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Chapter 2: Courts and Alternative Dispute Resolution. §1: 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:

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1 judiciary s role in american government
§1: 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….”

2 basic judicial requirements
§2: Basic Judicial Requirements

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.

types of jurisdiction state
Types of Jurisdiction-State
  • In Personam Jurisdiction.
  • In Rem Jurisdiction.
  • Quasi In Rem Jurisdiction.
  • Subject Matter Jurisdiction.
  • Amount in Controversy.
  • Concurrent.
in personam or personal jurisdiction
In Personam or “Personal” Jurisdiction
  • Power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate.
  • Courts use long-arm statutes for non-resident parties based on “minimum contacts” with state.
    • Case 2.1: Cole v. Mileti (1998).
in rem jurisdiction
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.

quasi in rem jurisdiction
Quasi-in Rem Jurisdiction

Limited in personam jurisdiction over an absent person by asserting in rem jurisdiction over any of the absent person’s property which is situated within the state in which the action is filed.

other jurisdiction
Other Jurisdiction
  • Courts can also exercise jurisdiction over:
    • The Subject Matter of the Case (e.g., bankruptcy, family or criminal cases).
    • The Amount in Controversy (the amount of damages).
federal court jurisdiction
Federal Court Jurisdiction
  • “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.
  • Venue is concerned with the most appropriate location for the trial.
  • Generally, proper venue is where the injury occurred.
  • 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.
    • Case 2.2: Friends of the Earth vs. Crown Central Petroleum (1996).
3 state and federal court systems

Texas Courts

Federal Courts

Ct. Criminal




U.S. Supreme


Court of



Courts of


District Court

County Court





U.S. District


§3: State and Federal Court Systems
trial courts
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 cross-examined.
  • Verdicts and Judgments are rendered.
appellate courts
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.
supreme courts
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 (official site), Oyez! Oyez! Site and the Texas Supreme Court.
4 alternative dispute resolution
§4: Alternative Dispute Resolution
  • Trials are a means of dispute resolution that are very expensive and sometimes take many months to resolve.
  • There are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.
  • ADR describes any procedure or device (including such internet sites as ) for resolving disputes other than the traditional judicial process.
  • Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets.
  • Most common: negotiation, mediation, arbitration.
  • Less than 10% of cases reach trial.
  • Negotiation is informal discussion of the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case.
  • Successful negotiation involves thorough preparation, from a position of strength.
assisted negotiation
Assisted Negotiation
  • Mini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3rd party (e.g., a retired judge) who renders a non-binding “verdict.” This facilitates further discussion and settlement.
  • Expert evaluations.
  • Conciliation: 3rd party assists in reconciling differences.
  • Involves a neutral 3rd party (mediator).
  • Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine “common ground.”
    • Advantages: few rules, customize process, parties control results (win-win).
    • Disadvantages: mediator fees, no sanctions or deadlines.
  • Many labor contracts have binding arbitration clauses.
  • Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official.
    • Recall the 1997 UPS strike when US. Labor Secretary Alexis Herman helped arbitrate the strike.
arbitration disadvantages
Arbitration Disadvantages
  • Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence.
  • Arbitrators do not have to issue written opinions.
  • Generally, no discovery available.
arbitration process
Arbitration Process
  • Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award.
  • Courts are not involved in arbitration unless arbitration clause in contract needs enforcement.
    • Can a union waive the rights of its members? Case 2.3: Wright v. Universal Maritime Service (1998).
adr and courts 2
ADR and Courts [2]
  • Court-related mediation.
  • Summary jury trials.
  • ADR and mass torts.
providers of adr services
Providers of ADR Services
  • Non-profit organizations:
    • American Arbitration Association.
    • Better Business Bureau.
  • For Profit:
    • enabled).
law on the web
Law on the Web
  • Internet ADR:
    • .
    • Online Ombuds Office.
  • American Arbitration Association.
  • Legal Research Exercises on the Web