Bus Law 340 Ch 3

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Bus Law 340 Ch 3
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Bus Law 340 Ch 3
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  1. Judicial Review:
    The process by which a court decides the constitutionality of legislative enactments and actions by the executive branch.

    • While the U.S. Constitution makes no mention of the power of judicial review, Alexander Hamilton and James Madison (two of the three authors of the influential Federalist Papers) both advocated the concept of judicial review as a necessary part of the checks and balances that characterize our federal government.
    • In Marbury v. Madison (1803), arguably the most significant case in American constitutional law, the U.S. Supreme Court opined:
    • It is emphatically the province and duty of the[courts] to say what the law is…. So if the law be in opposition to the Constitution …[t]he Court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.
  2. JURISDICTION
    Jurisdiction: The authority of a court to hear and decide a specific action. Jurisdiction has many dimensions, including:

    • Personal Jurisdiction: The authority of a court to hear and decide a dispute involving the particular parties before it.
    • Subject Matter Jurisdiction: The authority of a court to hear and decide the particular dispute before it. 
    • Original Jurisdiction: The authority of a court to hear and decide a dispute in the first instance. Generally speaking, trial courts are courts of original jurisdiction, although the Supreme Court of the United States and the highest courts of many of the states have original jurisdiction over a few types of disputes.
    • Appellate Jurisdiction: The authority of a court to review a prior decision in the same case made by another court.
  3. VENUE AND STANDING
    Venue: Within a particular jurisdiction, the most appropriate location for a trial to be held and from which a jury will be selected.

    Standing to Sue: An individual or entity must have a sufficient stake in the controversy before he, she, or it may bring suit. Whether standing exists, in turn, will depend in part on whether there is a justiciable controversy – that is, a real and substantial controversy, not one that is moot, hypothetical, or academic.
  4. PERSONAL JURISDICTION
    In Personam Jurisdiction: Courts have jurisdiction over persons or entities residing or doing business within a particular county, district, state, or in some cases, anywhere within the United States.

    • All states, as well as the United States, have one or more long-arm statutes, which dictate under what terms a nonresident person or entity, who would otherwise not be subject to the court’s jurisdiction, may nonetheless be required to appear before the court.
    • The key to whether a nonresident will be subject to a court’s jurisdiction is the quantity and nature of the nonresident’s contacts with the state within which the court sits.
    • In Rem Jurisdiction: Courts also have personal jurisdiction over disputed property located within the county, district, or state.
  5. SUBJECT MATTER JURISDICTION
    The constitutional or statutory authorizing or creating a court usually defines the court’s subject matter jurisdiction.

    • Limited vs. General Jurisdiction: A court whose jurisdiction is limited by one or more of the following
    • (1) the amount in controversy,
    • (2) the nature of the controversy,
    • (3) the basis for the relief sought, or
    • (4) in a criminal case, whether the crime alleged is a misdemeanor or felony. has limited jurisdiction; otherwise, a court has general jurisdiction. 
    • Concurrent Jurisdiction: Two or more courts have subject matter jurisdiction over a dispute.
    • Exclusive Jurisdiction: Only one court, or one geographic class of courts, has subject matter jurisdiction over a dispute.
  6. FEDERAL COURT JURISDICTION
    • Federal Question Jurisdiction: Arises if a case involves an alleged violation of the U.S. Constitution, federal statute or regulation, or a treaty between the U.S. and one or more foreign countries.
    • Diversity Jurisdiction: Arises if:
    • (1) the amount in controversy exceeds $75,000; and
    • (2) the lawsuit is between
    • (a) citizens of different states, 

    For purposes of diversity jurisdiction, a corporation is a citizen of both:

    • (1) its state of incorporation, and
    • (2) the state of its principal place of business, if the two are not the same.
    • (b) a foreign country and citizens of one or more states, or
    • (c) citizens of a state and citizens or subjects of a foreign country.
  7. JURISDICTION IN CYBERSPACE
    • Personal jurisdiction is traditionally a function of geography –where one or more party resides or where the alleged wrong occurred. The Internet makes geographic distinctions difficult and potentially meaningless.
    • Sliding Scale Standard:
    • 1. substantial business conducted over the internet
    • 2. some interactivity through the internet
    • 3. passive advertising

