BUL3130-Lesson 04: Alternative Dispute Resolution & The Constitution

______ states the Constitution will become effective upon ratification of the states.

Article VII

Which of the following statements is true of federalism?

The federal government recognizes that it was created by the states.

Which of the following statements is true of the regulation of foreign commerce under the commerce clause?

The power to regulate foreign commerce is total and vested exclusively in the federal government.

Which of the following statements is true of voluntary arbitration?

The procedure is not tied to a court and is not bound by rules of evidence.

Which of the following statements is true of the quasi-strict scrutiny tests?

The quasi-strict scrutiny tests are used for cases that fall between the minimum rationality and strict scrutiny approaches.

establishment clause and free exercise clause

The two clauses stemming from freedom of religion:

Which of the following statements is true of caucuses in dispute resolution?

They are sometimes used by mediators to make the mediation processes more productive.

Which of the following statements is true of focus groups?

They are used by attorneys, and they point out weaknesses in a particular case.

Which of the following statements is true of principled, interest-based negotiations?

They involve seven elements that vary in importance depending on the factual situation in dispute and on the parties' individual perspectives.

Which Amendment? -States that no state shall make or enforce any law which shall: —Abridge the privileges or immunities of citizens of the US —Deprive any person of life, liberty or property, without due process of the law —Deny to any person within its jurisdiction the equal protection of the laws

Fourteenth

Which of the following statements is true of the supremacy clause?

Under this clause, it is immaterial that a state did not intend to frustrate the federal law if the state law in fact does so.

The ______ creates the Congress, the presidency and vice presidency, and the Supreme Court of the United States.

United States Constitution

Only amendment that protects a business -The press is accountable to what is printed -Construed to prohibit prior restraints on publications -Libel is used to recover damages as a result of printed defamation of character

Freedom of Press

Which of the following statements is true of commercial speech?

Freedom of speech for corporations may not be as extensive as the right of an individual.

Which of the following statements is true of preemption?

If a federal law preempts a subject, then any state law that attempts to regulate the same activity is unconstitutional.

Which of the following statements is true of the Federal Arbitration Act?

It covers any arbitration clause in a contract that involves interstate commerce.

Which of the following statements is true of freedom of speech?

It covers both verbal and written communications.

Which of the following statements is true of the due process clause?

It does not prevent private corporations from acting in an arbitrary manner.

Which of the following statements is true of the contract clause?

It does not restrict the federal government's power to impact contractual relationships.

Which of the following statements is true of the strict scrutiny approach?

It is applied to cases involving classifications directed at fundamental rights.

Which of the following is not true of an award?

It is subject to judicial review on the merits of a decision.

Which of the following statements is true of freedom of the press?

It is usually construed to prohibit prior restraints on publications.

Which of the following describes an element of a conflict?

It leads to disputes when coupled with claims that are rejected.

-Private development company wants to buy up properties in a poor neighborhood, 9 houses won't leave, company applies for condemnation order and gets it— essentially, forces poor people out of their homes and leaves them without ability to fight back -Verdict was that it was legal and okay to take private property for the benefit of a private company and a broad/vague hope that it would "better the local economy"

Kelo v. City of New London

______ cases compensate individuals for harm inflicted by defamatory falsehoods.

Libel

______, a tort theory, is used to recover damages as a result of printed defamation of character.

Libel

Hot Hogs Corporation, an international hotdog eatery, produces a misleading television advertisement, which shows that one hotdog of Hot Hogs contains only 30 grams of fat. A consumer organization, a group that protects consumers from corporate exploitation, files a complaint with a federal institution which in turn issues an order prohibiting Hot Hogs from making such statements about its products without scientific evidence. This instance of regulation on advertising about food products is an example of a limitation on ______.

commercial speech

an airport authority resolution declared the central terminal area "not open for First Amendment activities"; the resolution was unconstitutional under the _______ Doctrine- bc it created a "First Amendment-Free Zone" at the airport

Overbreadth

According to Roger Fisher, William Ury, and Bruce Patton, any successful negotiation must conclude with the disputing parties making realistic _____.

commitments

______ cases involve whether proper notice has been given and a proper hearing has been conducted.

Procedural due process clause

-Westboro congregation members picketed at the funeral and memorial service of marine Lance Corporal Snyder causing emotional distress and invasion of privacy by intrusion upon seclusion -Does the First Amendment prohibit holding Westboro liable for its speech? *Court declared that the church can't be sued bc they were just exercising their first amendment right

Snyder v. Phelps

_______ is the term used when a dispute has been referred to arbitration.

Submission

Free speech also covers conduct or actions considered ________ speech.

