-
Judicial Review
- the process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch
- enables this branch to act as a check on the other 2 branches of govt
-
Marbury v. Madison
- established the power of the judiciary
- US Supreme case, 1803
-
Jurisdiction
- juris - "law"
- diction - "to speak"
- "the power to speak the law"
- before any court can hear a case, it must have jurisdiction over the person (or company) against whom the suit is brought, etc
-
In Personam Jurisdiction
personal jurisdiction, over any person or business that resides in a certain geographic area
-
In Rem jurisdiction
- jurisdiction over property that is located within its boundaries
- "jurisdiction over the thing"
-
Long Arm Statute
- a court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state
- must demonstrate minimum contacts
-
Minimum contacts
Recall the example in the book about a business based in Maine who has a plant in Georgia and sells goods there. There are enough contacts to establish minimum contacts, therefore, long arm statute
-
Subject-matter Jurisdiction
refers to the limitations on the types of cases a court can hear
-
Probate Court
state courts that handle only matters relating to the transfer of a person's assets and obligations after that person's death, including issues relating to the custody and guardianship of children
-
Bankruptcy Court
handle only bankruptcy proceedings, which are governed by federal bankruptcy law.
-
Original vs. Appellate Jurisdiction
the distrinction between the 2 normally lies in whether the case is being heard for the first time
-
Federal Question
- a question that pertains to the US Constitution, acts of Congress or treaties;
- provides a basis for federal jurisdiction
-
Diversity of Citizenship
- whenever a federal court has jursisdiction over a case that does not involve a question of federal law
- most common type has 2 requirements:
- 1. plaintiff & defendant must be residents of diff states
- 2. dollar amount in question must exceed $75K
-
Sliding-Scale Standard
used in determining the jurisdiction over an Internet-based defendant
-
Venue
- concerned with the most appropriate location for a trial
- reflects the policy that a court trying a case should be in the geographic neighborhood where the incident leading to the lawsuit occurred
-
Standing to Sue
- sufficient stake in a matter to justify seeking relief through the court system
- also required justiciable controversy (see card 17)
-
Justiciable Controversy
a controversy that is real and substantial, as opposed to hypothetical or academic
-
State Court Systems may include:
- local trial courts of limited jurisdiction
- state trial courts of general jursidiction
- state courts of appeals (intermediate appellate courts)
- state's highest court (often called state supreme court)
-
Small Claims Courts
- inferior trial courts that hear only civil cases involving claims of less than a certain amount
- generally conducted informally and lawyers are not required
-
Appellate Courts
- aka court of appeals or reviewing court)
- generally do not conduct new trials in which evidence is submitted
- usually a panel of 3 or more judges who review the records of the court
-
Question of Fact
- deals with what really happened in regard to the dispute being tried
- ex: whether a party actually burned a flag
-
Question of Law
- concerns the application or interpretation of the law
- ex: whether flag-burning is a form of speech protected by the 1st Amendment, etc
-
3-Tiered system of Federal Court System
- US District Courts (trial courts of general jurisdiction)
- US Courts of Appeals (intermediate courts of appeals)
- US Surpreme Court
-
Writ of Certiorari
- an order issued by the Surpreme Court to a lower court requiring the latter to send it the record of the case for review;
- 4 of 9 justices my approve it (rule of four)
-
Litigation
- the process of resolving a dispute through the court system
- expensive & time-consuming
-
Alternative Dispute Resolution (ADR)
advantage: flexibility, privacy, resolved more quickly
-
Negotiation
- simplest form of ADR
- process in which the parties attempt to settle their dispute informally, with or without attorneys to represent them
-
Mediation
- another form of ADR
- a neutral 3rd party acts as a mediator and works with both sides in the dispute to facilitate a resolution
-
Arbitration
- more formal method of ADR
- an arbitrator (neutral 3rd party of panel of experts) hears a dispute and imposes a resolution on the parties
- difference: 3rd party hearing teh dispute makes a decision for the parties
-
Arbitration Clause
included in a contract specifying that any dispute arising under the contract will be resolved through arbitration rather than through the court system
-
Arbitrability
issue of arbitrability - whether the matter is one tha tmust be resolved through arbitration
-
Early Neutral Case Evaluation
parties select a neutral 3rd party to evaluate their respective positions
-
Mini-Trial
each party's attorney briefly argues the party's case before the other and a panel of reps from each side who have the authority to settle the dispute
-
Summary Jury Trials
- parties present their arguments and evidence and the jury renders a verdict
- verdict is not binding, but acts as a guide to both sides in reaching an agreement
-
Online Dispute Resolution (ODR)
- the settlement of disputes in an online forum
- best for resolving small to medium sized business liability claims
|
|