Foundations of Law and Dispute Resolution Flashcards
Constitutions
Courts may be called on to interpret the U.S. constitution or a state constitution. For example, lawsuits concerning random drug testing of employees have centered on whether this testing violates the Fourth Amendment ban on unreasonable searches and other constitutional provisions guaranteeing the right to privacy.
Statutes
States have the ability to manage their own laws for health and well being
Administrative Law / Agency
Federal can trump state agency (local laws): “Chevron difference”
Regulations
• Regulations at the Federal Level: rules from agencies- SCC, FCC, OSHA
Provisions issued by federal and state administrative agencies and executive departments to interpret and implement statutes enacted by the legislature. For example, the Securities and Exchange Commission issues regulations governing the sale of securities, and the U.S. Citizenship and Immigration Services in the Department of Homeland Security issues regulations governing immigration and naturalization as a U.S. citizen
Executive Orders
orders- given by congress, courts or existing president
Common Law (Case Law)
• Can come from opinions from state
• Case law. Judge-made rules of law, derived from the facts of particular cases, as set forth in published decisions.
If no statute or Const. provision clearly controls, state or federal courts will make decisions (that have the force of law) to fill in the gaps between statutes. E.g., Statute: “no vehicles in the park” – but courts decide what’s a “vehicle” and why
Civil cases
Parties: Usually private litigants (but sometimes gov’t too)
Nature of the Claim: Br/K, common law torts, civil statutory violations, etc.
Remedies: typically compensation; sometimes equity (injunction)
Burden of Proof: Claimant must prove claim by a “preponderance of the evidence”
Criminal cases
Parties: government (state or federal) prosecuting an individual (the “defendant”), in the name of the public
Nature of the Claim: violation of written criminal statute
Remedies: prison and/or fine, death.
Burden of Proof: prosecutor must prove all elements of guilt (i.e., criminal act, criminal intent, causation, etc.) “beyond a reasonable doubt”
Personal Jurisdiction (PJ)
Power over the defendant or property involved in the suit.
PJ exists over any person that resides in, and over property located in, its geographic territory.
Note: Corps. are dual residents: State of (1) incorporation and (2) principal place of business.
PJ also usually exists over any out-of-state D’s who (1) caused a tort in, or directed to, the forum State, (2) breaches contract formed, and sometimes even just part negotiated, in State, or (3) “Purposefully Avails” self of the forum state or its customers: i.e., advertises or sells its products in State, or places its goods in the “stream of commerce” with the intent that its goods be sold within the State.
Subject Matter Jurisdiction
power over the topic of the dispute.
State Cts can hear most federal or state law claims (i.e., breach of K, negligence, fraud, defamation, etc) but Fed. courts will only hear cases involving: (1) a “Federal Question”, or (2) “Diversity of Citizenship”
“Federal Question” = P’s “cause of action” is based on alleged violation of a right they have under the U.S. Constitution, a treaty, or a federal law or federal agency rule (i.e., 1st Amendment, Sherman Antitrust Act, etc.)
“Diversity of Citizenship” = Disputes arising between citizens of two different states, or citizens of a state and citizen of foreign country. All Ps & Ds must be residents of different states and damages alleged must be at least $75K.
**You can almost always be sued, for anything, where you reside, incorporate or have HQ. But you typically can’t be sued in places with which you have no connection. But intentional marketing & sales out-of-state can open you up to suits in those places, if that good/service/transaction causes harm.
Deciding Whether to Litigate or Settle
Factors to Consider:
Costs of Suit
Monetary Costs, Reputational Costs and publicity, Opportunity costs
Magnitude of potential recovery / liability, including opponent’s ability to pay.
Potential for counterclaims
Likelihood of Success
Collateral consequences
Res judicata (matter already decided won’t be decided again)
Damage to important relationships with key customers, suppliers, investors, etc.
Cost of Inaction
Loss of IP rights
Appearance of being a weak target
Class Actions = ?
How can they be certified
Cases in which representative plaintiff(s) litigate on behalf of a similarly situated group
To proceed, a judge must first “certify” the class
Can be certified only if it satisfies:
Numerosity (too many to join together)
Commonality (common question of law or fact)
Typicality (representatives’ claims must be typical of the class)
Reps must fairly and adequately represent the class (skilled attorneys, engaged Ps)
Motion for Summary Judgment
Party requesting motion is asking for a judgment before/during trial but after discovery.
If granted, SMJ motion can take case away from jury.
Only granted if no material facts in dispute.
Judge must look at the facts in the light most favorable to the party opposing the motion and may consider admissible evidence outside of pleadings
Documents obtained during discovery; Affidavits – sworn statements by parties / witnesses