    • Competing Views 
    • Even though a defendant is a resident of State Y, has never physically visited State X, and did not direct its Web site specifically to persons in State X, the defendant should be subject to suit any where its site can be accessed, including State X. Because a defendant cannot create a web site that is unavailable to residents of State X, it is unfair to subject the defendant to jurisdiction in State X without it having other “minimum contacts” there. An increasing number of courts are resolving personal jurisdiction issues by applying a “sliding scale” that makes it more likely that a court will exercise jurisdiction over a distant defendant the more business that defendant conducts over the Internet.
  8. Probate Court
    A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate.
  9. Bankruptcy Court
    A federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law.
  10. STATE COURT SYSTEMS
    • Trial Courts: Trial courts are where all litigation (other than that conducted through administrative agencies) begins. Trial courts have either general jurisdiction – meaning that they are empowered to consider any matter before them – or limited jurisdiction – meaning that they are only empowered to hear certain types of cases or cases in which the amount in controversy is above, below, or between, specified bounds.
    • Appellate Courts: Every state has at least one appellate court, to which a litigant who was unsuccessful at the trial court may appeal for relief. Some states have intermediate appellate courts (akin to the U.S. Courts of Appeals) which are subject to review by the state’s supreme court or “court of last resort.” Other states have only a supreme court. 
    • Appellate courts (intermediate and supreme) typically limit their review to questions of law, rather than questions of fact, although this is not always the case.  Most state supreme courts, like the U.S. Supreme Court, have discretionary review (i.e., they decide whether or not to consider the merits of a particular case); most state intermediate appellate courts, like the U.S. Courts of Appeals, do not have discretion whether to entertain cases appealed to them.
  11. THE FEDERAL COURT SYSTEM 3 of them
    • U.S. District Courts: Trial courts of general jurisdiction, each state (as well as the District of Columbia and certain other U.S. territories and possessions) has at least one “district,” and some states have as many as four, with each district divided administratively among one to several judges.
    • U.S. Courts of Appeals: Appellate courts to which litigants in the U.S. District Courts have an automatic right to appeal(i.e., the court of appeal must consider each appeal on its merits). These courts also hear appeals from U.S. Bankruptcy Courts and other specialized courts and, in the case of the D.C. Circuit, from federal administrative agency decisions. These courts cover twelve geographic regions, with a thirteenth court, the Federal Circuit, empowered to hear appeals from any district court involving patent law, cases in which the United States is a defendant, and other specified types of cases.
    • U.S. Supreme Court: The “highest court in the land,” the U.S. Supreme Court exercises discretionary review over all federal appellate courts, as well as, in some circumstances, state supreme and appellate courts. Most cases reach the U.S. Supreme Court on writ of certiorari, which requires that at least four justices agree the case merits the Court’s review.
  12. PLEADINGS
    • Pleadings: Written documents that inform each of the parties of one another’s claims and defenses and specify the issues involved in the lawsuit. The primary pleadings are:
    • (1) Complaint, setting forth the plaintiff’s claims for relief;  Once the plaintiff files her complaint, she must serve a copy on each defendant, along with a summons from the court informing each defendant of his obligation to answer or otherwise appear within a specified time or risk a default judgment.
    • (2) Defendant’s Answer, which:
    • (a) responds to the complaint and, where appropriate;
    • (b) asserts affirmative defenses (reasons why the plaintiff’s claims fail or are limited as a matter of law or equity); and, where appropriate,
    • (c) asserts counterclaims (claims the defendant asserts entitles him to relief); and(3) if the defendant asserts a counterclaim, the plaintiff may Reply.
  13. PRETRIAL MOTIONS
    • Motion: A request for relief from the court prior to the ultimate disposition of a lawsuit. Motion to Dismiss: A motion seeking to terminate the lawsuit due to the plaintiff’s failure to comply with proper procedure or to state a justiciable claim.
    • Motion for Judgment on the Pleadings: A motion by either party requesting that the court decide the case solely on the pleadings. The court may grant this motion only if there are no disputed facts.
    • Motion for Summary Judgment: A motion requesting the court to enter judgment based on the pleadings and discovery to date. The court may grant this motion only if there are no disputed facts.
  14. DISCOVERY
    • Discovery: The process of obtaining factual information from an opposing party or a non-party by means of:
    • Depositions: Sworn testimony, recorded by a court reporter and often by videotape, of the parties and other key witnesses. Depositions are taken prior to trial, and are often used to obtain the testimony of witnesses who are unable or unwilling to attend and testify at trial.
    • Interrogatories: Written questions related to the subject matter of the lawsuit that must be answered under oath.
    • Requests for Admission: Questions to the responding party phrased in an “admit” or “deny” format, giving no opportunity for explanation, and binding the responding party to its admissions.
    • Requests for Production: Written requests for documents – including electronic documents, such as email and spreadsheets, and data compilations – and other things related to the subject matter of the lawsuit.
    • Requests for Examination: When the physical or mental condition of a party is in question, the opposing party may ask the court to order a third-party physical or mental examination.
  15. PRETRIAL MATTERS
    • Pretrial Conference: Prior to trial, a court will typically schedule one or more pretrial conferences or hearings to resolve procedural matters and to narrow the issues for trial.
    • Once the trial court has ruled on all pending motions, if one or more of plaintiff’s claims or defendant’s counterclaims has/have survived, the case will proceed to trial. Trial may be with or without a jury. A trial without a jury is called a bench trial. In a bench trial, the trial judge is the arbiter of all questions of fact and of law. By contrast, in a jury trial, the judge decides questions of law, but the jury decides all questions of fact(including the amount of damages, if any, due the plaintiff).
