Judicial Review
The courts can decide whether the laws or actions of the legislative and executive branches of government are constitutional. The process for making this determination is judicial review.
The doctrine of judicial review was established in 1803 when the United States Supreme Court decided Mammary . Madison.
Jurisdiction
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To hear a case, a court must have jurisdiction over the person against whom the suit is brought or over the property involved in the suit. The court must also have jurisdiction over the subject matter. Generally, courts apply a "sliding-scale" standard to determine when it is proper to exercise jurisdiction over a defendant whose only connection with the jurisdiction is the Internet. A Trial and appellate courts A trial court is a court in which a lawsuit begins, a trial takes place, and evidence is presented. An appellate court reviews the rulings of trial court, on appeal from a judgment or order of the lower court.
Discovery
Discovery is the process of obtaining information and evidence about a case from the other party or third parties. Discovery entails gaining access to witnesses, documents, records, and other types of evidence. Electronic discovery differs in its subject that is, e-media rather than traditional sources of information, such as paper documents. A Alternative dispute resolution The traditional method of resolving a legal dispute is through litigation. Alternative methods include negotiation, mediation, and arbitration. In negotiation, the parties attempt to settle their dispute informally without the involvement of a third party acting as mediator. In mediation, the parties attempt to come to an agreement with the assistance of a neutral third party, a mediator, who does not, however, make a decision in the dispute. In arbitration, a neutral third party or a panel of experts hears a dispute and renders a decision.
One of the arguments against allowing Shari courts in the United States is that We would no longer have a common legal framework within our society. Do you agree or disagree? Why? Arguments in favor of allowing Shari courts-?or at least permitting the application of Shari principles in disputes in U. S. Courts or in alternative methods of dispute resolution-?include the legal and cultural principle of giving effect to agreements.
If the parties to a dispute have agreed to a certain set of standards to govern their situation, those standards could be applied. This would not undercut our common legal framework, but reinforce it. Arguments against allowing Shari courts or reminisces in the United States would most likely center on the conflicts between Shari tribunals and standards and state or federal authority, governmental bodies, or law. Adapting the Law to the Online Environment-?critical Thinking How might a large company protect itself from allegations that it intentionally failed to preserve electronic data?
A corporation might defend against charges of intentional destruction or loss of data by showing, for example, that the absence is due to the implementation of a policy to periodically purge electronic systems. Such charges might be avoided by not destroying he data but instead storing it.
Ethical Consideration
Was it fair for the North Carolina courts to require a New Jersey company to litigate in North Carolina? Explain. Yes, it was fair to require Independence to litigate in North Carolina. The courts ruling did not offend "traditional notions of fair play and substantial justice" because Independence purposely availed itself of the privilege of doing business in North Carolina. Independence had engaged in numerous transactions with Southern for a year and had billed Southern for services in amounts totaling ore than $21,000. Therefore, Independence should have expected to be hailed into court in North Carolina in the event of a dispute. What If the Facts Were Different? Suppose Gucci had not presented evidence that the defendant made one actual sale through his Web site to a resident of the court's district (the private investigator). Would the court still have found that it had personal jurisdiction over Hugging? Why or why not? The single sale to a resident of the district, Gucci private investigator, helped the plaintiff establish that the defendant 's Web site was interactive and that the defendant used the Web tit to sell goods to residents in the court's district.
It is possible that without proof of such a sale, the court would not have found that it had personal jurisdiction over the foreign defendant. The reason is that courts cannot exercise jurisdiction over foreign defendants unless they can show the defendants had minimum contacts with the forum, such as by selling goods within the forum. How would business be affected if each state could pass a statute, like the one in Texas, allowing parties to void out-of-state arbitration?
If all states could pass statutes like the one in Texas, many parties would probably be less inclined to transact business. An arbitration provision allows a party to limit the burden and expense of settling any disputes. If another party could freely void such an agreement, there would be a greater risk of arbitration in an inconvenient forum, costly formal litigation, or both. That risk increases the perceived costs of doing business, making the business opportunity less attractive. Thus, many parties may decline to enter contracts without enforceable arbitration provisions.
Federal Jurisdiction
The federal district court can exercise jurisdiction in this case because the case involves diversity of citizenship. Diversity jurisdiction requires that the plaintiff and defendant be from different states and that the dollar amount of the controversy exceed $75,000. Here, Garner resides in Illinois, and Foreman and his manager live in Texas. Because the dispute involved the promotion of a series of boxing matches with George Foreman, the amount in controversy likely exceeded the required threshold amount. A. Original or appellate jurisdiction Original jurisdiction, because the case was initiated in that court and that is where the trial will take place. Courts having original jurisdiction are courts of the first instance, or trial courts-?that is courts in which lawsuits begin, trials take place, and evidence is presented. In the federal court system, the district courts are the trial courts, so the federal district court has original jurisdiction. Jurisdiction in Illinois. No, because the defendants lacked minimum contacts with the state of Illinois.
