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184 Cards in this Set
- Front
- Back
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Law
(definition) |
-All the official rules and codes that govern citizens' actions
-Including: The Constitution, statuatory laws enacted by the Legislature, case laws established by court decisions, and Administrative law as set forth by the executive branch agancies. |
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Natural Rights
(definition) |
Rights that we have because we are human beings, and which have been endowed by our Creator.
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Civil Rights
(definition) |
Personal rights reserved by the people and guaranteed by the Constitution.
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Common Law
(definition) |
The body of those principles and rules which derive their authority solely from usages and customs, or from the judgments or decrees of the Courts recognizing, affirming and enforcing such usages and customs.
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Statute/Statuatory Law
(definition) |
An act of a legislative body that declares, commands or prohibits somethings.
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Case Law
(definition) |
Rules of law announced in court decisions.
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The Court
(definition) |
An appellate court decides a question of law
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Precedent
(definition) |
A decision by a Court of proper authority, considered to serve as an example or as authority for future guidance in an identical or similar case arising thereafter.
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Stare Decisis
(definition) |
="to stand on decided cases."
-When Court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principal and apply it to all future cases where the facts are substantially the same. |
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Style of the Case
(definition) |
Name of the case...usually taking the names of the parties.
Example: Connell v. Payne |
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Case Citation
(definition) |
A description of the case, including the style of the case, the Court issuing the decision and the location of the case in the law reporters.
Example: Connell v. Payne, 814 S.W.2d 486 (Tex.App.--Dallas, 1991) |
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Substantive Law
(definition) |
All laws that define, describe, regulate, and create legal rights and obligations
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Procedural Law
(definition) |
The method of enforcing rights given by substantive law
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Public Law
(definition) |
Governs the relationship between people and their Government
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Private Law
(definition) |
Governs the relationship between private citizens
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Civil Law
(definition) |
Spells out duties which exist between persons or between persons and their governments, excluding duty not to commit criminal acts.
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Criminal Law
(definition) |
Wrongs committed against the public as a whole; the acts are prohibited by state, local or federal statuates. The government seeks to impose a penalty on a person who commits a crime.
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"Sports Law, Anyone?" by Philip R. Hochberg
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-Sports law does not exist per se. At least, the fireld cannot be described so simply, for it includes vast legal territory: taxes, labor, antitrust, copyrights, immigration.
-Routes: Quick and Easy way, find a 1st round draft pick in college and represent him in his negotiations. 2nd, join a firm and hope that lightening strikes with one of the firm's clients. 3rd, Become certified by various players union, etc., and hope you'll meet someone who may need help on a particular case. 4th, become an expert in a particular field and promote that expertise. |
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In America (free countries)...
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-The LAW is King.
Thomas Payne, Common Sense 1776 In absolute governments...the King is law |
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How are Law & Sport Similar?
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Sports is about action with rules/boundaries.
Has a vast body of internal law & regulations Has officials to dispense judgment, quickly/in public |
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Philosophically, What makes Laws necessary?
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1. To resolve conflicts betwwen people.
2. To resolve conflicts between individuals and society 3. To resolve conflicts created by our different beliefs, morals, viewpoints, or biases. ====Resolution of Conflicts |
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Practically, Why do we have Laws?
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1. To enforce the will of the people
2. To ensure just treatment for all people. 3. To maintain order. |
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Practically, Why do we have Laws?: To enforce the will of the people
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-"Will of the people is the only legitimate foundation of any government" - Thomas Jefferson, 1801
-How do we do this? - Elections. If you don't vote, don't complain. |
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Practically, Why do we have Laws?: To ensure just treatment for all people. (or try to...)
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2 types of rights:
-Natural Rights: "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness......" -Civil Rights: "That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government....." |
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Practically, Why do we have Laws?: To maintain order.
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Baseball cartoon with pitcher and his lawyer, and the catcher and his lawyer.
"My man called for a fastball, and your man threw a slider." |
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Codified Law is also called:
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Civil Law
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Codes
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Systematic collection of written rules of law.
