Business Law Chp. 2

U.S. Court of Appeals

- 13 U.S. courts of appeals, U.S. circuit courts of appeals - 12 of the federal court of appeals hear appeals from the federal district courts located in their judicial circuits - The 13th circuit: The Federal Circuit; has a national appellate jurisdiction over certain cases - Decisions of a circuit court are binding/final in most cases; appeal to the U.S. Supreme Court

Arbitration

- A more formal method of ADR in which an arbitrator (a neutral third party or panel of experts) hears a dispute and imposes a resolution on the parties - Parties can agree to either a binding or nonbinding decision - Often not binding when mandated in the courts - Can agree to go forth with lawsuit if they do not agree with the decision

Mediation

- A neutral third party acts as a mediator and works with both sides in the dispute to facilitate a resolution - Less adversarial than litigation -Often preferred

Standing to sue

- A party must have a sufficient stake in the matter to justify seeking relief through the court system - Must have suffered harm or been threatened with a harm by the action about which she or he has complained - Must be a justiciable controversy - real and substantial

Arbitration Clauses and Statutes

- Arbitration clause: a written agreement included in a contract that any dispute arising under the contract will be resolved through arbitration rather than through a court system - Most states have statues under which arbitration clauses will be enforced, and some state statutes compel arbitration of certain types of disputes -Federal Arbitration Act: enforces clauses in contracts involving maritime activity and interstate commerce - Party can file a lawsuit to compel arbitration

U. S. Supreme Court

- Consists of 9 justices - In rare cases it has original or trial jurisdiction - Most of work in appeal - Final arbitrater

General jurisdiction

- County, district, superior, or circuit courts - They have jurisdiction over civil dispute and criminal prosecutions - They may hear appeals from courts of limited jurisdiction

Appellate or Reviewing Courts

- Every state has at least one - 3/4th of states have intermediate appellate courts - 3 or more judges review a case to see if there was an error - They focus on questions of law not fact - They defer to the facts found in the trial courts

Arbitration Process

- Formal arbitration can resemble a trial, although the procedural rulings are much less restrictive than the governing litigation -Opening arguments and specific remedies -Evidence presented, witnesses called - Decision, or Award is made - A court's review of the decision is more restricted than an appellate of a trial

U.S. District Courts

- Have original jurisdiction in matters involving a federal question and concurrent jurisdiction with state courts when diversity jurisdiction exists - Federal cases originate in these courts - At least one federal district court in every state

"Sliding-Scale" Standard

- Internet business contacts 1) substantial business conducted over the Internet (with contracts and sales) 2) Some interactivity through a Web site 3) Passive advertising (voluntarily access it) - Jurisdiction is proper for the first, improper for the second, and may or may not be for the third

Alternative Dispute Resolution (ADR)

- Settling disputes without litigation - Sitting down and working out differences - Multinational corporations agreeing to resolve a dispute through a formal hearing before a panel of experts - Parties decide if legal binding/ nonbinding, third parties, procedures - Private, quick decisions - >90% of civil lawsuits are settled before trial using ADR - Some states require it before trial, federal courts institute some ADR programs

Negotiation

- Simplest form of ADR - Process in which the parties attempt to settle their dispute informally, with or without attorneys to represent them - Parties can do this before or during a trial or after, but before an appeal - Parties and attorneys (sometimes)

Limited jurisdiction

- Special inferior trial courts or minor judiciary courts - Small claims courts: inferior trial courts that hear only civil cases involving claims of less than a certain amount ; informal, lawyers not required; can be appealed to state trial court of general jurisdiction - Domestic relations courts: handle primarily divorce actions and child-custody disputes - Local and municipal courts: traffic cases - Probate courts

Writ of Certiorari

- To bring a case before the Supreme Courts, one must request the court to issue this - 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 Court will not issue the writ unless at least 4 of the 9 justices approve it: The Rule of Four - Most petitions are denied; reasons not publicized - Thousands of cases filed, fewer than 100 are heard

Exclusive Jurisdiction

- When cases can be tried in only federal or only state courts - Federal courts: federal crimes, bankruptcy, most patent and copyright claims; in suits against the u.s.; in some areas of admiralty law (divorce/adoption) - State courts: cases involving all matters not subject to federal jurisdiction - for example, divorce and adoption cases

Long arm statute

A court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state; must have sufficient or minimum contacts with the state

In personam jurisdiction

A court can exercise this over any person or business that resides in a certain geographic area

Venue

A court trying a case should be in the geographic neighborhood where the incident leading to a lawsuit occurred or where the parties involved in the lawsuit reside - Civil case: where the defendant resides - Criminal: where the crime occurred

Online Dispute Resolution (ODR)

Dispute resolution serviced through the Internet

Mini Trial

Each parties attorney briefly argues the party's case before the other and a panel of reps from each side who have the authority to settle the dispute - If no agreement then the adviser renders an opinion as to how a court would likely decide the issue

Diversity of citizenship

Federal district courts can exercise original jurisdiction over these 1) the plaintiff and defendant must be residents of different states 2) the dollar amount in controversy must exceed $75,000 can be moved from state court to federal

Bankruptcy courts

Handle only bankruptcy proceedings, which are governed by federal bankruptcy law

Trial courts

Have either general or limited jurisdiction

International Jurisdiction Issues

Minimum contacts - doing business within the jurisdiction are enough to compel a defendant to appear and that a physical presence is not necessary

Probate courts

State courts that handle only matters relating to the transfer of a person's death, including issues relating to the custody and guardianship of children

American Arbitration Association (AAA)

The major provider of ADR services; handles more than 200,000 claims a year - panel of experts, paid - international and domestic disputes

Early Neutral Case Evaluation

The parties select a neutral third party to evaluate in their respective positions

Jurisdiction

The power to speak the law; jurisdiction over someone

Judicial Review

The process for making the determination whether or not the laws or actions of the other two branches of government are constitutional

Litigation

The process of resolving a dispute through the court system- is expensive and time consuming - Several years can pass before a case is tried

Judiciary Role

To interpret and apply the common law

Concurrent Jurisdiction

-When both federal and state courts have the power to hear the case such as in diversity of citizenship - Most cases involving federal questions and diversity-of-citizenship cases - state courts might not be chosen because of biases

State courts

1) Local trial courts of limited jurisdiction 2) State trial courts of general jurisdiction 3) State courts of appeals (intermediate appellate courts) 4) The state's highest court (often called the state supreme court) - Can have a trial court and then go to appellate court - State judges usually voted for, some appointed - Federal judges appointed by the president, confirmed by the Senate, hold office for life

The Federal Court System

1) U.S. district courts (trial courts of general jurisdiction) and various courts of limited jursidiction 2) U.S. courts of appeals (intermediate courts of appeals) 3) The U.S. Supreme Court - Federal court judges appointed by the president, lifetime

A Question of Law

Concerns the application or interpretation of the law; only a judge can rule on this

Appellate Jurisdiction

Courts that act as reviewing courts

Summary Jury Trials

Numerous federal courts hold these in which the parties present their arguments and evidence and the jury renders a verdict, which is not binding

Original Jurisdiction

Trial courts; in the federal system this is the district courts

A Question of Fact

What really happened in regard to the dispute being tried

In rem jurisdiction

When a court can exercise jurisdiction over property that is located within its boundaries