Judicial review

We repeat these answers here as a convenience to you. IA Judicial re curb examination The courts cannister decide whether the laws or actions of the legislative and executive branches of government argon integral. The process for making this determination is judicial check out.The doctrine of judicial review was open up in 1803 when the United States Supreme Court resolute Mammary . Madison. AAA Jurisdiction To hear a fiber, a court must have legal power over the person against whom the suit is brought or over the property involved in the suit. The court must also have legal power over the root word bet. 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 outpouring and appellate courts A running play 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. AAA Discovery Discovery is the process of obtaining study and evidence about a sheath from the other party or third parties. Discovery entails gaining glide path 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, much(prenominal) as paper documents. A Alternative dispute dissolver The traditional method of resolving a legal dispute is through litigation. Alternative methods include negotiation, mediation, and arbitrement. 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 assistant of a neutral third party, a mediator, who does not, however, make a last in the dispute. In arbitrement, a neutral third party or a panel of experts hears a dispute and re nders a conclusion.Answers to Critical Thinking interrogations in the sports Beyond Our Borders-? particular Thinking (Page 76) One of the arguments against allowing Shari courts in the United States is hat 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 outcome 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 national authority, governmental bodies, or law. Adapting the Law to the Online Environment-?critical Thinking (Page 83) How powerfulness a large company protect itself from allegations that it designedly 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 delinquent to the implementation of a policy to periodically purge electronic systems. Such charges might be aidle wordsed by not destroying he data but instead storing it. Questions in the Cases Case 3. 1 -?Critical Thinking (Page 69) Ethical Consideration Was it medium for the conjugation Carolina courts to require a New Jersey company to litigate in North Carolina? Explain. Yes, it was fair to require emancipation 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 tran sactions with Southern for a year and had billed Southern for services in gists totaling ore than $21,000. Therefore, Independence should have expected to be hailed into court in North Carolina in the event of a dispute. Case 3. 2-?What If the Facts Were Different? Page 73) Suppose Gucci had not presented evidence that the defendant made superstar actual sale through his Web site to a resident of the courts 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 realize that the defendant s Web site was interactive and that the defendant used the Web tit to sell goods to residents in the courts 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 foreig n defendants un little they can show the defendants had minimum contacts with the forum, such as by selling goods within the forum. Case 3. 3-?Critical Thinking (Page 90) gal Consideration How would business be affected if each state could gift a decree, like the ace 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 cost of doing business, making the business opportunity less attractive. Thus, many parties may decline to enter contracts without enforceable arbitration provisions.Answers to Questions in the Reviewing Feature t the End of the Chapter IA. federal official 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, gather up resides in Illinois, and Foreman and his manager live in Texas. Because the dispute involved the publicity 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. AAA. Jurisdiction in Illinois No, because the defendants lacked minimum contacts with the state of Illinois.Because the defendants were regain 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 AAA. 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 persona l jurisdiction. Answer to Debate This Question in the Reviewing Feature at the End of the Chapter 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 ascertain 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 th e End of the Chapter IA Sue contracts with turkey cock to deliver a quantity of computers to Cues Computer Store. They disagree over the amount, the delivery date, the price, and the quality. Sue files a suit against turkey cock in a state court. Their state requires that their dispute be submitted to mediation or nonbinding arbitration. ordinal dispute is not resolved, or if either party disagrees with the decision of the mediator or arbitrator, will a court hear the case?Explain. Yes. Submission of the dispute to mediation or nonbinding arbitration is mandatory, but compliance with the decision Of the mediator or arbitrator is voluntary. A 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 throw out an issue of fact. Answers to Questions and Case Problems Business Scenarios and Case Problems 3-1 A Standing to sue (BELT page 73) This problem concerns standing(a) 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 looks to sue. In this problem, the issue is whether the Turns had been injured, or were likely to be injured, by the countys landfill operations.Clearly, one could argue that the injuries that the Turns complained of this instant resulted from the countys 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, sca venger problems, groundwater contamination) that those laws were enacted to address. Thus, the Turns would have standing to bring their suit. 3-?AAA Question with Sample Answer-?jurisdiction 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. 3-AAA 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 contract 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. -?AAA Case Problem with Sample Answer-?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 indus try 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. 3-AAA Venue 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 electron lens of practicality-?which is, after all, what the venue statute is all about-?Nestsgs 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 th e 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 aesculapian intercession was provided (and continues to be provided) in that state.South Carolina is the appropriate venue for this litigation against Nests to proceed. 3-AAA Arbitration (BELTS page 85) 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 arbitrat ion. On appeal, the U. S. Court of Appeals for the Eighth Circuit affirmed this ruling. 3-AAA Spotlight on interior(a) Football-?Arbitration An arbitrators award generally is the final word on the matter. A courts review of an arbitrators decision is extremely limited in scope, unlike an appellate courts review oaf lower courts decision.A court will set aside an award only if the arbitrators 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 reversal 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 contra ry to public policy. 3-?AAA 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 nevertheless 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. alone that was not enough.When a judgment of a court from another state is contestd 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. 3-?AAA A Question of Ethics-?Agreement to arbitrate 1. This is very common, as many hospitals and other health-care provides have arbitration agreements in their contracts for serv ices. 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 sea captain 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 a few(prenominal) 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 3-AAA Business Law Critical Thinking Group Assignments 1. The statute violates litigants rights of introduction 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 ridiculous 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. 2. 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 arbitrators decision.The burdens on a persons 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 everyones time. The assessment of the costs of the arbitration on such parties may discourage appeals in several(prenominal) 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 political program and affected only a few judicial districts in the state because only parties who fell under the jurisdi ction 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 arbitrators 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.