*In civil law, case law is not law. Judges cannot make law. Only the code determines legal rights and obligations. |
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Code of Hammurabi
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(circa 1750 BC)
-Hammurabi=King of Babylon -King ruled under theory of "Divine Right" -Code had 282 provisions which dealt with many aspects of life, including family rights, trade, tariffs, taxes, prices and wages. -It is inscribed on a stone slabe over 2 m/6 ft high. At the top, King is shown receiving laws from the Babulonion sun god, Shamash. -Laws are not the same for rich and ppor, but the weak were given protection against the tyranny of the strong. -Code was the not the only law code in Mesopotamia, but it was the only one written in stone. |
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Excerpts from Code of Hammuabi:
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-River test...guy sinks means he's guilty. Guy survives means he's innocent. The victor takes over the other guy's house.
-Judge's written verdict is wrong...he shall pay 12 times the fine set by him in the case, and shall by publicly removed from the judge's bench, and never sit there to render judgement again. |
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Where is the Code of Hammurabi?
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At the Louvre Museum in Paris, France
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The 10 Commandments
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(circa 1200 BC)
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Ancient Greece - 600-300 BC
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-Rule should be by law, not man.
-Tried cases to "jurors" *First appearance of pure democracy -Organized into city/states of ~~10,000 men. no representatives, everyone involved (males) -Well understood laws of property, contracts, and commerce. |
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Democracy
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Demos = the people
Kratein = to rule Democracy = rule by the people |
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Romans: Twelve Table
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450 BC
-Romans had EXTREME respect and love for the law. -Had a Representative Democracy: Senate formed from nobility. Assembly formed from commoners. -Recognized individual rights of male Roman citizens -Roman legions carried a copy of the law with them, and instituted it as the rule of law when conquering new territory. |
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Romans: Corpus Juris Civilis
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527-565 AD
-Also known as the "Justinian Code" because codified under Emperor Justinian. -Consisted of 4 books. -Helped to encourage commerce. -Became canonical/ecclesiastical law of the Roman Catholic Church. -"Precepts of the law are these: to live honestly, to injure no one, and to give every man his due." |
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2 types of Common Law:
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1. Case Law
2. Statuatory Law |
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History of Common Law
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-Follows history of Great Britain
-Normans invaded in 1066, led by William the Conqueror -Curia Regis -The law became uniform or "common" throughout England. -Used to centralize the royal government -Adviseors/King Officials came from the highest noblemen, church leaders, etc. -Predecessor to both Engligh courts and Parliament |
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Curia Regis means:
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"Court of the King"
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Crusades
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1st = 1096 (30 years after William the Conconqueror conquers Great Britain)
2nd = 1144 3rd = 1187 |
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Magna Carta means:
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Great Charter
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Magna Carta was signed on:
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June 15th, 1215
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Magna Carta
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-Called the "Foundation of English liberty"
-Citizens acquired rights which protected them from the King. |
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Magna Carta includes provisions for:
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1. Regulation of justice
2. Definition of court jurisdiction 3. Securing personal liberty of subjects 4. Securing rights of property 5. Limited taxation 6. Preserving liberties/privileges of the church |
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King John and the Magna Carta:
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-King John bound his heirs, for ever, to grant all freemen of our kingdom the rights and liberties set forth in the Magna Carta.
-With the Magna Carta, King John placed himself and England's future soveigns and magistrates within the rule of law. |
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Magna Carta and the New World's migration
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-When Englishmen left their homeland to establish colonies in the New World, they brought with them charters guaranteeing that they and their heirs would have and enjoy all liberties and immunities of free and natural subjects.
-When American colonists raised arms against their mother country generations later, they were fighting to preserve liberties that dated to the 13th century. |
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Magna Carta and the US Constitution
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When representative of the young republic of the US gathered to draft a constitution, they turned to the legal system they knew and admired = English common law as evolved from the Magna Carta
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Magna Carta vs. US Constitution
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-Magna Carta is a charter of ancient liberties guaranteed by a king to his subjects.
