1. Courts, Sources of Law, and Dispute Resolution
Take Quiz 2

2. Sources Of American Law
Constitutional Law
Federal
State
Administrative Law
Statutory Law
Federal
State
Local
Case Law and
Common Law Doctrines

3. The Common Law Tradition
King’s Courts. The Common Law originated in medieval England with the creation of the king’s courts and the development of a body of rules that were applied throughout the land.
Year Books
Stare decisis. A doctrine under which judges “stand on decided cases,” or follow the rule of precedent, in deciding cases. This is the cornerstone of the common law tradition.
Brown v. Board of Education (p.72)
Leegin Creative Leather Products (p.73)
Discuss - Why so important to U.S. system?
Leegin Belt

4. Civil Law versus Common Law

5. Constitutional Law Supreme Law of the Land States have Constitutions
State constitutions are supreme within state borders to the extent that they do not violate the U.S. Constitution or a federal law.
CASE Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002). P. 69
Random drug testing of athletes is constitutional in Tecumseh Oklahoma school district.

6. Statutory Law
Created by Legislative Bodies. Laws or ordinances created by federal, state, and local legislatures and governing bodies.
Cannot Violate U.S. Constitution. None of these laws can violate the U.S. Constitution or the relevant state constitutions.

7. Administrative Law
Federal Administrative Agencies. Federal administrative agencies are created by enabling legislation enacted by the U.S. Congress.
Administrative Law. The rules, orders, regulations, and decisions of federal, state, or local government administrative agencies.
Agency functions include:
Rulemaking
Investigation and enforcement
Adjudication

8. Authority Hierarchy Which law wins?
US Constitution
Federal Law
State Constitution
State Law
Case Law
Which source of law takes priority in the following situations, and why?
A federal statute conflicts with the U.S. Constitution.
A federal statute conflicts with a state constitution.
A state statute conflicts with the common law of that state.
A state constitutional amendment conflicts with the U.S. Constitution.
A federal administrative regulation conflicts with a state constitution.

9. Finding and Analyzing the Law - terminology you will need to know
US Statutes at Large/ USC
Federal Case Law (federal reporters based on location)
State Statutory and Case Law (see right)
Regulatory Law (CFR)
Plaintiffs and Defendants
Appellants and Appellees
Opinions (unanimous, majority, concurring, dissenting)
Case Cite Meaning
Williams v. Dominion Technology Partners, LLC, 576 S.E.2d 752 (Virginia, 2003).
Williams is the Plaintiff.
Dominion Technology is the Defendant.
Case was decided by the Virginia Supreme Court.
Reported in Volume 576, page 752 of the Southeast 2nd Reporter.
Symbols for Plaintiff = π Defendant = Δ

10. Classifications of Law
Substantive vs. Procedural law
Civil vs. Criminal law
Federal vs. State law
National vs. International law
Private vs. Public law
Uniform Commercial Code (UCC)

11. International Law
Defined. A body of written and unwritten laws observed by independent nations and governing the acts of individuals as well as governments.
Sources of international law include:
National laws
Customs
Treaties
International organizations and conferences
NAFTA
GATT EU
International Organizations UN
NATO

12. Courts

13. The Judiciary’s Role in American Government
Courts -- interpret and apply the law.
Judicial review—determining the constitutionality of laws—the judicial branch acts as a check on the executive and legislative branches of government – Marbury v. Madison (Marbury appointed as a federal judge by President John Adams. James Madison was to deliver the documents. Thomas Jefferson won presidential election and ordered that the remaining writs not be delivered.
Elena Kagan: Confirmation Hearings 'Vapid and Hollow Charade'
We will come back to the “commerce clause”
Judge Elena Kagan
Confirmation Hearings
Extent of Commerce Clause
Bush v. Gore (u-Tube clip)
Justice Breyer on the US Supreme Court 

14. Group Presentation
Citizens United v. Federal Election Commission  Group 1 = limit campaign spending Group 2 = allow speech
Explain law.  Questions:
Is corp speech the same as individual speech and therefore worthy of the same First Amendment protections - why or why not.
Obama reacted by stating this is a "a major victory for big oil, Wall Street Banks, health insurance companies and other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."  Evaluate that statement.
Newt Gingrich reacted by saying this is a victory for America's middle class.  Evaluate that statement