    • Jury Selection: In the case of a jury trial, the trial judge or the attorneys for the parties ask a panel (or venire) of prospective jurors to answer a series of questions (a.k.a. voir dire) – most of which may not have any apparent relationship to the lawsuit. The judge and attorneys will then remove certain members from the panel until a group of six or twelve jurors (depending on the court), and usually one or more alternate jurors (to serve in the event of illness or other emergency), is chosen to serve as the jury.
  16. TRIAL AND POSTTRIAL MOTIONS
    • Dispositive Motions: Motions asking the trial court to dispose of a party’s claims for affirmative relief, to alter or disregard the jury’s verdict, or to order a new trial.
    • Motion for Directed Verdict: A motion for the judge to take the decision out of the jury’s hands and direct a verdict for the moving party because the non-moving party has failed to provide sufficient evidence to prevail on its claims.
    • Motion for Judgment Notwithstanding the Verdict: A motion asking the court to enter judgment in favor of the moving party, despite the jury’s verdict in favor of the non-moving party. This Motion and the Motion for Directed Verdict have been merged under the Federal Rules into a Motion for Judgment as a Matter of Law.
    • Motion for New Trial: A motion asserting that the trial was so fundamentally flawed – because of error by the trial judge, newly discovered evidence, prejudice, or other reasons – that a new trial is required to prevent a miscarriage of justice. If the losing party is unsuccessful in persuading the trial court to grant any of its post-trial motions, the trial court
  17. APPELLATE PROCEDURE
    • Following entry of judgment, the losing party may timely file an appeal, asking a court with appellate jurisdiction over the trial court to review and set aside the judgment.
    • What is filed with the appellate court? While it varies from state to state and from state to federal court, generally:
    • (1) a notice of appeal, evidencing the appellant’s intent to appeal the judgment or one or more rulings of the trial court;
    • (2) a record or transcript of the pleadings, motions,hearings, and trial before the trial court, and particularly the judgment and any other ruling by the trial court that is being challenged; and
    • (3) briefs outlining the legal arguments supporting the appellant’s request to set-aside the judgment and the appellee’s request that the appellate court let the trial court judgment stand. Appellate courts generally do not rule on questions of fact unless the evidence is so overwhelming that no reasonable person could disagree.
  18. APPELLATE REVIEW
    • Once all of the briefs are on file, the appellate court will generally, though not always, schedule an oral argument at which counsel for the parties may briefly outline their positions and at which the court may ask counsel pointed questions to aid the court’s disposition of the appeal. Based on the arguments raised in the briefs and, if there is one, at oral argument, the appellate court may:
    • (1) affirm the trial court’s judgment or ruling,
    • (2) reverse the trial court’s judgment or ruling, in whole or in part, and remand the case for further proceedings in the trial court, or
    • (3) reverse the trial court’s judgment or ruling, in whole or in part, and render judgment or a ruling without further trial court proceedings.
    • If the party that loses before the appellate court chooses, it may appeal that intermediate appellate court’s ruling to the jurisdiction’s supreme court or its equivalent, beginning a new round of briefing. Often, the first issue for the higher court is whether it will entertain the appeal at all. In such cases, initial briefing to the higher court may be limited to the question of why it should do so.
  19. COURTS IN THE CYBERAGE
    • Electronic Filing: A number of federal and state courts permit attorneys to file documents electronically in certain cases, and the Administrative Office of the U.S. Courts has announced that it is considering permitting electronic filing in all U.S. District Courts. In almost all cases where electronic filing is permitted, it is not required. Electronic Posting: Most courts have their own Web sites where, among other things, they post opinions more quickly than they are otherwise available through print or traditional on-line reporting services such as Westlaw and LEXIS, and they maintain case dockets and electronic copies of pleadings and other filings.
    • Cyber Courts: Though their widespread use is still likely many years away, some jurisdictions have begun to experiment with online courts and online court proceedings.
  20. ARBITRATION
    • Arbitration: Dispute resolution utilizing either a neutral third party or a panel of three persons chosen by the court or agreed to by the parties (or both).
    • Arbitration can be either binding – in which case the arbitrator’s decision is legally binding – or nonbinding –in which case the arbitrator’s decision is merely advisory. Many contracts include an arbitration clause, which provides that any dispute arising out the contract will be submitted first (in the case of nonbinding arbitration) or finally (in the case of binding arbitration) to arbitration, rather than to a court.
    • Arbitrability: Despite the fact that a contract contains an arbitration clause, a party to the contract may claim that he is not bound by the arbitration clause, in which case a court will be asked to decide: whether the clause is enforceable; and, if so,  whether the issue is covered by the clause.
  21. OTHER FORMS OF ADR
    • Negotiation: Informal settlement talks between the parties, with or without counsel.
    • Mediation: Non-binding procedure utilizing the services of a neutral third party to assist negotiations and recommend are solution of the parties’ dispute. Mediation is nonadversarial and tends to reduce antagonism.
    • Neutral Case Evaluation: A third party the parties select evaluates each side’s position and informs each party of their strengths and weaknesses.
    • Mini-Trial: A short-form trial presented to a “judge” whose decision is not legally binding, but may assist the parties in evaluating their claims or defenses.
    • Summary Jury Trial: A short-form trial presented to a “jury” whose decision is not legally binding, but may assist the parties in evaluating their claims or defenses.