-The Constitution of the United States establishes a government of, by, and for "We the People," deriving its "just powers from the consent of the governed." =While the English acquired their rights from their socerign King, we Americans reserved basic rights and protections to ourselves in the Bill of Rights. |
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Where Does Law Come From?
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4 major sources of American Law:
1. Constitutions 2. Statutes or Ordinances 3. Administrative Law 4. Case Law =the "Hierarchy of Law" |
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Constitutions
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Federal Constitution:
Article XI...the Supreme Law of the Land. State Constitutions are subordinate to U.S. Constitution. |
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Statutes vs. Ordinances
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Ordinance = Statute at the local level
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Federal Statutes
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Are enacted by the US Congress
Example: Title IX |
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State Statutes
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Are enacted by State Legislatures
Example: Agent laws |
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Administrative Law
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=Rules or regulations passed by a governmental Administrative Agency.
-Based on authority given by Congress (or Legislature) -They care the "force of law", meaning their regulations are equal to laws enacted by Congress. Ex- Title IX interpretations. Examples of Administrative Agencies: IRS, EPA, OSHA, etc. |
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Case Law
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Only an appellate court can decide a question of law.
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Primary difference between common and civil law=
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If no law applies to the facts, under common law the courts may create new law.
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Function of Courts
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To interpret or apply law from the other 3 sources to the facts of a case.
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Trial courts do NOT
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create "case law"
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State of Florida v. Unites States Department of Health and Human Services (1/31/11)
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Regarless of how laudable its attempts may have been to accomplish these goals in passing the Act, *Congress must operate within the bounds established by the Constitution.
**This case's opinion^ illustrates the function of courts in our legal system. |
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How do courts create case law?
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Precedent
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"Stare Decisis" means:
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"to stand on decided cases"
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Precedent and Stare Decisis
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Precedents are used as "Stare Decisis"
Example: our triology of Baseball cases -Federal Baseball Club v. National League (1922) -Toolson v. New York Yankees (1953) -Flood v. Kuhn (1972) |
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Doctrine of Stare Decisis
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-When a Court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principal and apply it to all future cases where the facts are substantially the same.
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Doctrine of Stare Decisis (con't)
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However, when the court determines that previous law should be changed, it will rended a different decision.
Example: -Plessy v Ferguson (1898) -Brown v. Board of Education (1954) |
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How do we identify and find case precedents?
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Through legal research, using the Style of the Case and the Case Citation
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Comparison of Types of Law: Substantive v. Procedural
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Substantive: All laws that define, describe, or create legal rights and obligations.
Procedural: The method of enforcing rights given by substantive law |
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Comparison of Types of Law: Public v. Private
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Public: Governs the relationship between people and their Government
Private: Governs the relationship betwen private citizens |
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Comparison of Types of Law: Criminal v. Civil
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Criminal: Wrongs committed against the public as a whole. The government seeks to impose a penalty.
Civil: Sets forth rights adn obligations between people, or between people and their governments; includes everything but criminal law. |
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Sources of American Law
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=The Hierarchy of Law
Constitutions Statutes or Ordinances Administrative Law Case Law |
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History of Law
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Codified Law....Common Law
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Goals: how will you reach them?
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-They are just wishes unless you have a definite plan for how you’re going to make them happen.
-What are you going to do in the next week, month, semester, year, 3 years, 5 years, to reach your goals? |
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Where do laws come from?
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-We go back to 1776 and Common Sense.
-1776 context: a king that does whatever he wants, colonist want a revolution and they want the rule of law that applies to everyone and cannot be changed. Today, the law applies to everyone. (not justice, or applied the same) a. Similar? Interchange law and sport and see if the statement makes sense. Everything involved in sport is subject to our laws. |
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We TRY to:
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ensure justice
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Natural Rights
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Rights we as Americans say we have by no other reason than our birth
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Civil Rights
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-Personal rights we have reserved to ourselves, and are provided by the Constitution.