15. Basic Judicial Requirements
Before a lawsuit can be brought before a court, certain requirements must first be met. These include:
Jurisdiction
Federal
State
Subject
Venue
Standing to Sue

16. Federal Jurisdiction
Federal Question jurisdiction exists when a dispute concerns federal law, statutes, or administrative regulation or treaties of the United States.
Diversity Jurisdiction exists in lawsuits between citizens of different states and the amount in controversy, exclusive of interest and all costs, exceeds $75,000. The “Erie Doctrine” set forth in Erie Railroad v. Tompkins, 304 U.S. 64 (1938).

17. Federal Jurisdiction
Natural person citizenship is legal residence or domicile.
Corporations may have dual citizenship based on:
Nerve Center Test;
Place of Operations Test; or
Total Activity Test.
Federal Courts have jurisdiction over United States.

18. Personal Jurisdiction
Amazon Pulls Out of Colorado. Personal Jurisdiction on the Web, p. 70
Amazon cuts ties to all Colorado sales associates based on new Colorado online sales tax.
2011 update: Amazon sever ties with 10,000 small businesses in CA to avoid collecting CA sales tax.
Personal Jurisdiction
Personal jurisdiction: court has legal authority over the parties to the suit.
Court can have jurisdiction based on: Defendant’s Residence, Defendant’s Act(s) or Location of Property in question.
“Long Arm” Statutes and the “Minimum Contacts” Test for jurisdiction over non-resident defendant if it purposefully availed itself of privilege of conducting business in forum state.

19. Choice of Forum What forum governs?
What happens when there are conflicts among different jurisdictions?
Forum Non Conveniens.
CASE Radeljak v. Daimler-Chrysler Corp. (2006). Granted defendant’s motion to dismiss and did not force DCC to litigate in Croatia.

20. Venue
Venue has to do with the most appropriate location for a trial, which is usually the geographical area in which the event leading to the dispute took place or where the parties reside.

21. Auto Plant Subsidy Case
Standing to Sue
A requirement that a party must have a legally protected and tangible interest at stake sufficient to justify seeking relief through the court system.
Plaintiff must be the proper person.
Plaintiff must have a personal interest in the outcome.
Plaintiff will benefit from a favorable ruling.
The controversy at issue must also be a justifiable controversy, one that is real and substantial, as opposed to hypothetical or academic.
CASE 3.1 ACLU v. National Security Agency (2007). Case dismissed for lack of jurisdiction because plaintiffs had no standing to challenge the wireless wiretap program.
Auto Plant Subsidy Case

22. Trial Courts State courts: Federal courts:
Courts of general jurisdiction may be called by a variety of names.
Courts of limited jurisdiction include:
Divorce courts
Probate courts
Traffic courts
Small claims courts
Federal courts:
Court of general jurisdiction is the U.S. District court.
Courts of limited jurisdiction include:
U.S. Tax Court
U.S. Bankruptcy Court
U.S. Court of Federal Claims
Intermediate Appellate Courts
Supreme Courts

24. Following a Case Through the State Courts
A sample civil court case in a state court would involve the following:
The
Pleadings
Pretrial
Motions
Discovery
Post trial
Motions
Trial
Pretrial
Conference
The Appeal

26. Adversarial System Attorney Represents Client as an Adversary
Judge is Unbiased, Serves to Enforce Rules
Work-Product

27. The Pleadings Default judgment Complaint:
Filed by the plaintiff with the court to initiate the lawsuit; served with a summons on the defendant.
Default judgment
Answer:
Admits or denies allegations made by the plaintiff;
may assert a counterclaim or
an affirmative defense.
Motion to dismiss:
A request to the court to dismiss the case for stated reasons, such as the plaintiff’s failure to state a claim for which relief can be granted.