Symbolic

The ______ to the U.S. Constitution reinforces federalism by reserving some powers to the states and to the people.

Tenth Amendment

The takings clause of the Fifth Amendment to the Constitution allows

government to take specific resources away from private owners for public use upon the payment of just compensation.

In the context of judicial review of voluntary arbitration, error of law renders an arbitration award void only when __________

it violates a positive mandate of the law

Which of the following federal laws preempts a state law that authorizes a tort claim by workers that a union has breached its duty to ensure a safe workplace?

the Landrum-Griffin Act

A zoning ordinance holds that writing anything on both public and private properties, including one's own private property, is a crime. This law is most likely to be unconstitutional based on the ______.

overbreadth doctrine

An airport authority resolution declared the central terminal area "not open for First Amendment activities." The resolution was unconstitutional under the First Amendment ______.

overbreadth doctrine

The ______ is most likely to be applied when the legislators have gone too far in seeking to achieve a goal.

overbreadth doctrine

Under the minimum rationality approach, a(n) ______ qualifies as a legitimate goal of government.

permissible state end

A negotiation between a seller and a buyer begins with each party stating their respective expectations in a competitive style. The seller starts with as high an asking price as is considered reasonable. Likewise, the buyer begins with the lowest reasonable price. In the context of negotiation methods, this scenario is an example of _____.

positional bargaining

If the ______ test is used, the classifications are usually found to be unconstitutional under the equal protection clause.

strict scrutiny

The ______ test is used if the classification involves either a suspect class or a fundamental constitutional right.

strict scrutiny

Under the _______ _______ test, a classification will be a denial of equal protection unless the classification is necessary to achieve a compelling state purpose. (i.e. cases directed at race, national origin, etc)

strict scrutiny

Under the ______, courts may be called upon to decide if a state law is invalid because it conflicts with a federal law.

supremacy clause

Classifications directed at race, national origin, and legitimacy of birth are ______.

suspect classes

The ______ of the Fifth Amendment to the Constitution allows the government to condemn and take specific private resources for money under the power called eminent domain.

takings clause

Which Amendment? freedom of religion freedom of speech freedom of the press

1st Amendment

What percentage of tort cases filed in the U.S. District Court are reported to be settled prior to trial?

98%

Which of the following statements most accurately describes a post-dispute arbitration agreement?

A clause regarding arbitration that is signed when parties are already in dispute and decide that arbitration is better than litigation.

Which of the following statements is true of the minimum rationality approach?

A permissible state end is not prohibited by another provision of the Constitution.

Which of the following statements is true of amendments and basic protections?

Constitutional rights may be narrowly interpreted during emergencies such as war.

The law protecting the owners of a business organization from the managers who run it for them is _____.

Corporate governance

_____ occurs when a trial judge requires the disputing parties to submit to the mediation process before a complaint can be litigated formally.

Court-annexed mediation

Which of the following is a type of public law?

Criminal Law

An arbitrator's award must __________.

give a disclosure of findings and the reasons if an arbitration agreement so requires

Major limit of freedom of the press is ________; sometimes court is ordered to be cleared of the press to protect for example children, victims of sexual assault, etc

Defamation

Which of the following statements is true of the use of alternative dispute resolution (ADR) techniques?

Disputing parties can agree to use an ADR technique after a dispute arises.

Prevents governmental bodies from acting in a manner that is arbitrary, capricious, or unreasonable

Due Process of Law

______ means that the government may not act in a manner that is arbitrary, capricious, or unreasonable.

Due process

Laws need to protect people equally, cannot discriminate unless with really good reason

Equal Protection

Mary Beth Tinker (60's era) was 13 at the time and wanted to protest Vietnam War by wearing a black armband with her friends; Supreme Court ruled that students do not shed constitutional rights at the public school gate (unless it disrupted the education process) —Can't stop something just cause it offends you —Can stop something if it causes violence, disruption, etc.

Tinker v. Desmoine

Which of the following is the most accurate listing of dispute resolution options from highest cost to lowest cost?

Trial, Arbitration, Negotiated Settlement

Which of the following is given first priority when various laws are not consistent?