-Bill of Rights, first 10 amendments to the constitution, and statues that preserve the constitution. |
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We all operate under the same ideas and rules...
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It's called a "home run" no matter what state we're in.
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Common Law=
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What we have in the US today
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Codified Law
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-come from Codes.
-Take all of the law and put it into written form. -100% of all laws that govern a society. -If no law covers it, a judge does not have the power to solve the dispute |
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First full set of laws we know about?=
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=Code of Hamurrabi
-Archeologists have found other pieces of law before this, but this is the first full set. |
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Context of the Code of Hammurabi
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-Babylon=In Iraq.
-The cradle of civilization. Between the Tigris and Euphrates rivers. (Bagdad pretty much.) -In those days, king ruled by Divine Right, or as god’s representative/god on earth here. |
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Code of Hammurabi did what?
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-Set forth the rights of people in the civilizations.
-It was put in the middle of the crossroad between the 2 busiest streets, so all could see it. |
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10 Commandments story
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-When Moses and the people of Israel left Egypt, Moses went up on Mt. Syonide, threw fire, and wrote them on the 2 tablets.
-People didn’t follow them, and he broke them. |
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Where are the 10 commandments today?
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In the Ark of the Covenant.
-A box that preceded the Israelites into battle. -Thought was that this made you the army of God and would survive (?) |
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2 sets of laws were created around the same time...
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Romans and Greeks created laws around the same time, but the Greeks' laws ended first.
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Greeks
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decided there should not be a king, but that ruling should be by law and not by man.
-First to have a trial for a commoner. -PURE democracy. |
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Where is PURE democracy seen today?
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-Only seen today in one limited place in the US.
-Pure law=everyone gets to vote on everything. =Very old townships in the original colonies in the northeast. City meetings called...and so on. |
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Vital invention from the Greeks?
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Vowels.
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Division of the Greek city-states:
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-Divided themselves, and each one had a function in the government.
-At 7, men would become trained in their city’s profession. Education came from Athens. Warriors in Sparta. Etc. -Think about what Greece looks like. Tons of islands= Involved in trading and commerce. (Why they developed business laws.) |
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12 Tables=
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set of laws that governed Roman life.
*First time rights and protections are given to individuals (meaning free white males) |
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Romans after 450 BC
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-Took over all of Western Europe, as far north as southern Scotland, and set up Hadrian’s Wall, which still exists. Northern Africa to southern Scotland, east to the Rhine River.
-First thing most societies will establish after conquering new territory? Religion. At this point, no official religion of Rome, sort of a pagan religion. *But, because of their love of law, they took their 12 tables/laws with them. |
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390 AD
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The RCC is established. Throughout Western Europe, Catholicism was implemented with the expanding Roman Empire.
-The Guales defeat the Romans, and Romans retreat to Rome. |
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After Guale defeats Rome
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The Dark Ages occur. No organized government, no central government, no learning, no movement. Nothing was going on in Western Europe for 500-700 years. Romans have retreated, with a smaller society than before.
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Corpus Juris Civilis means:
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Body, Law, Civil --> the Body of Civil Laws.
-Put together at the instruction of Emporoer Justinian. (where the word justice comes from). -EJ cherry picked laws from the Greeks and other civilizations, and combined with their favorite laws, and made the set of laws. Took a lot from the Greeks actually. -Summary…what the law should do. Also became church law…canonical law or cannon law of the church. |
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What’s the 2nd thing people set up?
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=Their laws, their government.
-Over time, Roman Catholic Church still exists, and is adopted by others during/after the dark ages, and adopted Corpus Juris Civilis as well. |
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France
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-Established Lousiana
-Today, many of the laws under Corpus Juris Civilis still existed until the last 20-30 years. Example: Used to be the case you could not disinherit your children. |
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Constitution falls under...
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Statutory Law
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First thing William the Conqueror does when he takes over Great Britain?
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=Establish religion = Roman Catholicism.
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2nd thing William the Conqueror does when he takes over Great Britain?
