What is judicial review? How and when was the power of judicial review established? 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?  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?  © 2012 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. 2

What is the difference between a trial court and an appellate court? What is the difference between a trial court and an appellate court? What is discovery, and how does electronic discovery differ from traditional discovery? What is judicial review? basic structure of the United States government?  What is discovery, and how does electronic discovery differ from traditional discovery? What is judicial review? basic structure of the United States government?  © 2012 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. 3

What constitutional clause gives the federal government the power to regulate commercial activities among the various states?  What constitutional clause gives the federal government the power to regulate commercial activities among the various states?  © 2012 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. 4

Judicial Review was established by the U.S. Supreme Court in Marbury v. Madison (1803) where Chief Justice Marshall wrote: 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….” 5 © 2012 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.

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. 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. 6 © 2012 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.

Jurisdiction (cont’d). Jurisdiction (cont’d). – Jurisdiction Over Persons or Property. The power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate. © 2012 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. 7

Jurisdiction (cont’d). Jurisdiction (cont’d). – Jurisdiction Over Persons or Property (cont’d). In Rem: power to decide issues relating to real or personal property. A court generally has in rem jurisdiction over any property situated within its geographical borders. © 2012 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. 8

Jurisdiction (cont’d). Jurisdiction (cont’d). – Jurisdiction Over Persons or Property (cont’d). Long-Arm Statutes: courts use long-arm statutes for non-resident parties based on “minimum contacts” with state. Means defendant had some connection with forum state. © 2012 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 (cont’d). Jurisdiction (cont’d). – Jurisdiction Over Persons or Property (cont’d). Corporate Contacts: does the firm actively do business or advertise within the state? Did it place its goods or services into the “stream of commerce” in that state? © 2012 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

Jurisdiction (cont’d). Jurisdiction (cont’d). – Jurisdiction Over Subject Matter. General and Limited Jurisdiction. – Statutory limitation on the types of cases a court can hear (e.g., probate and bankruptcy). – Can also be limited to amount in controversy (amount of monetary damages). © 2012 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 (cont’d). Jurisdiction (cont’d). – 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. © 2012 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. 12

Jurisdiction (cont’d). Jurisdiction (cont’d). – Jurisdiction of the Federal Courts. Federal Questions: rights or obligations of a party are created or defined by some federal law. Diversity of Citizenship: parties are not from same state, and amount in controversy must exceed $75,000. © 2012 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

Jurisdiction (cont’d). Jurisdiction (cont’d). – Exclusive versus Concurrent Jurisdiction. Exclusive: only one court (state or federal) has the power (jurisdiction) to hear the case. Concurrent: more than one court can hear the case. © 2012 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

Jurisdiction in Cyberspace. Jurisdiction in Cyberspace. – “Sliding Scale” Standard to determine whether to exercise jurisdiction. – International Jurisdiction Issues. © 2012 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. 15 Some Interaction No Yes Substantial Business Interaction Passive Website

Venue. Venue. – Venue is concerned with the most appropriate location for the trial. – Generally, proper venue is whether the injury occurred. © 2012 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. 16

Standing to Sue. Standing to Sue. – A party must have suffered a legal injury and have a sufficient “stake” in the controversy. Oregon v. Legal Services Corp. – CASE 3.3 Oregon v. Legal Services Corp. (2009). Was there a “concrete” injury to the state? © 2012 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

© 2012 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

State Court Systems. State Court Systems. – Trials Courts. “Courts of record”- have court reporters. Small Claims Courts are informal, inferior courts with limited amounts in controversy (usually $5,000). Opening and closing arguments. Juries are selected. © 2012 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

State Court Systems (cont’d). State Court Systems (cont’d). – Appellate or Reviewing, Courts. Review trial court proceedings to determine whether the trial complied with procedural and substantive rules of law. Generally, appellate courts will consider questions of law, but not questions of fact. © 2012 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. 20

State Court Systems (cont’d). State Court Systems (cont’d). – Highest State Courts. Usually, but not always, called a ‘supreme court.’ Decisions of a state’s highest court on matters of state law are final. The U.S. Supreme Court can overrule a state supreme court when there are federal laws involved. © 2012 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

The Federal Court System. The Federal Court System. – Basically a three-tiered system: U.S. District Courts (trial courts of general jurisdiction). U.S. Courts of Appeal.  The U.S. Supreme Court.  © 2012 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

The Federal Court System (cont’d). The Federal Court System (cont’d). – U.S. District Courts: courts of original jurisdiction based on federal statutes. – U.S. Courts of Appeal: there are 13 Courts of Appeal representing district courts throughout the country.  © 2012 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

© 2012 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

© 2012 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. U.S. Supreme Court. U.S. Supreme Court. – Highest Court in the Land. – Final arbiter of U.S. Constitution. – Petition for Court to hear case by Writ of Certiorari. 25

Anderson his Marconi in Beverly Hills, California Kevin Anderson Lisa Marconi 26 © 2012 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.

Pleadings. Pleadings. – Plaintiff’s Complaint. Court acquires jurisdiction over subject matter and Plaintiff. Facts: What happened. Prayer: Court relief. 27 © 2012 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.

Pleadings (cont’d). Pleadings (cont’d). – Defendant’s Answer: response to the allegations stated in the Plaintiff’s Complaint. Defendant must specifically admit or deny each allegation in the complaint. May file counterclaim against plaintiff. May file affirmative defense. 28 © 2012 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.

