Food for Thought of the Day

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Food for Thought of the Day

• The paradox of education is precisely this -
  that as one begins to become conscious one begins
  to examine the society in which he is being
  educated.
• -James Baldwin

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Welcome to Introduction to Business BUS 002

• Agenda
• February 7, 2008 (Th), February 13, 2008 (Wed)
• TOPIC
• Judicial Branch Jurisdiction, Traditional and
  Online Dispute Resolution
• Check-Ins Questions, Comments, Reflections, AhHa
  Moments
• Article Supreme Court denies hearing for fired
  honk for peace teacher source S.F. Chronicle
• Understanding the Judicial Branch of Government
• Jurisdiction
• Court Systems (Federal and State)
• Understanding Traditional and Online Dispute
  Resolution
• Emancipate

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Learning Objectives

• What is judicial review? How and when was the
  power of judicial review established?
• Before a court can hear a case, it must have
  jurisdiction. Over what must it have
  jurisdiction? How are the courts applying
  traditional jurisdictional concepts to cases
  involving Internet transactions?
• What is the difference between a trial court and
  an appellate court?
• How are online forums being used to resolve
  disputes?

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Vocabulary/Terms/Phrases

• Jurisdiction The power to speak the law. The
  authority of the court to hear and decide a
  specific action.
• Judicial Review The process by which a court
  decides on the constitutionality of legislative
  enactments and actions of the executive branch.
• Long Arm Statute A state statute that permits a
  state to obtain personal jurisdiction over
  nonresident defendant. A defendant must have
  minimum contacts (enough contacts) with that
  state for the statute to apply or for the state
  to have jurisdiction over the defendant.
• Minimum Contacts Doing business within the
  jurisdiction. Enough contact.
• Docket List of cases on the courts calendar
• Appeal To review the decision of the original
  court.

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Judicial Court SystemsJudicial Branch of
Government

• Fifty-Two (52 Court Systems)
• One for each of the 50 States
• One for the District of Columbia (D.C.)
• One Federal Court System

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Jurisdiction

• Jurisdiction - The authority of a court to hear
  and decide a specific action. 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.
  Jurisdiction has many dimensions, including
• Jurisdiction over Persons The authority of a
  court to hear and decide a dispute involving the
  particular parties residing or doing business
  within the geographic area. (ex. Business office
  in one state, but headquartered in another)
• Jurisdiction over Property The court can
  exercise jurisdiction over property that is
  located within its boundaries. (ex. Boat owner
  lives in one state, but docked boat in another
  state)
• Subject Matter Jurisdiction The authority of a
  court to hear and decide the particular dispute
  (ex. Probate Court, Bankruptcy Court).
• Original Jurisdiction The authority of a court
  to hear and decide a dispute in the first
  instance. (ex. Trial courts)
• Appellate Jurisdiction The authority of a court
  to review a prior decision in the same case made
  by another court. (ex. Appeals courts)

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Jurisdiction

• Jurisdiction of Federal Courts Federal courts
  have limited jurisdiction. The authority of a
  court to hear cases involving the U.S.
  Constitution, treaty, or federal law.
• Concurrent Jurisdiction When more than one
  court have the power to hear a case (ex. Federal
  and State court)
• Exclusive Jurisdiction When a case can only be
  heard in a particular court or type of court.
• Jurisdiction in Cyberspace When business
  activity occurs via the Internet in a certain
  geographic region. (ex. Most of the business
  activity is occurring online in a particular
  state) See Example 3.4 p. 80
• International Jurisdiction When business
  activity occurs via the Internet internationally
  (between U.S. and other Countries). Must comply
  with the laws in any jurisdiction in which it
  targets customer for its products or services.
  Minimum contact applies.