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=Establish a governmental system to set forth the rules and the laws.
-Became obvious to WTC and his heirs that they could not effectively control and establish laws throughout all of GB. They needed help. -Henry II (nephew?) created Curia Regis="Court of the King" |
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How Henry's plan operated:
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READ SEPERATE PIECE OF PAPER
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Magna Carta background story:
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-Barons got fed up with the taxes and unfair ruling.
-Barons and their 25,000 men and the king and his 5,000 knights battle across a meadow at Runny Mead. -Conversation resulted in a settlement with the land owners/barons called the Magna Carta in Latin="Great Charter." -Terms of this compromise were put into writing. -England had not created a constitution to rule the land, so the Magna Carta became their constitution. -Personal liberty of subjects=bail. Grandeurs=evidence must be shown. Rights of property=rulers of the land became owners of the land…so it can be passed down. Catholic church guaranteed certain rights and privileges. |
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King John and the Magna Carta
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=Everyone is subject to the law, and has the protections from the Magna Carta.
-King’s seal used to authenticate a document. Melted candle wax, and took the King’s wooden tool with his seal to press the wax impression. -Still use the term “signed and sealed.” -Smaller seals in rings called signate rings, which leads to signature. |
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Magna Carta a valid document?
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-The king was under duress at the time of its creation. (?)
-Later king declared it legit, and ever since has been deemed valid. -A case even 3-4 years ago used the Magna Carta to solve a case. |
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How would you expect the pilgrims to structure their government?
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By mimicking what they know..
-The same way the Magna Carta set up England’s government. -When we go through the revolution and create our own constitution, we go to the same ideas the colonists were familiar with, and were contained in the Magna Carta. -Our constitution and Magna Carta are parallelly structured. |
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1 huge difference between the Magna Carta and the US Constitution =
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In the US, the king did not give us any rights. We the people reserved our rights.
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Hierarchy:
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-The higher up you go, the higher control you have over the lower levels.
-The Supreme Court is the highest court in the land, not the highest law in the land. |
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Example of how Appellant courts creat law, and trial courts do not =
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Sante Fe ISD v. ____ Pregame football game prayer deemed unconstitutional.
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Antitrust Law:
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-Prevents the creation of monopolies.
-FBC sues NL under the Sherman Antitrust League. |
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"case study method"
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-How most law schools in the United States teach curriculum.
-Students read previous cases in order to learn how courts make legal decisions by applying relevant law to the facts of the case. -Students learn not only "the law", but also gain an understanding of the reasoning courts use in deciding disputes. -By acquiring the ability to understand courts' reasoning, and to learn basic legal principles, you will gain at least a rudimentary basis for decision making. |
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The purpose of case study:
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To help you avoid or resolve problems that will occur during your career.
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Case Study Method is sometime referred to by an acronym know as:
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FIRAC. The letters stand for:
F = Facts I = Issues R = Rules of Law Applied A = Analysis or Reasoning (Applying the pertinent law to the facts of the case) C = Conclusion |
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Brief Form-Format (allows students to more clearly comprehend the particular case.)
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Court: Name of Court
Case History: Who won in trial court; what happened on earlier appeal Fasts: Short Summary of Pertinent Facts Issue(s): what is the court being asked to decide? P Argument: the Plaintiff's contention(s) D Argument: the Defendant's contention(s) Rule/Law: Applicable Law Conclusion: Who won and why (court's reasoning) |
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2 Sources to find "Substantive" Law
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1. Primary Authorities
2. Secondary Authorities |
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Primary Authorities
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-"The Law"
-4 Primary sources of substantive law: A. Constitutions B. Statutes C. Administrative Law (Adm. Rules & Regulations) D. Cases |
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Secondary Authorities
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These sources analyze the law, present an overview, and cite both primary and other secondary authorities.