Because the defendants were located out of the state, the court would eave to determine whether they had sufficient contacts with the State for the Illinois to exercise jurisdiction based on a long arm statute. Here, the defendants never came to Illinois, and the contract that they are alleged to have breached was not formed in Illinois. Thus, it is unlikely that an Illinois state court would find that sufficient minimum contacts existed to exercise .Jurisdiction in Nevada. Yes, because the defendants met with Garner and formed a contract in the state of Nevada.
A state can exercise jurisdiction over out-of-state defendants under a long arm statute if the defendants had sufficient contacts with the State. Here, the parties met and negotiated their contract in Nevada, and a court would likely hold that these activities were sufficient to justify a Nevada courts exercising personal jurisdiction. In this age of the Internet, when people communicate via e-mail, tweets, Backbone, and Keep, is the concept of jurisdiction losing its meaning?
Many believe that yes, the idea of determining jurisdiction based on individuals' and companies' physical locations no longer has much meaning. Increasingly, entrants are formed via online communications. Does it matter where one Of the parties has a physical presence? Does it matter where the e-mail server or Web page server is located? Probably not. In contrast, in one sense, jurisdiction still has to be decided when conflicts arise. Slowly, but ever so surely, courts are developing rules to determine where jurisdiction lies when one or both parties used online systems to sell or buy goods or services.
In the final analysis, a specific court in a specific physical location has to try each case. Answers to Issue Spotters in the Example Feature at the End of the Chapter IA Sue contracts with Tom to deliver a quantity of computers to Cue's Computer Store. They disagree over the amount, the delivery date, the price, and the quality. Sue files a suit against Tom in a state court. Their state requires that their dispute be submitted to mediation or nonbinding arbitration. Fifth dispute is not resolved, or if either party disagrees with the decision of the mediator or arbitrator, will a court hear the case?
Submission of the dispute to mediation or nonbinding arbitration is mandatory, but compliance with the decision Of the mediator or arbitrator is voluntary. At the trial, after Sue calls her witnesses, offers her evidence, and otherwise presents her side of the case, Tom has at least two choices between courses of actions. Tom can call his first witness. What else might he do? Tom could file a motion for a directed verdict. This motion asks the judge to direct a verdict for Tom on the ground that Sue presented no evidence that would justify granting Jan relief.
The judge grants the motion if there is insufficient evidence to raise an issue of fact. This problem concerns standing to sue. As you read in the chapter, to have standing to sue, a party must have a legally protected, tangible interest at stake. The party must show that he or she has been injured, or is likely to be injured, by the actions of the party that he or she seeks to sue. In this problem, the issue is whether the Turns had been injured, or were likely to be injured, by the county's landfill operations.
Clearly, one could argue that the injuries that the Turns complained of directly resulted from the county's violations of environmental laws while operating the landfill. The Turns ivied directly across from the landfill, and they were experiencing the specific types of harms (fires, scavenger problems, groundwater contamination) that those laws were enacted to address. Thus, the Turns would have standing to bring their suit. Marry can bring suit in all three courts. The trucking firm did business in Florida, and the accident occurred there.
Thus, the state of Florida would have jurisdiction over the defendant. Because the firm was headquartered in Georgia and had its principal place of business in that state, Marry could also sue in a Georgia court. Finally, because the amount in controversy exceeds $75,000, the suit could be brought in federal court on the basis of diversity of citizenship.Discovery (BITE pages 81-82) Under the work-product rule, attorneys are allowed to protect information that they have gathered as a result of their own skill and diligence.
For example, an attorney for a party involved in an auto accident can go out to the scene of the accident and observe the fact that there is a stop sign missing without being under any obligation to divulge such information to his opponent in the lawsuit. Similarly, an attorney who discovers a recently ecocide case decision supporting his or her theory is under no obligation to share this discovery with the opposing attorney. If attorneys had to share everything, they would be less inclined to expend efforts on behalf of their clients because, in essence, they would be working for both sides at once. Arbitration Based on a recent holding by the Washington state supreme court, the federal appeals court held that the arbitration provision was unconscionable (see page 296 in Chapter 1 1) and therefore invalid. Because it was invalid, the restriction on class-action suits was also invalid. The state court reasoned that by offering a contract that restricted class actions and required arbitration, the company had improperly stripped consumers of rights they would normally have to attack certain industry practices.
Class-action suits are often brought in cases of deceptive or unfair industry practices when the losses suffered by an individual consumer are too small to warrant a consumer suing. In this case, the alleged added cell phone fees are so small that no one consumer would be likely to litigate or arbitrate the matter due to the expenses involved. Because the arbitration agreement eliminates the usability of class actions, it violates public policy and is void and unenforceable. The purpose behind most venue statutes is to ensure that a defendant is not "hailed into a remote district, having no real relationship to the dispute. The events in dispute have no connection to Minnesota. The Court stated: "Looked at through the lens of practicality-?which is, after all, what [the venue statute] is all about-?Nestsg's motion can really be distilled to a simple question: does it make sense to compel litigation in Minnesota when this state bears no relationship to the parties or the underlying events? ' The court answered no to this simple question. The plaintiff resides in South Carolina, her daughters injuries occurred there, and all of her medical treatment was provided (and continues to be provided) in that state.