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Jurisdiction Over Persons

• Power of a court to compel the presence of the
  parties (including corporations) to a dispute to
  appear before the court and litigate.
• Courts use long-arm statutes for non-resident
  parties based on minimum contacts with state.
• Cole v. Mileti (1998). p. 77

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Jurisdiction Over Property

• Power to decide issues relating to property,
  whether the property is real, personal, tangible,
  or intangible.
• A court generally has jurisdiction over any
  property situated within its geographical borders.

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Jurisdiction over Subject Matter

• This is a limitation on the types of cases a
  court can hear, usually determined by federal or
  state statutes.
• For example, bankruptcy, family or criminal
  cases.
• Limited jurisdiction.

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Original and Appellate Jurisdiction

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

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Federal Court Jurisdiction

• Federal Question cases in which the rights or
  obligations of a party are created or defined by
  some federal law.
• Arises if a case involves an alleged violation of
  the U.S. Constitution, federal statute or
  regulation, or a treaty between the U.S. and one
  or more foreign countries.
• Diversity Jurisdiction (Article III, Section 2
  Constitution) cases where
• The parties are not from the same state, and
• The amount in controversy is greater than
  75,000.
• the lawsuit is between
• citizens of different states,
• a corporation is a citizen of both (1) its state
  of incorporation, and (2) the state of its
  principal place of business, if the two are not
  the same.
• a foreign country and citizens of one or more
  states

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Jurisdiction in Cyberspace

• Sliding Scale Standard. When does a court have
  jurisdiction?
• Bird v. Parsons (2002). P. 80

Substantial Business Interaction
No Yes
PassiveWebsite
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Venue

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

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Standing to Sue

• In order to bring a lawsuit, a party must have
  standing to sue.
• Standing is sufficient stake in the
  controversy party must have suffered a legal
  injury.
• Must be justifiable controversy (a controversy
  that is real and substantial, as opposed to
  hypothetical or academic)

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Federal Courts State Court Systems
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State Court Systems

• Trial (District) Courts
• Trial courts are where all litigation (other than
  that conducted through administrative agencies)
  begins.
• Small Claims Court Civil matter, No attorneys
  needed, 5000 or less
• Appellate Courts
• Every state has at least one appellate court, to
  which a litigant who was unsuccessful at the
  trial court may appeal for relief. Some states
  have intermediate appellate courts (akin to the
  U.S. Courts of Appeals) which are subject to
  review by the states supreme court or court of
  last resort.
• Other states have only a supreme court.
• Highest State Court
• Usually called the State Supreme Court
• Has discretionary review they decide whether or
  not they will hear a case

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State and Federal Courts
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Boundaries of the U.S. Courts of Appeals U.S.
District Courts
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What do you think?

• In groups of 3 or 4, respond to the following
• You receive a ticket driving a business vehicle,
  you want to dispute it, which court will hear
  your case? Explain
• You own a business in California, but most of
  your business transactions occur in Texas. A
  customer in Texas brings a case against you,
  which court and which state has jurisdiction over
  the case? Explain

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Trial Courts

• Trial courts have either general jurisdiction
  meaning that they are empowered to consider any
  matter before them or limited jurisdiction
  meaning that they are only empowered to hear
  certain types of cases
• Trial courts of general jurisdiction,
• each state (as well as the District of Columbia
  and certain other U.S. territories and
  possessions) has at least one district,
• and some states have as many as four, with each
  district divided administratively among one to
  several judges.

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Appellate Courts

• Called Middle level of the court systems.
• Cover twelve geographic regions, with a
  thirteenth court, the Federal Circuit, empowered
  to hear appeals from any district court involving
  patent law, cases in which the United States is a
  defendant, and other specified types of cases.
• Review proceedings conducted in the trial court
  to determine whether the trial was according to
  the procedural (process) and substantive (define)
  rules of law.
• Generally, appellate courts will consider
  questions of law (Has a law been violated), but
  not questions of fact.