U.S. Constitution

people protested draft cards by burning them and government said that was not okay bc government has substantial interest in keeping up smooth draft system

U.S. v O'Brien

Which of the following classifications is subject to a rational-basis test? A. legitimacy

age

The decision handed down by an arbitrator in a hearing is called a(n) _____.

award

Unlike mandatory arbitration, voluntary arbitration is __________.

based on parties' agreement after dispute arises or on contract clause before dispute arises

Unlike an arbitrator, a mediator __________.

cannot impose a binding solution on the disputing parties

The effect of the Federal Arbitration Act on state laws is that state laws __________.

cannot prevent arbitration of disputes if the disputing parties are engaged in interstate commerce

The concept of incorporation through the ______ has made the protections of the Bill of Rights applicable to individuals subject to state and local regulations.

due process clause

The First Amendment states that Congress shall make no law "respecting an establishment of religion" (the __________ clause) "or prohibiting the free exercise thereof" (the _______ _______ clause)

establishment, free exercise

The separation of powers between levels of government is known as ______.

federalism

Which Amendment? -Eminent Domain: Allows the government to take private property for public use after paying just compensation

fifth

Nelly and Mario are graffiti artists who belong to a minority community. They create designs and paintings depicting social issues that affect their community. They make sure their artwork is not obscene and does not incite a hateful reaction. They exhibit their art pieces at art shows. In this case, which of the following First Amendment protections is applied to the actions of Nelly and Mario?

freedom of speech

Quasi-strict scrutiny tests are used in cases involving classifications based on ______.

gender

Strict scrutiny tests are applied to cases involving classifications based on ______.

legitimacy

Gerard works for a weekly magazine in the state of California. He is held responsible for publishing an article that falsely accuses the governor of the state. In this case, Gerard is most likely to be accused of ______.

libel

The courts have generally defined just compensation in terms of

market value of a specific resource.

Minimum rationality tests are applied to cases involving ______.

marriage

Under the ________ ________ approach, a law creating different classifications will survive an equal protection challenge if it has a rational connection to a permissible state end. (i.e. state law restricting advertising on trucks bc it is reasonable to assume it would provide for safer roads) (presumed valid: height, weight, age, testing)

minimum rationality

Positive law is contrary to the philosophy of _____.

natural law

When a losing party in an arbitration proceeding makes allegations of bias against an arbitrator, the allegations __________.

normally do not affect the results of arbitration

A municipality zoning ordinance attempts to regulate the placement of satellite dish antennas in residential areas by specifying the size and location requirements. The Supreme Court rules that the zoning ordinance is unconstitutional as it violates the Federal Communications Commission Regulation law. In this case, the ruling of the Supreme Court illustrates the concept of ______.

preemption

Libel cases compensate individuals for harm inflicted by ______.

printed defamatory falsehoods

A military institute in a particular state launched a separate program for women. However, the senior members of the program held that women would not be provided with the same type of rigorous military training, facilities, courses, faculty, financial opportunities, and alumni connections that were provided to male cadets. The women cadets of the program filed a suit in order to get justice. Which of the following approaches is most likely to be adopted in this case?

quasi-strict scrutiny approach

The Second Amendment consists of the ______.

right to possess guns

The strict scrutiny approach is applied to cases involving rights such as the

right to travel.

Which Amendment? One's right to possess guns

second

Snow Crystals Inc., a leading construction company, has constructed a skate park on government land after signing a leasing agreement with the state government. A few years later, the state authority sanctioned the Nightingale Bridge Company to build a bridge that would use the land where the skate park is already constructed. The proprietors of Snow Crystals claim that the state authority has violated the leasing agreement. Which of the following is most likely to be applied in this case between Snow Crystals Inc. and the state government?

the contract clause

Mandatory arbitration can be constitutional if __________.

the disputing parties include a contract clause for arbitration in the agreement before dispute arises

Which of the following clauses states that Congress shall make no law respecting an establishment of religion?

the establishment clause

A school prohibits its students from praying even during breaks. It also prohibits its students from forming prayer groups. In this case, which of the following clauses of the First Amendment is the school most likely to violate?

the free exercise clause

In the absence of a statute, the rights and duties of the disputing parties to a submission for arbitration are described and limited by _____.

the parties' agreement

When arbitration is pursuant to state statute, _____.

the statute determines what grounds may be used to challenge an award in court

Valencia secures a good grade with a 4.0 GPA in her admission test. However, she is denied admission by a community college. She files a suit stating that she was discriminated on the basis of race. She claims that she was rejected because the college used race as an important factor, giving applicants belonging to minority groups a greater chance for admission than students with similar credentials belonging to disfavored racial groups. In deciding this case using the equal protection clause, which of the following approaches is most likely to be used by courts?

the strict scrutiny approach

A state law imposed additional restrictions on companies in hiring foreign workers. The Supreme Court held that the state law violated the federal immigration law and declared the law unconstitutional. In this case, which of the following supports the act of the Court?

the supremacy clause

The meaning and application of the equal protection clause have been central issues in cases involving ______.

voting requirements

Which of the following classifications is most likely to be presumed valid under the minimum rationality approach?

weight