Pleadings (cont’d). Pleadings (cont’d). – Motion to Dismiss: either party (normally defendant) can ask the court to dismiss the case if the pleadings fail to show a legal claim. 29 © 2012 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.

Pretrial Motions. Pretrial Motions. – Motion for Judgment on the Pleadings: asks the court to rule on the case, based on the pleadings. – Motion For Summary Judgment. Asks a court to grant a judgment for moving party without a trial. Facts are viewed in the light most favorable to the other party. 30 © 2012 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.

Discovery. Discovery. – Process by which parties obtain information from the opposing party prior to trial. – Depositions and Interrogatories. Blankenship v. Collier Case 3.2 Blankenship v. Collier (2010). What happens when Plaintiff fails to identify witnesses? – Requests for Other Information. 31 © 2012 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.

Discovery (cont’d). Discovery (cont’d). – Electronic Discovery (E-Evidence). FRCP deals specifically with preservation, retrieval, and production of electronic data. Pretrial Conference. Pretrial Conference. – After discovery is completed meet with trial judge, explore possibility of settlement, or identify issues in dispute. 32 © 2012 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.

Jury Selection. Jury Selection. – Voir Dire. – Jurors can be dismissed peremptorily (no reason or for cause (bias). The Trial. The Trial. – Opening Arguments. – Evidence must be relevant to the issues (tends to prove or disprove).  33 © 2012 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.

The Trial (cont’d). The Trial (cont’d). – Plaintiff’s Motion for Directed Verdict. – Defendant’s Evidence: p laintiff can ‘rebut’ the evidence, and defense can state ‘rejoinders.’ Posttrial Motions. Posttrial Motions. – After jury reaches a verdict, either party can make a posttrial motion.  34 © 2012 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.

Posttrial Motions (cont’d). Posttrial Motions (cont’d). – Motion for J.N.O.V.: granted only if the jury’s verdict was unreasonable and erroneous. – Motion for New Trial: after looking at all the evidence, judge will grant the motion IF the jury was in error. 35 © 2012 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.

The Appeal. The Appeal. – Filing: a party may appeal the jury’s verdict or any legal issue, motion or court ruling during the trial. Appellants must have legitimate grounds for appeal (usually legal error). – Appellate Review: appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision. 36 © 2012 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.

Enforcing the Judgment. Enforcing the Judgment. – Litigation process can reach a verdict, but what if the defendant has no assets, or insurance? – Usually, a plaintiff’s attorney will verify that the defendant has assets or insurance before she will proceed with the lawsuit. 37 © 2012 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.

Electronic Filing. Electronic Filing. – More than 60% of states now have some electronic filing system. Courts Online. Courts Online. Cyber Courts and Proceedings. Cyber Courts and Proceedings. 38 © 2012 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.

Negotiation. Negotiation. – Informal, sometimes without attorneys, where differences are discussed with the goal of “meeting of the minds” in resolving the case. – Successful negotiation involves thorough preparation. © 2012 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. 39

Mediation. Mediation. – Involves neutral 3 rd party ‘mediator’. – Mediator talks face-to-face with parties (in different rooms) to determine “common ground.”  © 2012 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. 40

Mediation (cont’d). Mediation (cont’d). – Advantages: few rules, customize process, parties control results (win- win). – Disadvantages: mediator fees, no sanctions or deadlines. © 2012 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. 41

Arbitration. Arbitration. – A more formal ADR. – Neutral 3 rd party renders a legally- binding decision. – Usually the arbitrator is an expert or well-respected government official. © 2012 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. 42

Arbitration (cont’d). Arbitration (cont’d). – Arbitration Clauses and Statutes. The Federal Arbitration Act. – Parties can agree to have decision confirmed in federal court. – FAA covers any arbitration clause in an interstate commerce. State Arbitration Statutes. © 2012 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. 43

Arbitration (cont’d). Arbitration (cont’d). – Issue of Arbitrability: party compels arbitration and court resolves the issue of whether arbitration is required. NCR Corp. v. Korala Associates, Ltd. CASE 3.3 NCR Corp. v. Korala Associates, Ltd. (2008). A mandatory employment arbitration clause is generally enforceable. © 2012 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. 44

Arbitration (cont’d). Arbitration (cont’d). – Mandatory Arbitration in the Employment Context. Many claim workers are not sufficiently protected with mandatory arbitration for employment issues. Landmark case: Gilmer v. Interstate/Johnson Lane Corp. (1991). Employee had waived his right to sue when he registered with NY Stock Exchange. © 2012 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. 45

Other Types of ADR. Other Types of ADR. – Assisted Negotiation. – Early Neutral Case Evaluation. – Mini-Trial. – Binding Arbitration. – Federal courts: summary jury trials (verdict is not binding but provides guidance to parties). © 2012 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. 46

Providers of ADR Services. Providers of ADR Services. – Nonprofit organizations: American Arbitration Association. Better Business Bureau. – For-Profit Organizations. – JAMSADR.com. © 2012 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. 47

Online Dispute Resolution. Online Dispute Resolution. – Also called ODR. – Uses the Internet to resolve disputes. – Still in its infancy but is gaining momentum. – See, e.g., Cybersettle, NAM, BBB, ICANN. © 2012 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. 48