party renders a legally-

binding decision.–Usually the arbitrator is an expert or

well-respected government official.


• Arbitration (cont’d).Arbitration (cont’d).–Arbitration Clauses and Statutes.• The Federal Arbitration Act.–Parties can agree to have decision

confirmed in federal court.–FAA covers any arbitration clause in an

interstate commerce.• State Arbitration Statutes.


• Arbitration (cont’d).Arbitration (cont’d).–Issue of Arbitrability: party compels

arbitration and court resolves the issue of whether arbitration is required. • CASE 3.3 NCR Corp. v. Korala Associates, NCR Corp. v. Korala Associates,

Ltd.Ltd. (2008). A mandatory employment arbitration clause is generally enforceable.


• Arbitration (cont’d).Arbitration (cont’d).–Mandatory Arbitration in the

Employment Context. • Many claim workers are not sufficiently

protected with mandatory arbitration for employment issues.• Landmark case: Gilmer v. Interstate/Johnson

Lane Corp. (1991). Employee had waived his right to sue when he registered with NY Stock Exchange.


• Other Types of ADR.Other Types of ADR.–Assisted Negotiation.–Early Neutral Case Evaluation.–Mini-Trial.–Binding Arbitration.–Federal courts: summary jury trials

(verdict is not binding but provides guidance to parties).


• Providers of ADR Services.Providers of ADR Services.–Nonprofit organizations:• American Arbitration Association.• Better Business Bureau.

–For-Profit Organizations.–JAMSADR.com.


• Online Dispute Resolution.Online Dispute Resolution.–Also called ODR.–Uses the Internet to resolve disputes.–Still in its infancy but is gaining

momentum.–See, e.g., Cybersettle, NAM, BBB,

ICANN.


Documents

What is judicial review? How and when was the power of judicial review established? What is judicial review? How and when was the power of judicial review