2. © 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.  Judicial Review was established by the U.S. Supreme Court in Marbury v. Madison (1803) where Chief Justice Marshall wrote:  “It is emphatically the province and duty of the judiciary to say what the law is….” 2

3. © 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” (to speak) is the power of a court to hear a dispute and to “speak the law” into a controversy and render a verdict that is legally binding on the parties to the dispute. 3

4. © 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.  Persons: power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate. 4

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.  In Rem: power to decide issues relating to property, whether the property is real, personal, tangible, or intangible.  A court generally has in rem jurisdiction over any property situated within its geographical borders. 5

6. © 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.  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. 6

7. © 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.  Corporate Contacts: does business or advertises within state.  CASE 2.1 Southern Prestige Industries, Inc. Independence Plating Co. (2010). Did the New Jersey firm have minimum contacts with North Carolina? 7

8. © 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.  General and Limited Jurisdiction.  Limitation on the types of cases a court can hear, usually determined by federal or state statutes. Example: probate, bankruptcy, criminal.  Usually defined by statute. Can also be limited to amount in controversy (amount of monetary damages). 8

9. © 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.  Courts of original jurisdiction is where the case started (trial).  Courts of appellate jurisdiction have the power to hear an appeal from another court. 9

10. © 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.  “Federal Question” cases:  Rights or obligations of a party are created or defined by some federal law.  “Diversity of Citizenship” cases:  Parties are not from the same state, and  The amount in controversy is greater than $75,000. 10

11. © 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.  Exclusive: only one court (state or federal) has the power (jurisdiction) to hear the case.  Concurrent: more than one court can hear the case. 11

12. © 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.  Courts use a “Sliding Scale” Standard to determine whether to exercise jurisdiction.  International Jurisdiction Issues. No Yes Substantial Business Interaction Passive Website Some Interaction 12

13. © 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.  Venue is concerned with the most appropriate location for the trial.  Generally, proper venue is whether the injury occurred. 13

14. © 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.  A party must have suffered a legal injury and have a sufficient “stake” in the controversy.  CASE 2.2 Oregon v. Legal Services Corp. (2009). Was there a “concrete” injury to the state? 14

15. © 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. Ct. Criminal Appeals Ct. Criminal Appeals Supreme Court Supreme Court Court of Appeals Court of Appeals District Court County Court Municipal Court Municipal Court Justice Court Justice Court Texas Courts U.S. Supreme Court U.S. Supreme Court Circuit Courts of Appeals Circuit Courts of Appeals U.S. District Court U.S. District Court Federal Courts 15

16. © 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. 16

17. © 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.  “Courts of record”-court reporters.  Small Claims Courts are informal, inferior courts with limited amounts in controversy (usually $5,000).  Opening and closing arguments.  Juries are selected. 17

18. © 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.  Evidence presented (witness testimony, physical objects, documents, and pictures.)  Witnesses are examined and cross- examined.  Verdicts and Judgments are rendered. 18

19. © 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.  Review trial courts proceedings to determine whether the trial was according to the procedural and substantive rules of law.  Generally, appellate courts will consider questions of law, but not questions of fact. 19

20. © 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. 20

21. © 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.  The two most fundamental ways to have your case heard in a supreme court are:  Appeals of Right.  By Writ of Certiorari.  21

22. © 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 22

23. © 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.  Trials are very expensive and sometimes take many months to resolve.  Alternative dispute resolution (ADR) methods are inexpensive, relatively quick and leave more control with the parties involved. 23

24. © 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.  Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets.  Most common: negotiation, mediation, arbitration. 24

25. © 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.  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, from a position of strength. 25

26. © 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.  Involves neutral 3 rd party ‘mediator’.  Mediator talks face-to-face with parties (in different rooms) to determine “common ground.”  Advantages: few rules, customize process, parties control results (win-win).  Disadvantages: mediator fees, no sanctions or deadlines. 26

27. © 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.  Neutral 3 rd party renders a legally- binding decision; usually an expert or well-respected government official. 27

28. © 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.  Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence.  Arbitrators do not have to issue written opinions.  Generally, no discovery available. 28

29. © 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.  Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award.  Courts are not involved in arbitration unless an arbitration clause in a contract needs enforcement. 29

30. © 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.  Issue of Arbitrability: a party compels arbitration and a court resolves the issue of whether arbitration is required.  CASE 2.3 NCR Corp. v. Korala Associates, Ltd. (2008).  Mandatory Employment Arbitration in Employment: generally enforceable. 30

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.  Early Neutral Case Evaluation.  Mini-Trial.  Summary Jury Trials. 31

32. © 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.  Non-profit organizations:  American Arbitration Association.  Better Business Bureau. 32

33. © 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.  Also called ODR.  Uses the Internet to resolve disputes.  Still in its infancy but is gaining momentum.  See, e.g., Resolution Forum, Inc., Virtual Magistrate Project. 33

34. © 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.  Forum Selection and Choice-of-Law clauses in contracts govern the transaction.  Arbitration clauses are generally incorporated into international contracts. 34