    Online Dispute Resolution: An increasing number of companies and organizations offer dispute-resolution services online.
  22. Original vs. Appellate court
    • Original is the first time heard called the trial court
    • Appellate is the reviewing court where the case is being appealed
  23. Federal question
    a question that pertains to the US constitution, an act of Congress, or a treaty and provides a basis for federal jurisdiction in a case.
  24. For purposes of diversity of citizenship, a corporation is a citizen only of the state in which it is incorporated. TF
    False
  25. National Consumer Goods Corporation and Paula Purchaser agree to resolve their dispute in arbitration. The arbitrator's decision is called
    a conclusion of law.
    a finding of fact.
    an award.
    a verdict.
    an award.
  26. In mediation, the mediator proposes a solution that includes what compromises are necessary to reach an agreement. True False
    True
  27. Molly files a suit against Naomi. They meet, and each party's attorney argues the party's case before a judge and jury. The jury presents an advisory verdict, after which the judge meets with the parties to encourage them to settle their dispute. This
    court-ordered arbitration.
    early neutral case evaluation.
    a mini-trial.
    a summary jury trial.
    a summary jury trial.
  28. Unless otherwise agreed, the result of an online dispute resolution proceeding may not be appealed to a court.
    options:TrueFalse
    False
  29. The United States Supreme Court can review a decision by a state's highest court only if a question of federal law is involved.
    Question options:TrueFalse
    True
  30. Carol files a suit against Downwind Boat Corporation. Downwind responds that it appears from the pleadings the parties do not dispute the facts and the only question is how the law applies to those facts. Downwind supports this response with witnesses' sworn statements. This is:

    a counterclaim.
    a motion for judgment on the pleadings.
    a motion for summary judgment.
    a motion to dismiss.
    a motion for summary judgment.
  31. The function of the courts is to interpret and apply the law.
    Question options:TrueFalse
    True
  32. Concurrent jurisdiction exists when both federal and state courts have the power to hear a particular case.
    Question options:TrueFalse
    True
  33. To have standing to sue, a party must have been harmed or have been threatened with harm by the action about which he or she complains.
    Question options:True False
    True

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