South Carolina is the appropriate venue for this litigation against Nests to proceed. Arbitration can be compelled under a contracts arbitration clause as long as a dispute involves matters covered by the contract provision. In the set of facts in this problem, the terms of the parties' contract are central to the resolution of their dispute. Under the contract, all claims that PRM has against Premiering go to arbitration because the arbitration clause covers "all disputes. " That includes allegations of fraud and theft.
Such matters can be resolved by arbitration. In the actual case on which this problem is based, the court ruled that PRM had to take all complaints about Premiering to arbitration. On appeal, the U. S. Court of Appeals for the Eighth Circuit affirmed this ruling. Spotlight on National Football-?Arbitration An arbitrator's award generally is the final word on the matter. A court's review of an arbitrator's decision is extremely limited in scope, unlike an appellate court's review oaf lower court's decision.
A court will set aside an award only if the arbitrator's conduct or "bad faith" substantially prejudiced the rights of one of the parties, if the award violates an established public policy, or if the arbitrator exceeded her or his powers. In this problem, and in the actual case on which this problem is based, the NAP argued that the award was contrary to public policy because it required Matthews to forfeit the right to seek workers' compensation under California law. The court rejected this argument, because under the arbitrators award Matthews could still seek workers' compensation under Tennessee law.
Thus, the arbitration award was not clearly contrary to public policy. Minimum contacts (BITE pages 66-68) No. This statement alone was insufficient to establish that Illinois did not have jurisdiction over the defendant. The court ruled that Med-Express failed to introduce factual evidence proving that the Illinois trial court lacked personal jurisdiction over Med-Express. Med-Express had merely recited that it was a North Carolina corporation and did not have minimum contacts with Illinois. Med-Express sent a letter to this effect to the clerk of Cook County, Illinois, and to the trial court judge. But that was not enough.
When a judgment of a court from another state is challenged on the grounds of personal jurisdiction, there is a presumption that the court issuing the judgment had jurisdiction until the contrary is shown. It was not.This is very common, as many hospitals and other health-care provides have arbitration agreements in their contracts for services. There was a valid contract here. It is presumed in valid contracts that arbitration clauses will be upheld unless there is a violation of public policy. The provision of medical are is much like the provision of other services in this regard.
There was not evidence of fraud or pressure in the inclusion of the arbitration agreement. Of course there is concern about mistreatment of patients, but there is no reason to believe that arbitration will not provide a professional review of the evidence of what transpired in this situation. Arbitration is a less of a lottery that litigation can be, as there are very few gigantic arbitration awards, but there is no evidence of systematic discrimination against plaintiffs in arbitration compared to litigation, so there may not be a major ethical issue.McDaniel had the legal capacity to sign on behalf of her mother.
Someone had to do that because she lacked mental capacity. So long as in such situations the contracts do not contain terms that place the patient at a greater disadvantage than would be the case if the patient had mental capacity, there is not particular reason to treat the matter any differently. Critical Thinking and Writing Assignments Business Law Critical Thinking Group Assignments 1. The statute violates litigants' rights of access to the courts and to a jury trial because the imposition of arbitration costs on those who improve their sections by less than 10 percent on an appeal is an unreasonable burden.
And the statute forces parties to arbitrate before they litigate-?an added step in the process of dispute resolution. The limits on the rights of the parties to appeal the results Of their arbitration to a court further impede their rights Of access. The arbitration procedures mandated by the statute are not reasonably related to the legitimate governmental interest of attaining less costly resolutions of disputes. The statute does not violate litigants' constitutional right of access to the courts because it provides the parties tit an opportunity for a court trial in the event either party is dissatisfied with an arbitrator's decision.
The burdens on a person's access to the courts are reasonable. The state judicial system can avoid the expense of a trial in many cases. And parties who cannot improve their positions by more than 10 percent on appeal are arguably wasting everyone's time. The assessment of the costs of the arbitration on such parties may discourage appeals in some cases, which allows the courts to further avoid the expense of a trial. The arbitration procedures mandated by the statute are reasonably related to the estimate governmental interest of attaining speedier and less costly resolution of disputes. . The determination on rights of access could be different if the statute was part of a pilot program and affected only a few judicial districts in the state because only parties who fell under the jurisdiction of those districts would be subject to the limits. Opponents might argue that the program violates the due process of the Fifth Amendment because it is not applied fairly throughout the State. Proponents might counter that parties who object to an arbitrator's decision have an opportunity to appeal it to a court.
Opponents might argue that the program exceeds what the state legislature can impose because it does not reasonably relate to a legitimate governmental objective-?it arbitrarily requires only litigants who reside in a few jurisdictions to submit to arbitration. Proponents might counter that this is aimed at the reduction of court costs-?that the statute rationally relates to a legitimate governmental end. An equal protection challenge would most likely be subject to a similar rational basis test. Under these and other arguments, the reduction of court costs would be a difficult objective to successfully argue against.
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Judicial Review. (2018, Mar 14). Retrieved from https://phdessay.com/judicial-review/
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