28. Pretrial Motions Motion for judgment on the pleadings:
Will be granted if the parties agree on the facts and the only question is how the law applies to the facts.
The judge bases the decision solely on the pleadings.
Motion for summary judgment:
Will be granted if the parties agree on the facts. The judge applies the law in rendering a judgment.
The judge can consider evidence outside the pleadings when evaluating the motion.
Motion for Judgment Notwithstanding the verdict

29. Rudy Giuliani – I do not recall
Deposition
Clinton – What “is” is.
Discovery
The process of gathering evidence concerning the case. Discovery involves:
Depositions (sworn testimony by a party or a witness)
Interrogatories (written questions by one party towards the other made with assistance from the attorneys)
Various requests (for admissions, documents, medical exams)
Ethical Consideration, p. 98
Ethical to bury opposing attorney in paper-work in response to a discovery request?

30. Document Retention and Destruction
Corporate documents, both tangible and intangible (computer hard drives and ) can be discovered and used to find the company liable.
Managers must have document retention policies in place.
Necessary Elements of a Document Retention Program:
Well-planned and systematic.
No destruction in the face of a potential lawsuit.
No selective destruction.
Sarbanes-Oxley – felony punishable by up to 20 years in prison
To: David B. Duncan Cc: Michael C. WO: Richard WO Date: 10/16/ :39 PM From: Nancy A. Temple Subject: Re: Press Release draft Attachments: ATT&ICIQ; 3rd qtr press release memo.doc
Dave - Here are a few suggested comments for consideration.
-I recommended deleting reference to consultation with legal group and deleting my name on the memo. Reference to the legal group consultation arguably is a waiver of attorney-client privileged advice and if my name is mentioned it increases the chances that I might be a witness, which I prefer to avoid.
-I suggested deleting some language that might suggest we concluded the release is misleading.
-In light of the "non-recurring" characterization, the lack of any suggestion that this characterization is not in accordance with GAAP, and the lack of income statements in accordance with GAAP. I will consult further within the legal group as to whether we should do anything more to protect ourselves from potential Section 10A issues.
Nancy

31. Pretrial Conference
Either party or the court can request a pretrial conference to:
Identify the matters in dispute after discovery has taken place, or
To plan the course of the trial

32. Jury Selection Case Group 3 = JEB Group 4 = TB
Group Presentation
Jury Selection Case Group 3 = JEB Group 4 = TB

33. Jury Selection
The jury selection process, also known as voir dire, consists of questions directed to prospective jurors to assess potential bias.
Jury video – McMahon, Philadelphia DA Training Video –

34. The typical course of a trial can be diagrammed as follows:
Opening
Statements
Plaintiff’s Introduction of Evidence
Closing
Arguments
Defendant’s Introduction of Evidence

35. Facebook sued in 2008 for allegedly improperly sharing customer information. Facebook offered $9.5 million to settle – plaintiff’s attorneys' get 30% rest goes to a Foundation to promote privacy rights. Foundation established by Facebook. “Paying itself to get out of a broad range of legal issues.”
Are class actions good/bad?
Class Actions
If defendant’s actions affected a group of people, case may be brought as class action.
Written notice to all potential class members. (But a member may “opt out.”)
Advantages in product liability cases
A product liability class action suit has the following advantages:
Settlement binds present and future claimants,
Standardized payment schedules,
Some claimants can be excluded, and
Filing and settlement can occur in the same day.
2011 Supreme Court Case
WallMart
Class action not allowed for 1.6 million female workers.

36. Post Trial Motions
Ferlito v. Johnson & Johnson Products, Inc.
Mr. and Mrs. Ferlito went to a Halloween party dressed as Little Bo Peep (Mrs) and a sheep (Mr.)
Mr. Ferlito’s sheep costume made from J&J cotton balls
Mr. Ferlito lit a cigarette and his cotton balls caught on fire causing third degree burns.
Jury awarded $550,000
After a jury has rendered its verdict, either party may make a post trial motion. These include:
Motion for judgment N.O.V. (Notwithstanding the verdict) will be granted if the judge is convinced that the jury was in error.
Motion for a new trial will be granted if the judge is convinced that the jury was in error, or there was newly discovered evidence, misconduct by the participants during the trial, or error by the judge.
Not actual picture of Mr.Ferlito

37. The Appeal
Either party can appeal the trial court’s judgment to an appropriate court of appeals.
After reviewing the record on appeal, the abstracts, and the attorneys’ briefs, the appellate court holds a hearing and renders its opinion.

