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The Constitution and Dispute Resolution. Recommended Chapter Three review problems beginning on page 136 (Practice test):2, 3, 4, 5, 8, 9, 11 Recommended Chapter Five review problems beginning on page 136 (Practice test): 1, 3, 10, and 11. OBE 118, Section10, Fall, 2004

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The Constitution and Dispute Resolution

Recommended Chapter Three review problems beginning on page 136 (Practice test):2, 3, 4, 5, 8, 9, 11

Recommended Chapter Five review problems beginning on page 136 (Practice test): 1, 3, 10, and 11

OBE 118, Section10, Fall, 2004

Professor McKinsey

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Key Provisions of U.S. Constitution

Those giving the Federal Government Power:

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The Commerce Clause

“The Congress shall have the Power…to regulate Commerce…among the several states…”

Important because it gives federal to business because it gives power to the federal government while limiting power of state government.

  • Textbook is misleading here.

  • Affirmative power- when congress “ ”

  • The limit on federal power under the Commerce Clause? -

    • Activity regulated must have a on interstate commerce.

  • Dormant aspect of Commerce Clause covered later in this lecture.

Article 1, Section 8

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The Supremacy Clause

“This Constitution, and the Laws of the United States… shall be the supreme Law of the Land…”

Federal power wins over state power.

Article 6, Section 2

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Key Provisions of U.S. Constitution

Those giving the Federal Government Power:

  • Commerce Clause

  • Supremacy Clause

  • Enumerated Powers of the Branches

    • Judicial Review text is misleading, it is not controversial, it is completely accepted.

    • Judicial Review of the Constitution was established by .

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Case: Marbury v.Madison, 1803

William Marbury was commissioned as Justice of the Peace by exiting President John Adams

New president Thomas Jefferson did not deliver the commission

Marbury sued the Secretary of State, James Madison

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Key Provisions of U.S. Constitution

Those giving the State Governments Power:

  • 10th Amendment

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people.”

    Means: If the federal government is not given a power the States have the power unless the Constitution forbids them to have that power.

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Key Provisions of U.S. Constitution

Those Restricting Governmental Power:

  • Due Process Clauses

  • Takings Clause

  • Freedom of Speech

  • Contracts Clause

  • Dormant aspect of Commerce Clause restricting State power

  • Equal Protection Clause

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Due Process

  • Due Process Clauses

  • No deprivation of life liberty or property unless treated fairly

  • Depending on the forum, you have rights such as having a neutral decision maker, presenting your story, questioning the evidence against you, etc.

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Takings Clause

  • 5th Amendment: “…nor shall private property be taken for public use, without just compensation”

  • Full takings

  • Part of land takings (e.g. road easements)

  • A particular right?

  • Temporary?

  • “Inverse condemnation” versus “eminent domain”

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Dormant Commerce Clause

  • States cannot discriminate against interstate commerce.

  • No economic protectionism at state level

  • When federal law “occupies the field” then state law is invalid as well, even if it could survive a discrimination test.

  • Camps New Found/Owatonna v. Town of Harrison

    • Textual, on-its-face, discrimination against out-of-staters, its unconstitutional

  • What about unintended discrimination against out-of-staters, by a state statute?

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Equal Protection Clause

  • 14th Amendment: “ No State shall…deny any person within its jurisdiction the equal protection of the laws.”

  • When government classifies people, it can exceed its authority:

    • Racial, ethnic etc: unconstitutional most of the time (what about affirmative action)

    • Gender based: sometimes

    • Economic: usually okay

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Freedom of Speech

  • 1st Amendment: “ Congress shall make no law…abridging the freedom of speech…”

  • Government cannot prohibit political speech, expression of ideas, opinions etc.:

    • Government can regulate time, place, manner

    • Sometimes acts can be speech

    • Obscenity and commercial speech are less protected

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So you have a dispute….

Do I sue?

What are my goals in resolving this dispute?



Agreement between parties, resolution, quick, less expensive, private, etc.

Lawsuit, attorney’s fees, courtroom, judge, jury, public, etc.

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Using Courts to Resolve Disputes

  • What court? (Jurisdiction)

  • How does the court system work? (Civil Procedure)

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Federal versus State Jurisdiction

Exclusive Federal Jurisdiction

Federal crimes and certain federal matters such as antitrust, patent, bankruptcy

Concurrent Federal Jurisdiction

Diversity of citizenship cases

Federal matters not exclusive

Exclusive State Jurisdiction

All matters not covered above (State crimes, non-diversity civil suits based on state law, etc.)

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Court Jurisdiction

Concurrent Federal Jurisdiction

Exclusive Federal Jurisdiction

Exclusive State Jurisdiction

Federal Court

State #1 Court

State #2Court

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What Type of Court?

  • Courts of Limited versus General Jurisdiction

  • Trial versus Appellate courts

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Text is great in this area.

Pretrial Events

Trial Events

Post Trial Events

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  • Not always mandatory that court must take it

  • Scope of review

  • Errors of law- yes

  • Errors of fact- no*

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Alternative Dispute Resolution

  • Solving a dispute by reaching mutual agreement is always better than relying upon civil court system.

  • Negotiation

  • Mediation

  • Arbitration

  • Arbitration clauses

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Arbitration Clauses

  • Waiving right to Jury Trial

  • Waiving right to sue or use court system

  • Increasingly being allowed by courts

  • To be effective against individual or consumer they usually must be conspicuous and directly acknowledged by individual