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Advantages of Secondary Authorities
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Basic overview and review
references to other materials |
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Major Secondary Authorities:
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A. Legal Encyclopedias
B. Annotations C. Legal Periodicals & Journals D. Law Reviews E. Book & Treatises F. Legal Dictionaries and so on... |
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Legal Encyclopedias
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Present detailed commentaries and summaries
Example: American Jurisprudence (Am Jur) Texas Jurisprudence 3d (TJ3d) |
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Annotations
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Compilation of articles on specific cases or points of law
Example: American Law Reports (ALR) Texas Digest |
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Legal Periodicals & Journals
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Distributed by professional associations
Example: Texas State Bar Journal (Periodical) Journal of Legal Aspects of Sport (Peer Reviewed Journal) |
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Law Reviews
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Narrow focus, they are written primarily by and for lawyers or law students
Example: Marquette Sports Law Review Texas Entertainment & Sports Law Review |
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Books & Treatises
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Example: Law for Recreation and Sport Managers
Sports Law: Cases and Materials |
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Legal Dictionaries
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Provides definitions of legal terms with case references
Example: Black's Law Dictionary |
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Online Resources available through TAMU library:
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Westlaw: Search "Westlaw"
Lexis-Nexis: Search "LexisNexis database" |
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How to Brief a Case
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=FIRAC
Facts Issues Rule of Law Applied Analysis or Reasoning Conclusion |
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Research Plan
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1. Identify the Problem (called the "legal issue")
2. Consult a secondary authority or 3. Read primary source (Constitution, Statute, etc.) 4. Read (and Brief) Cases 5. Locate Other Cases 6. Organize the Information (Outline) |
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Pop Quiz #1 Question Purposes
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1. Simple answers. "Open the door, put giraffe in, close the door."
2. Previous actions. "Take giraffe out, put elephant in." 3. Memory. Who is not at the Animal King's conference? "elephant...he is in the refrigerator!" 4. Learning. Why can we cross the river that's home to alligators? "they're at the Animal King conference" |
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Pop Quiz #1 Statistics
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90% of college graduates got all 4 wrong
most preschoolers got several correct Tips: 1. Read carefully 2. don't assume facts that are not a part of the question 3. don't overanalyze 4. think logically, but creatively |
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Negotiation
(definition) |
A process involving formal or informal discussions in order to reach an agreement
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Mediation
(definition) |
The submission of a dispute to a disinterested third person who intervenes between the parties in an attempt to settle their dispute without litigation.
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Mediator
(definition) |
Disinterested person who attempts to get parties to settle their dispute voluntarily.
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Arbitration
(definition) |
Submission of a dispute to a third person to decide disputes.
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Arbitrator
(definition) |
A private, disinterested person, chosen by the parties in a dispute, for the purpose of hearing each parties' contention, and rendering judgment between them.
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Arbitration Clause
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Agreement that any disputes arising under a contract will be resolved by arbitration.
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Jurisdiction
(definition) |
The authority, capacity, power or right of a particular Court to act or deal with a certain subject matter.
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Venue
(definition) |
The location where a case should be filed and tried.
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Standing
(definition) |
Right to bring suit to seek judicial resolution of a controversy involving a legally protectable interest.
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Justiciable Controversy
(definition) |
A real and substantial controversy as apposed to a hypothetical or academic question.
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Burden of Proof
(definition) |
The duty of a party to affirmatively prove a disputed fact, assertion, or charge. It includes both the burden of persuasion and the burden of production. The Plaintiff usually has the burden of proof, but not always.
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Preponderance of the Evidence
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The greater weight of evidence to show which claim is more credible and convincing to the mind; which factual claim is more likely true and reasonable.
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Affirmed
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No significant error in trial court; judgment remains as entered.
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Reverse and Render
(definition) |
Trial court made a significant error. Court sets aside prior judgment and enters (renders) the judgment that the lower court should have.
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Reverse and Remand
(definition) |
Trial court made a significant error. Court sets aside prior judgment and returns (remands) the case for further consideration using correct law or procedure.
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Petition for Review
(definition) |
A request for the Texas Supreme Court to review Appellate Court record to examine if errors have been made.