38. Enforcing the Judgment
Securing a verdict does not mean there are assets to pay the judgment.
One of the primary factors to decide before filing suit is whether the defendant has resources or assets to pay a judgment.

39. Roles of an Attorney
Adviser – advises a client on steps to take to avoid possible legal problems.
Drafter – writes contracts and other documents for clients.
Negotiator – persuades, argues, or settles with another party on a client’s behalf.
Advocate – presents a client’s position in court.
Attorney-Client Privilege. Attorney-client privilege prevents a court and other government bodies from compelling disclosure of the information. (WORK PRODUCT – NOT DISCOVERABLE)

40. Legal Representation and Alternative Dispute Resolution

41. Question Would you sue? What do you do?
You owned 100 acres of valuable undeveloped residential real estate. You entered into a contract with a developer to develop the land on August 30, The developer agreed to pay you as follows:
$10,000 down, (paid August 30, 2009)
$100,000 on the one year anniversary, (paid August 30, 2010)
$500,000 on the two year anniversary and (due August 30, 2011)
$1,000,000 payment on the third anniversary.
The developed just called you and said it will not make the $500,000 payment.
The developer has put in roads and plotted the land but has failed to sell any lots. The land is currently worth less than the remaining contract payments.
Would you sue?
What do you do?

42. Decision to File a Lawsuit
Decision to File Factors include:
Whether the law provides a remedy.
Whether the person can expert to prevail.
Whether the expected benefit will compensate for expenses and other costs, including any business lost as a result of the lawsuit and accompanying publicity.
Decision to Defend Factors include:
Relationship Risk
Publicity Risk
Cost Risk (settlement may be cheaper)

43. The Search for Alternatives to Litigation
Alternative dispute resolution (ADR)
Less costly
Less time-consuming
Private

44. The Search for Alternatives to Litigation
Forms of ADR include:
Negotiation
Mediation
Arbitration
Summary Jury Trial
Mini-trial
Rent-a-
Judge

46. Negotiation Exercise Group 3 and 1 join together against group 8
Joan works as a paralegal at a 50 person law firm (30 attorneys and 20 support staff). Her immediate supervisor, Jim, tells sexual jokes that bother Joan. Once he showed her an x-rated cartoon that he thought was funny. Jim also ogles Joan and asks Joan to shut the door when they work together in his office. He sometimes touches her shoulder or pushes their chairs so close together their legs touch. This makes Joan uncomfortable. He also uses double entendres around her with one example being the time Joan said “it’s going to be a long hard night” (referring a tough case they are working on) and Jim replied “that’s what she said” and laughed. Assume Jim’s overall behavior amounts to illegal sexual harassment.
Joan talks to Jim about this and he tells her to lighten up and try to have some fun. Jim says he is just trying to reduce tension in an often stressful work environment.
Joan sues for sexual harassment.
You are on one side to settle the case. Take 3-4 minutes to plan strategy and then 6-8 minutes to negotiate a settlement. See additional confidential facts.
Joan: Groups
Jim Groups
If you represent Jim, move your spot to do the negotiating (Joan teams stay put)
Group 3 and 1 join together against group 8

47. How much money should she get
How much money should she get? Text word “HOWMUCH” space and then an amount (i.e. “HOWMUCH $1”). What else?
Text HOWMUCH plus amount to 37607
Or submit HOWMUCH plus message to

48. How much money should she get
How much money should she get? Text word “HOWMUCH” space and then an amount (i.e. “HOWMUCH $1”). What else?

49. Negotiation and Mediation
MBA Information Session
Looking for Volunteers (4-5)
September 6:30
Negotiation and Mediation
Negotiation
With or without attorneys
Simple and fast
No third party
Mediation
Third party involved
With or without attorney – usually no attorneys
Arbitration
More formal
Generally binding
Key is to know what you want and when to you are better off walking away
- Negotiation Exercise
Start here week 3

50. Negotiation: Planning
Establish Best Alternative to a Negotiated Agreement (BATNA).
Establish your interests versus your position.
Evaluate each negotiating issue.

