CH 4: Courts and Alternative Dispute Resolutions

small claims courts

are inferior trial courts that hear only civil cases involving claims of less than a certain amount, such as $5,000 (In TX $20,000); Procedures are generally informal, and lawyers are not required (in a few states, lawyers are not even allowed)

question of fact

deals with what really happened in regard to the dispute being tried

question of law

concerns the application or interpretation of the law

judge

Only a ___ (not a jury) can rule on questions of law.

writ of certiorari

is an order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review.

the rule of four

at least 4 out of 9 justices have to approve for the writ of certiorari to be issued

shadow docket (or orders list)

includes so-called emergency appeals from parties that believe they will be unrecoverably harmed without a rapid response.

litigation

the process of resolving a dispute through the court system

Alternative Dispute Resolution (ADR)

The resolution of disputes in ways other than those involved in the traditional judicial process.

Negotiation, mediation, and arbitration

what are the forms of ADR?

award

arbitrator’s decision is called an:

arbitration clause

A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.

American Arbitration Association

AAA stands for

52

how many courts are in the US court system

jurisdiction, venue, and standing

what are the three basic judicial requirements

interpret laws and apply to specific situations

what is the essential role of the judiciary

judicial review

process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch

Marbury v Madison (US 1803)

what case established the power of judicial review; established the power of the supreme court by first interpreting the court

plaintifs

___ initiate lawsuits, so they must show the court in which they file the case how the court has power

jurisdiction

“power to speak the law”

in Personam, In Rem, and Subject Matter

what are the three types of jurisdiction

In Personam

jurisdiction over the person

defendant

in personam jurisdiction is focused on the ___.

resident and non-resident

what are the two types of in personam jurrisdiction

residents of the state

if the defendant resides in the state, then they can be considered ___ under in personam jurisdiction

long-arm jurisdiction

permits courts jurisdiction over non-residents when the defendant has minimum contacts

minimum contacts

connections that the defendant has to the state that justifies the state to have power over the defendant

state

Long-arm statutes apply to ___ courts.

the defendant injure someone within the state, breech or form a contract within the state, or come to the state regularly to do business

what are 3 examples of minimum contacts if the defendant is a non-resident individual of the state

do business in the state, advertise or sell products within the state, or place goods in “stream of commerce” with expectations of purchasing by residents of the state

what are 3 examples of minimum contacts if the defendant is a non-resident business (corporation) of the state

their rights are waived

If the defendant doesn’t timely and properly appear in the case, then:

In Rem

jurisdiction over the property

In Rem

used in disputes where the property is the subject matter of the controversy (boat/land)

courts territorial jurisdiction

for In Rem jurisdiction, the property must be within:

In Rem

type of jurisdiction that allows the party to file an action against a non-resident personally in a court that can exercise jurisdiction over the nonresident’s property

In Rem

jurisdiction used when Long-Arm Jurisdiction (in personam) cannot be established over the nonresident

establishing ownership, damages

In Rem jurisdiction concerns ____ of property, not filing for ___ of the property.

In Personam

Courts prefer ___ jurisdiction

property is being disputed, property must be within the court’s territorial jurisdiction, allows the party to file an action against a non-resident personally in a court that can exercise jurisdiction over the nonresident’s property, Long-Arm Jurisdiction cannot be established over the nonresident

what are the four rules for in rem jurisdiction? ALL 4 must be present to use in rem

subject matter

limits on the types of cases that a court can hear

subject matter

___ Jurisdiction is the only type of jurisdiction that can NEVER be waived.

subject, dollar amount, level of crime, type of proceeding (appeal or trial)

Subject matter Jurisdiction is limited by:

statute or constitutional provision

The subject matter jurisdiction is established by ___

Courts of General Jurisdiction

hear many cases/types; both civil and criminal;

courts of limited jurisdiction

can only hear specific types of cases; controls what can be filed for suit in this case

efficiency

The goal of courts of limited jurisdiction is:

probate and bankruptcy court

examples of courts with limited subject matter jurisdiction

original jurisdiction

when the case is being heard by trial court for the first time (first time the case is EVER being heard)

courts of first instance

the trail court when original jurisdiction occurs is also known as the:

appellate jurisdiction

reviewing courts at the lower level

US Supreme Court

What is the highest court of appellate Justice

Federal questions and Diversity of Citizenship

What is the Jurisdiction of the Federal Courts?

Federal questions

questions of the law rooted in federal sources of law (federal statutes/ rules and regulations/ US constitution/ common law/ treaties)

Judicial review

federal questions provide the basis for __.

Diversity Jurisdiction

Diversity of citizenship is also known as

plaintiff and defendant must be citizens/residents of different states AND amount in controversy must exceed $75,000

What are the two requirements of diversity of citizenship?

it was incorporated and its principal place of business is located

Corporations are citizens of the state where:

headquarters, main factory, most of its business

What are some words that imply the “principal place of business”

Concurrent Jurisdiction

when both federal and state courts have power over the case

Exclusive Jurisdiction

only federal or only state courts have power over the case

bankruptcies, patents, copyrights, federal crimes, suits against the US, and admirality

Examples of Exclusive Federal jurisdiction

Divorce, Adoption, etc

Examples of Exclusive State Jurisdiction *this takes precedence over diversity of citizens

diversity of citizenship and most cases involving federal questions

Examples of Concurrent Jurisdiction

Sliding Scale Standard

Three types of Internet business contacts:

1) substantial business conducted over the internet

2) some interactivity through a website

3) passive advertising

International Jurisdiction

most courts indicate that min contacts is enough to compel the defendant to appear and therefore the business has to comply with the laws in any jurisdiction in which it targets customers for its products

venue

refers to the geographic location where it is most appropriate for the trial to occur (within the jurisdiction)

defendant

venue is to make it more fair for the ___

general rule for venue

venue is proper in county where the defendant resides OR the cause of accident occurs

interest of justice or convenience of the parties

court can change venue for:

interest of justice

defendant or plaintiff can’t get fair trial here at this venue (too much publicity for impartial jury)

Convenience of the Parties

easier on parties, witnesses, etc. to move venue (must be a very strong argument)

plaintiff’s standing

____ invokes the power of the court. No ____ = no court has power

harm, causation, and remedy

What are the three parts of standing

standing

plaintiff must have ___ in order for a court to have power (jurisdiction)

standing

to have ___ to sue, one must have a sufficient stake in a controversy to seek judicial resolution (plaintiff must be entitles to the remedy)

standing

to have ___ to sue, one must have been injured or have been threatened with injury by the action

justiciable controversy

controversy “ripe” for judicial review, which is real and non-hypothetical

standing

to have ___ to sue, one must have justiciable controversy

trial

the US district courts are the ___ courts of the Federal system

one

each state has at least ___ federal district court

13

there are ___ US Courts of Appeals

population

the Circuit Court of Appeals is separated by ___.

ADR

disposing a case without going to trial- judges highly favor these

Negotiation

two parties coming together to air differences and work together to avoid a lawsuit; can happen before or during filing of a trial; informal

mediation

parties decide how to handle the case using a mediator to reach an agreement

arbitration

two parties air a case by calling in an arbitrator to decide the case for them; usually agreed to in a contract