Ch. 3 Judicial Process and Alternative Dispute Resolution Flashcards Preview

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Flashcards in Ch. 3 Judicial Process and Alternative Dispute Resolution Deck (20):
1

What is the Adjudicative Model?

Adjudicative Model – Model in which a neutral and passive judge not chosen by parties makes a binding decision by applying established legal principles to a set of facts presented by opposing parties in conformity with strict and formal procedural rules.

2

What is an Administrative Tribunal?

A body designed to resolve disputes arising under specify laws and regulations, such as human rights act or landlord-tenant rules. Although tribunal is “quasi-judicial”, they are part of the executive (public administration) or legislative (in case of human rights tribunals) branches of the state and not the judiciary, and tribunal members are usually not judges.

3

What is Mediation?

A system of dispute resolution in which a third party is chosen by the participants in the dispute to assist in resolving it. The Mediator makes non-binding suggestions based on the interest expressed by the parties to the dispute

ADR - problem solving model

4

What is Arbitration ?

A system of dispute resolution in which the parties in the agree on a decision-maker-arbitrator- who makes a decision (binding or not binding depending on the type of arbitration) based on legal rules. The process is relatively formal.

ADR - problem solving model

5

What is binding ?

Binding - Common legal phrase indicating that an agreement has been consciously made, and certain actions are now either required or prohibited. For example, a lease for an apartment is legally binding, because upon signing the document, the lessor and the lessee are agreeing to a number of conditions.

6

Name the Models of Judicial Process in the Common Law System

1) Adjudicative
2) Policy-Making
3) Problem Solving

7

Model of Judicial Process in the Common Law System - Describe Adjudicative in terms of access to courts, number of parties and role of the judge, fact finding, mode of reasoning

Access to courts: Strict rules of standing, mootness, ripeness, and political question that make it hard to access

Number of parties and role of the judge: Bipolar (two parties)

Fact-finding: Adjudicative facts

Mode of reasoning: legal principle

8

Model of Judicial Process in the Common Law System - Describe Policy-Making in terms of access to courts, number of parties and role of the judge, fact-finding, mode of reasoning

Access to courts: Liberalized rules of standing, mootness, ripeness, and political questions that make access easier

Number of parties and role of the judge: Multi party/ encouraged

Fact-finding: Soci facts, interveners, relaxed

Mode of reasoning: Create rules to balance interest, and achieve "justice"
Relatively greater law-making

9

Model of Judicial Process in the Common Law System - Describe Problem-Solving in terms of access to courts, number of parties and role of the judge, fact-finding, mode of reasoning

Access to courts: N.A

The number of parties and role of the judge: Team-based approach, less formal, especially in the pre-trial ADR process

Fact-finding: More contextual knowledge of the litigant. Judge more active in fact-finding

Mode of reasoning: Focusing o solving problems of the litigant and building relationship

10

Define Standing

The requirement that an individual, group, or organization be party to a legal dispute in order to intiate a legal case. The degree to which bar has been enforced has varied.

11

Define a Moot case

Situations in which the underlying dispute that led to a legal conflict is no longer a live dispute. Often this is a result of parties settling.

12

Defien Ripeness

Part of the determination of what cases are approprioate for the courts to adjudicate. Ripeness requires that the issue has "matured" enough (facts) for the court to pronounce on it and that there are no alternatve mean of resolving.

13

What four things do you need to acess courts

standing,moot, ripeness

14

Problem solving model contain Alternative Dispute Resolution (ADR) process before trial. Describe this process

A process by which disputes are resolved without litigation. Two of the most common are mediation and arbitration.

15

Soci fact - Factums Define

biased - a written legal argument presented to the court by a party or intervener; also known as "brief" in the us

16

What are specialized courts/ therapeutical jurisprudence characters (3)?

takes place during trial stage.
1) Attention seeking to "tangible outcome for victims, for offenders and for society"
2) Collaboration of the courts with criminal justice agencies, government service providers, and community to help achieve goal for individuals by proving a PLAN and IMPLEMENTATION PROCESS
3) Non-traditional role lawyers and judges

17

Name the three soci-fats

1) Judicial Notice
2) Expert witness
3) Factums

18

What is judicial notice

When judges consider social factors or literature not presented by thr parties to the case,\

19

What is a expert witness

Individuals who provide specialzed testimony about a particular topic relevant int trial

20

R. Askov - Sex workers and delays eloborate

Askov used social facts to highlight the fact that his case after prelimanary hearing to 23 month over the "reasonable time for a trial" time that the courts allow. Subquently, when presented with this it made its way to the SC and they ruled in favor. This lead to 40K cases been dismissed. An example of soci facts going against the court.