courts and alternative dispute resolution chapter 2

Courts and Alternative Dispute Resolution

Chapter 2

Judicial Review

• 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….”

Jurisdiction• The authority of a court to hear and decide a

specific action • juris = “law” + diction = “to speak”.• The “judicial power” or authority to act.

Personal Jurisdiction• Personal (or in personam) jurisdiction

primarily is based on geography.• Courts have personal jurisdiction over

persons residing and/or doing business within a particular county, district, or state.

Personal JurisdictionLong-Arm Statutes • nonresidents of a state • subject to courts in other state• based on “minimum contacts” See Case 3.1 (page 68)

Personal Jurisdiction• “Where” is business on the internet located?• “Sliding Scale Test”

• Substantial business conducted within state• Some interactivity • Passive advertising

Subject Matter Jurisdiction• The authority of a court to hear and decide

the particular dispute before it.• A court’s subject matter jurisdiction is

usually defined in the statute or constitution creating the court.

Subject Matter Jurisdiction• Limits to a trial court’s subject matter

jurisdiction:–The amount in controversy–The subject of the lawsuit–Whether the crime alleged is a

misdemeanor or felony

Subject Matter Jurisdiction• Concurrent Jurisdiction - When one or more

federal court and one or more state court have subject matter jurisdiction over the same dispute.

Jurisdiction of Federal Courts• Federal district courts have two types of

subject matter jurisdiction:–Federal question jurisdiction –Diversity jurisdiction

Jurisdiction of Federal Courts• Federal Question Jurisdiction

–Arises if a case involves an alleged violation of the U.S. Constitution, federal statute or regulation, or a treaty.

Jurisdiction of Federal Courts• Diversity Jurisdiction:

–The amount in controversy exceeds $75,000; and

–The lawsuit is between citizens of different states or citizens of a state and citizens of a foreign country.

Exclusive and Concurrent Jurisdiction

Structure of Federal Courts and Most State Court Systems

Supreme Court

Courts of Appeals

District Courts

Original Jurisdiction• The authority of a court to hear and decide a

dispute in the first instance.• Generally speaking, trial courts are courts

of original jurisdiction, although the Supreme Court of the United States has original jurisdiction over a few types of disputes.

Appellate Jurisdiction• The authority of a court to review a prior

decision in the same case made by another court.

• The decision is binding on that court and any court below it.

Appellate JurisdictionAppellate courts do not:

–have a witness stand–have a jury box–hear any new testimony– admit any new evidence

Appellate Jurisdiction• The party that loses before an intermediate

appellate court may appeal that court’s ruling to the jurisdiction’s supreme court or its equivalent.

• However, supreme court review is optional by the supreme court.

U. S. Courts of Appeals and U. S. District Courts

Supreme Court Review

Supreme Court Review• Discretionary Review (Writ of Certiorari)• Rule of Four• Petitions Granted

Usually: -Important Constitutional Question-Conflict with other state or

federal decisions

Texas Court System

T e xa s S u pre m e Co u rtCIVIL CASES

T e xa s C ou r t o f C r im ina l A p pe a lsCRIM INAL CASES

L im ited Ju r isd ictionC o u r ts

S ta te T r ia l C ou r ts S ta te A g e nc ies

S ta te C o u r ts o f A p pe a lB o th C iv il & C rim in a l

Venue• Within a particular jurisdiction, the most

appropriate location for a trial to be held and from which a jury will be selected.

Standing to Sue

• StandingAn individual must have a legal and tangible stake in the controversy

• Justiciable controversyThe controversy must be actual (the courts will not decide a hypothetical situation)

Alternative Dispute Resolution• Alternative Dispute Resolution (or “ADR”)

is a variety of methods that seek to resolve disputes without resorting to a costly jury trial.

Alternative Dispute Resolution• Negotiation - between the parties directly,

with or without attorneys.

Alternative Dispute Resolution• Mediation - Non-binding procedure

utilizing the services of a neutral third party to assist negotiations.

Alternative Dispute Resolution• Arbitration - A binding form of mediation

utilizing either one person or a panel of persons chosen by the court or agreed to by the parties (or both).

Courts and Alternative Dispute Resolution

End of Chapter 2