51. Mediation
In many ways, mediation is an extension of the parties’ negotiations.
History of Mediation.
Selecting a Mediator.
Society of Professionals in Dispute Resolution (SPDR).
American Mediation Council (AMC).

52. Mediation Confidentiality. When to Use Mediation. Mediation Process.
Dangers.

53. Current Events Report – Arbitration Clauses Vaseem Shaikh Angela Sorenson

54. The Federal Arbitration Act (FAA)
Provides Enforcement for Arbitration Decisions. FAA provides the means for enforcing the arbitration procedure that the parties have established for themselves.
FAA Covers Arbitration Clauses in Interstate Commerce. The FAA covers any arbitration clause in a contract that involves interstate commerce
Contract Between Parties
CASE 3.4 County of Chautauqua v. Civil Service Employees Association (2007). Court granted county’s petition for permanent stay of arbitration as to which employees to lay off, but granted union’s motion to compel arbitration of bumping.
Law requires municipalities engaging in layoffs to first decide which positions are essential to providing services and then to protect senior employees offering those services. Cannot comply with the collective bargaining agreement that provides must look solely at seniority and not need.

55. Question 5, P. 111 - volunteer to cover
Frank Boomer received a contract in the mail from his long distance carrier, AT&T.
Automatically accepted if no action – must call to object
Boomer did nothing
Later sued in a class-action for overcharging him
Question 5, P volunteer to cover
Changing rates for AT&T contract
Arbitration or Litigation?
AT&T Case – Nov 9, 2010
AT&T Mobility v. Conepcion
US Supreme Court Case
$30.22 sales tax on “free phone”
Arbitration clause prevents class action lawsuits
Plaintiffs argue the clause is “unconscionable”
Arbitration Clause Details
AT&T must pay a minimum of $7,500 if it loses
AT&T pays all arbitration fees
AT&T v. Ting (2003)
US Supreme Court Case
AT&T required to establish contracts with its customers
AT&T included binding arbitration clause in its contracts
AT&T’s own study concluded that most customers would stop reading the contract and toss it.
Contract sent was automatically accepted if not cancelled.

56. Arbitration Clauses in Employment Contracts
What about for medical procedures?
Hooters case
Arbitration Clauses in Employment Contracts
Why Employers Like Arbitration for Employee Disputes. Arbitration is easier, faster, and less costly than litigation. Therefore, more businesses are including arbitration clauses in their contracts. What happens if a potential employee objects to the clause? Is this mandatory condition enforceable?
Is that a Problem?
Why might victims of employment discrimination prefer to litigate their claims in a judicial forum rather than having them arbitrated, even assuming that arbitration proceedings would be unbiased and would not violate due process rights?

57. The Arbitration Process
The three steps of arbitration are:

58. Setting Aside an Arbitration Award
Crime or Contrary to Public Policy. No award will be enforced if compliance with the award would result in commission of a crime or would violate public policy. An arbitration award may also be set aside because of defects in the arbitration process.
Bias or Corruption.
Award was result of corruption, fraud, etc.
The arbitrator exhibited bias or corruption.
The arbitrator’s actions substantially prejudiced the rights of one of the parties.
The arbitrator exceeded his or her powers.
Merits of the Case – will not be reviewed
Sufficiency of evidence
Arbitrator’s reasoning

59. Disadvantages to Arbitration
Arbitration has some disadvantages:
Unpredictable, since arbitrators are not required to follow prior precedents, but must only follow whatever rules have been provided by the parties.
Expensive, sometimes as expensive as litigation.
Time consuming, since discovery is often unavailable, the parties may have to call more witnesses than they would in litigation.