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Writ of Certiorari
(definition) |
An order issued by the US Supreme Court to the Federal Court of Appeals ordering that a case be sent to the Supreme Court for review.
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Citation
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(given an example of a blank Citation template)
Notice to Defendant: "You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10am on the Monday next following the expiration of twenty days after you were served this citation and petition, a default judgment may be taken against you." |
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Citation time constraint
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20 Days begin when you serve it to them/give it to them.
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"default judgment"
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= forfeit
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"Texas A&M unhappy Seattle fans called '12th man' "
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article posted on January 28th, 2006
-Seattle Seahawks v. Pittsburgh Steelers in Super Bowl -A&M officials upset the Seahawks' use of the "12th Man" theme to recognize their fan support. -A&M legal claims on tradition going back to the 1920s. -Seahawks celebrated fans as a "12th Man" since 1980s. -Seahawks retired #12 in 1984 to honor fans who made the old Kingdome 1 of the noisiest stadiums in football. -12 flag flies atop Space Needle (city's signature) -"12th Man" banner raised at new Qwest Field. -A&M faced Centre College in 1922. EKG. Won 22-14 -A&M registered trademarks for "The 12th Man" label in 1990 & 1996. -Seahawks VP said the fans have run with the 12th Man, not the organization itself. |
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"Seahawks, A&M resolve '12th man' dispute"
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May 8, 2006
-Both TAMU and the Seattle Seahawks will be able to use the phrase. -Seahawks acknowledge TAMU's ownership rights of the trademarked phrase, but may continue using it under license. -Neither admitted any fault or liability. -Only change=on any broadcasts that feature 12th Man, a statement that the 12th Man is a trademark of TAMU will be included on such broadcasts. |
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Where was the TAMU/Seahawks case filed?
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The university filed lawsuit in Brazos county.
Restraining order was issued calling on the Seahawks to halt any usage of "12 Man" or "12th Mania" |
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3 Ways to Resolve Disputes
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1. Negotiation
2. Alternative Dispute Resolution 3. Litigation |
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Key to Negotiation?:
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= Who has the LEVERAGE.
Cartoon caption "next time, I get to choose the weapon first" |
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Advantages of Alternative Dispute Resolution (ADR)
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1. Less expensive
2. Quicker 3. Fewer procedural rules: only rules=the one handling the process instills himself. 4. Confidential: particularly in business situations...trade secrets, scandals, etc. 5. Range of resolutions 6. Preservation of relationship 7. Special knowledge by third party |
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2 Primary Types of Alternative Dispute Resolution (ADR)
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1. Mediation
2. Arbitration |
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What the Mediator does:
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1. Talks to parties in an informal atmosphere
2. Listens to all sides of dispute 3. Analyses each party's contentions 4. Communicates with each party (separate them in order to reach a settlement. shuttle between parties.) 5. Assists in settling the dispute, if possible. Mediator facilitates settlement. Mediator makes NO ruling or decision. |
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How arbitration works:
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The Arbitrator sets his/her own procedural rules.
The Arbitrator: 1. Holds an informal hearing 2. Listens to all parties' witnesses & positions 3. Makes a ruling or decision (called an "award")** |
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Is Arbitrator's decision binding?
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Only if the parties agree in advance to the Arbitration
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Is there a required formal for the agreement?
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The agreement should be in writing.
In Texas, it doesn't have to be in writing, but why would you not put it in writing if you agreed to it?? |
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Arbitration Clause is normally contained, where?
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Am Arbitration clause is normally contained in the Collective Bargaining Agreement ("CBA") in professional sport leagues.
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Texas Civil Practice and Remedies Code
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-Policy of state: encourage peaceable resolution of disputes, & the early settlement of pending litigation through voluntary settlement procedures.
-Court may refer a pending dispute for resolution through an ADR process...you are not required to accept the settlement offered, unless you agree w/ it. -Mediation: Mediator may NOT impose his own judgment on the issues for the parties. |
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Exceptions to Confidentiality procedures:
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If child abuse/sexual abuse is admitted to.
