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Food for Thought of the Day

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Title: BLT Essentials 7th Ed. 2005 Author: Joe Zavaletta Last modified by: RSettles Created Date: 12/7/2004 1:12:41 AM Document presentation format – PowerPoint PPT presentation

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Title: Food for Thought of the Day


1
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

2
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

3
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?

4
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.

5
Judicial Court Systems Judicial 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

6
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)

7
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.

8
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

9
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.

10
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.

11
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.

12
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

13
Jurisdiction in Cyberspace
  • Sliding Scale Standard. When does a court have
    jurisdiction?
  • Bird v. Parsons (2002). P. 80

Substantial Business Interaction
No Yes
Passive Website
14
Venue
  • Venue is concerned with the most appropriate
    location for the trial.
  • Generally, proper venue is whether the injury
    occurred.

15
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)

16
Federal Courts State Court Systems
17
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

18
State and Federal Courts
19
Boundaries of the U.S. Courts of Appeals U.S.
District Courts
20
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

21
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.

22
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.

23
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.

24
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.

25
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).

26
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.

27
ADR Alternative 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.

28
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

29
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.

30
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.

31
Providers of ADR Services
  • Non-profit organizations
  • American Arbitration Association.
  • Better Business Bureau.
  • For Profit
  • JAMS-ADR.com(Flash enabled).

32
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?

33
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?
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