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Bus law today 9th ed ch03

BUSINESS LAW TODAY
Essentials 9th Ed.

Roger LeRoy Miller - Institute for University Studies, Arlington, Texas
Gaylord A. Jentz - University of Texas at Austin, Emeritus

Chapter

3

Courts and Alternative
Dispute Resolution

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

1


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?
What is discovery, and how does electronic
discovery differ?
What are three alternative methods of resolving
disputes?

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
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2


The Judiciary’s Role
in American Government
 Judicial Review was established by the
U.S. Supreme Court in Marbury v.
Madison (1803) where Chief Justice
Marshall wrote:
• “It is emphatically the province and
duty of the judiciary to say what the
law is….”

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3


Jurisdiction
 Jurisdiction:

“Juris” (law) “diction” (to
speak) is 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.

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4


Jurisdiction Over Persons
 Also called “in personam” jurisdiction.
 Power of a court to compel the presence
of the parties (including corporations) to
a dispute to appear before the court and
litigate.

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5


Jurisdiction Over Property
 Also called “in rem” jurisdiction.
 Power to decide issues relating to
property, whether the property is real,
personal, tangible, or intangible.
 A court generally has in rem jurisdiction
over any property situated within its
geographical borders.

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6


Long-Arm Statutes
 Courts use long-arm statutes for nonresident parties based on “minimum
contacts” with state.
See International Shoe Co. v. State of
Washington (1945).

 “Corporate Contacts”: usually

jurisdiction in the state it was
incorporated, principal place of
business, places goods in stream of
commerce or actively advertises.

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
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7


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.
 General (unlimited) jurisdiction.
 Limited jurisdiction.

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
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8


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.

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

9


Jurisdiction of Federal Courts
 “Federal Question” cases in which

the

rights or obligations of a party are
created or defined by some federal law.
 “Diversity” cases where:
The parties are not from the same state, and
The amount in controversy is greater than
$75,000.

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

10


Exclusive vs. Concurrent
Jurisdiction

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

11


Jurisdiction in Cyberspace
 “Sliding Scale” Standard.
Passive
Website

No

Yes

Substantial
Business
Interaction

 International Jurisdictional Issues.
Yahoo, Inc. v. La Ligue Contre La Racisme et
l’Antisemisme (2006).
© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
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12


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

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

13


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. There must be a “justiciable
controversy.”
CASE 3.1 Oregon v. Legal Services Corp.
(2009). Court dismissed case because Plaintiff
did not have standing, was not legally injured.

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

14


State Court System (Texas)
Texas Courts
Ct. Criminal
Appeals

Supreme
Court
Court of
Appeals

District Court

County Court
Municipal

Court

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a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Justice
Court
15


State Trial Courts
 “Courts of record”- court reporters.
 Opening and closing arguments.
 Juries are selected.
 Evidence, such as witness testimony,

physical objects, documents, and
pictures, is introduced.
 Witnesses are examined and crossexamined.
 Verdicts and Judgments are rendered.
© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
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16


State Appellate Courts
 Middle level of the court systems.
 Review proceedings conducted in the
trial court to determine whether the
trial was according to the procedural
and substantive rules of law.
 Generally, appellate courts will
consider questions of law, but not
questions of fact.

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

17


State Supreme Courts
 Also known as courts of last resort.
 The two most fundamental ways to have
your case heard in a supreme court are:
Appeals of Right.
By Writ of Certiorari.

 See the U.S. Supreme Court and the
Texas Supreme Court.

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

18


Federal Court System
Federal Courts
U.S. Supreme
Court

Writ of Certiorari
to bring case

Circuit
Courts of
Appeals

13 U.S. Courts of
Appeal 

U.S. District
Courts

Equivalent to
State Trial Court

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

19


Exhibit 3.3 U.S. Courts of
Appeal

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a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

20


Following a State Court Case
 Pleadings.
Plaintiff’s Complaint.
Service and Summons.
Defendant’s Answer /Motion to Dismiss.

 Pre-Trial Motions.
Motion for Judgment on the Pleadings.
Motion for Summary Judgment.

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

21


Following a State Court Case
 Discovery.
Depositions and Interrogatories.
Requests for Documents.
Requests for Admission.
Electronic Discovery.

 Pre-Trial Conference.
 Jury Selection (Voir Dire).

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

22


Following a State Court Case
 At the Trial.
 Opening arguments.
 Plaintiff’s Case in Chief.
• Defense cross-examines Plaintiff’s witnesses.

 Defense Case in Chief.
• Plaintiff cross-examines Defense witnesses.

 Closing Arguments.
 Motion for a Directed Verdict.

 Post-Trial Motions.
 Motion for J.N.O.V.
 Motion for New Trial.
© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

23


Following a State Court Case
 The Appeal.
 Filing the Appeal.
• Briefs pointing out reversible error that require reversal of the
trial court’s verdict.

 Appellate Review.
• Courts do not consider new evidence. Only consider briefs
and evidence presented at trial.

 CASE 3.2

Evans v. Eaton Corp. (2008).
Appellate court must give deference to findings
of fact made by trial court even if a “better
decision-maker” should have been used.

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

24


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).

© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in
a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

25


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