60. Court-Mandated ADR vs. Court-Annexed Arbitration
Most states (and about half the federal courts) have adopted programs to encourage the parties to settle their disputes through ADR.
Some courts require parties to submit to ADR before proceeding to trial.
Court-Annexed Arbitration
Some states require the parties to undergo non-binding arbitration before proceeding to trial.
Note that in court-annexed arbitration, either party may reject the award.
Court-Related Mediation

61. Whole Foods email Issue – p. 108
Save for Ankur Nick current events week 4
Whole Foods Issue – p. 108
Discuss, if time.
Should U.S. sue to stop this?
What is the relevant market?
How damaging is Whole Foods CEO John Mackey?
“eliminate a competitor” and
“avoid nasty price wars.”
"Rahodeb“ his blog name on Yahoo
"The end game is now underway for OATS.... Whole Foods is systematically destroying their viability as a business--market by market, city by city."
By buying [Wild Oats] we will…avoid nasty price wars in Portland (both Oregon and Maine), Boulder, Nashville, and several other cities which will harm [Whole Foods'] gross margins and profitability.  By buying [Wild Oats]…we eliminate forever the possibility of Kroger, Super Value, or Safeway using their brand equity to launch a competing natural organic food chain to rival us…[Wild Oats] may not be able to defeat us but they can still hurt us….[Wild Oats] is the only existing company that has the brand and number of stores to be a meaningful springboard for another player to get into this space.  Eliminating them means eliminating this threat forever, or almost forever.

62. ADR Around the Globe
Other countries also encourage mediation, arbitration, and other forms of ADR. Examples:
Japan has recently authorized neutral panels to act as mediators in product liability suits.
China passed an arbitration law in 1995 that spells out what types of disputes are arbitrable, the form and content of valid arbitration clauses, etc., all of which should make it simpler for disputes to be settled through ADR. Article on China as Location for arbitration.

63. Constitutional Authority to Regulate Business

64. Constitutional Basis for Business Regulation
The commerce clause (next slide)
The contracts clause (retroactive adjustment of pay for executives?, Special treatment of unions/others in GM and Chrysler)
Bill of Rights
Freedom of Speech (commercial advertising, business lobbying, business political contributions)
Due Process
Compensation for a taking (recent changes to MN Law)

65. The breadth of the commerce clause:
The Commerce Clause “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
The breadth of the commerce clause:
Gibbons v. Ogden (1824) – ferry between NY and NJ “substantially affected commerce” Exclusive right to navigate ferry in NY waters
Wickard. V. Filburn (1942) – farmer growing wheat for own use
CASE Heart of Atlanta Motel v. United States (1964). Local hotel that had 75% out-of-state guests refused to rent rooms to blacks in violation of federal law and sued to have the law unconstitutional
United States v. Lopez (1995). School gun free zone law
Health Reform – Commerce? Huge part of economy – but is doing nothing (i.e. not buying insurance) commerce?
Can you think of any businesses in today’s economy that are purely local in charter? Anything the federal government cannot regulate?

66. Can a Georgia law require contoured rear fender mud guards when other states require square ones?
The Supremacy Clause
The U.S. Constitution provides that the Constitution, laws, and treaties of the United States are “the supreme law of the land.”
Whenever a state law directly conflicts with a federal law, the state law is rendered invalid.
Preemption occurs when Congress chooses to act exclusively in a concurrent area.

67. Business and the Bill of Rights
Freedoms guaranteed by the Bill of Rights included the following:
Freedom of Speech
Freedom of Religion
Freedom from Compelled
Self-Incrimination
Freedom from Unreasonable
Searches and Seizures

68. Freedom of Speech Political speech – Reasonable restrictions
Corporate political speech (campaign finance laws).
Commercial speech (advertising)
Lower standard
false or misleading advertising
Central Hudson Test
Substantial Government interest
Law directly advances that interest
Law goes no further than necessary
CASE 4.2 Bad Frog Brewery, Inc. v. New York State Liquor Authority (1998).

69. Requirements of New Law
Freedom of Speech
Can Government Force Tobacco Companies To Add Graphic Warnings?
Requirements of New Law
Companies must rotate between 9 images
Must be printed on top half – front and back
Must constitute 20% of any advertising
Companies will have to spend 10s of millions of dollars to comply