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The Federal Court System

• U.S. Supreme Court The highest court in the
  land, the U.S. Supreme Court exercises
  discretionary review over all federal appellate
  courts, as well as, in some circumstances, state
  supreme and appellate courts.
• Most cases reach the U.S. Supreme Court on writ
  of certiorari, which requires that at least four
  justices agree the case merits the Courts
  review.

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The Federal Court System

• U.S. District Courts
• Trial courts of general jurisdiction, each state
  (as well as the District of Columbia and certain
  other U.S. territories and possessions) has at
  least one district, and some states have as
  many as four, with each district divided
  administratively among one to several judges.
• U.S. Courts of Appeals Appellate courts review
  cases from litigants in the U.S. District Courts
  with an automatic right to appeal.
• In the case of the D.C. Circuit, they hear from
  federal administrative agency decisions.
• These courts also hear appeals from U.S.
  Bankruptcy Courts and other specialized courts
  and, in the case of the D.C. Circuit, from
  federal administrative agency decisions.
• These courts cover twelve geographic regions,
  with a thirteenth court, the Federal Circuit,
  empowered to hear appeals from any district court
  involving patent law, cases in which the United
  States is a defendant, and other specified types
  of cases.

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Courts Adapt to the Online World

• Electronic Filing.
• Courts Online (websites, court dockets).
• Cyber Courts and Online Dispute Resolution
  (Michigan legislation).
• Online Dispute Resolution (ODR).
• Negotiation.
• Mediation.
• Arbitration (employment contracts).

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Alternative Dispute Resolution

• Trials are a means of dispute resolution that are
  very expensive and sometimes take many months to
  resolve.
• There are alternative dispute resolution (ADR)
  methods to resolve disputes that are inexpensive,
  relatively quick and leave more control with the
  parties involved.

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ADRAlternative Dispute Resolution

• ADR describes any procedure or device for
  resolving disputes other than the traditional
  judicial process.
• Unless court-ordered, there is no record which is
  an important factor in commercial litigation due
  to trade secrets.
• Most common negotiation, mediation, arbitration.

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Arbitration

• Many employment contracts have binding
  arbitration clauses.
• Settling of a dispute by a neutral 3rd party
  (arbitrator) who renders a legally-binding
  decision usually an expert or well-respected
  government official.
• Disadvantages of Arbitration
• 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.
• See p. 102 Circuit City Stores, Inc. v. Adams

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Arbitration Process

• 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.

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Other Forms of ADR

• Negotiation Informal settlement talks between
  the parties, with or without counsel.
• Mediation Non-binding procedure utilizing the
  services of a neutral third party to assist
  negotiations and recommend a resolution of the
  parties dispute. Mediation is non-adversarial
  and tends to reduce antagonism.
• Neutral Case Evaluation A third party agreed to
  by the parties evaluates each sides position and
  informs the parties of their strengths and
  weaknesses.
• Mini-Trial A short-form trial presented to a
  judge whose decision is not legally binding,
  but may assist the parties in evaluating their
  claims or defenses.
• Summary Jury Trial A short-form trial presented
  to a jury whose decision is not legally
  binding, but may assist the parties in evaluating
  their claims or defenses.
• Online Dispute Resolution An increasing number
  of companies and organizations offer
  dispute-resolution services online.

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Providers of ADR Services

• Non-profit organizations
• American Arbitration Association.
• Better Business Bureau.
• For Profit
• JAMS-ADR.com(Flash enabled).

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What do you think?

• View the Video Jurisdiction in Cyberspace
• Does Wizard Internet do Business in Montana?
• In groups of 3-4, answer the following questions?
• What contact has Wizard Internet had with
  customers in Montana?
• Are those contacts enough to give Montana
  jurisdiction in this case?
• How are minimum-contact standards for
  corporations applied when the corporation
  advertises its products on the Internet?

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Reflection

• How might todays content impact my practice in
  business?
• What implications might todays content have on
  the local, state, national, and global
  communities?
• What have I learned about judicial system and
  business that will influence my practice?