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Litigation
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=going to court & filing a suit to resolve a dispute.
Suits are handled by courts for the purpose: Orderly resolution of conflicts. |
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Four Things are necessary for a Court to hear a case!
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1. The Court must have jurisdiction of the case.
2. the Court must have venue for the case. 3. The parties must have standing to present the case. 4. The dispute must be a justiciable controversy. *(j vs. j) -If one of these are missing--the court CANNOT hear the case. |
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Jurisdiction means:
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Juris = law
diction = to speak Jurisdiction = the power to speak the law. It is the power to hear and decide the case. (comparable to the word "love") |
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Without Jurisdiction:
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1. A court cannot exercise authority in the case
2. Any orders entered by the Court will be void. |
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Each Court's jurisdiction is established by:
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1. The Constitution (state or federal) or
2. A Legislative enactment that creates that court, or 3. A statute that gives the court jurisdiction. |
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Jurisdiction example:
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Bankruptcy Act: Federal Court has jurisdiction in Bankruptcy cases.
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2 Types of Jurisdiction
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1. Case Jurisdiction
2. Court Jurisdiction |
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Case Jurisdiction
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=Over someone or something
-Personal Jurisdiction: over a person -In Rem Jurisdiction: over property -Subject Matter Jurisdiction: over the subject of the case |
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Court Jurisdiction
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=which level of court hears the case.
-Original/Trial Jurisdiction: over the trial of the case -Appellate Jurisdiction: over appeal hearings |
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Case Jurisdiction (over someone or something): Personal Jurisdiction
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-Court must have jurisdiction over all parties. 1) Plaintiff voluntarily submits to jurisdiction, or 2) Jurisdiction is secured by service of Citation.
-Without personal jurisdiction, court has no authority to enter judgment against the litigant. |
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Case Jurisdiction (over someone or something): In Rem Jurisdiction
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Jurisdiction taken directly against property within the boundaries of the court's domain.
Examples: Domain Name Property confiscated in drug deal. |
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Case Jurisdiction (over someone or something): Subject Matter Jurisdiction:
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Type of case a court can hear. Usually defined by statue or constitution creating the Court.
Example: Criminal courts hear criminal cases Probate courts hear Estate cases Domestic courts hear divorce and/or custody cases. |
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Case Jurisdiction (over someone or something): Subject Matter Jurisdiction (con't):
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In addition: court's ability to hear a case may be limited by the amount of money in controversy.
Examples: Small Claims Court, Justice of the Peace Court, County Court at Law, District Court |
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Court has to have:
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Personal Jurisdiction OR In Rem Jurisdiction (property) AND Subject Matter Jurisdiction.
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District Court =
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General court of jurisdiction
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Court Jurisdiction: (Which level of court hears the case)
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1. Original (or Trial) Jurisdiction: Case is heard for the first time.
2. Appellate Jurisdiction: An appeals court reviews the case to determine if the trial court made a mistake. **Only Appellate Court makes case law. |
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Venue
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(Venue typically determined by statutes)
Each court has a limited, defined area to hear cases. Usually a city or county is the defined area. Venue is determined by Legislative statutes. |
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General Rule of Venue:
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A case should be tried where the even giving rise to the lawsuit occurred.
Example: Injury to spectator (general rule) |
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Venue might be set by a specific statute (exceptions):
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Example: Breach of contract (Usually where signed, or to be performed, or where agreed by parties)
Suits against business entity (where business is located or has an office) |
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Standing
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The party to the suit must have been injured.
Example: 12th Man v. Seattle Seahawks lawsuit |
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Justiciable Controversy
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This must be a real and substantial controversy. It cannot be a hypothetical or academic question.
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The purpose of the court system:
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The orderly resolution of disputes.
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Two Court Systems in the US:
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1. State Court System
2. Federal Court System |
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State Court System
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Generally has 3 levels:
1. Trial Court 2. Mid-level Court 3. Highest Court |
