Class Notes for Business Law, 8th Edition

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1“Where there is no law, there is no freedom.”John LockeI.Teacher to Teacher DialogueOne of the most common dilemmas facing instructors of business law is the issue of topicchoice.By the very nature of the subjects we teach, the breadth of materials is so wide thatchoosing what to focus on in the limited classroom time we have with our students can be a mostdaunting task.This problem is especially exacerbated when the topics we are dealing with are allof deep interest and can stand alone as separate courses.In this chapter, for example, we are asked to introduce students to topics ranging from thedefinitions and purposes of law to how our system affects business decisions, to some of the mostimportant provisions found in the U.S. Constitution.Any one of these subparts can provide theraw materials for an entire course at the law school level.Our job must start with a self-evident,but sometimes forgotten, point:this isnotlaw school.We are here not to train future lawyers butrather students who need to know enough about these issues to recognize that theyareissues.Thetechnical legal problems they may be facing later will ultimately need to be resolved using lawand other practitioners.The plus side of this dilemma is that because we have such a diverse menu to select from, weare able to pick and choose our areas of emphasis.For example, if your particular teaching andresearch interests lie in the area of ethics and the schools of jurisprudential thought from whichthey are derived, then by all means,runwith it!Rather than trying to be all things to all people,it is better to focus your efforts on your strengths.This does not mean that you can shortchangethe other material.All key objectives of the chapter should be fully outlined and incorporated inboth your lecture and materials outline.But if you have a particular interest and expertise in, forexample, the Law and Economics School of jurisprudential thought, then use them as focal pointsof comparison in the evolutionary process that seeks to distinguish the older schools ofjurisprudence from newer approaches to these issues.In any event, remember that philosophicalstudies of what law is and what its role is in the larger scheme of things have always posedquestions virtually impossible to answer.As mentioned in the student study guide, this chapterrepresents attempts by great thinkers to answer the unanswerable.It would be far toopresumptuous for us to think that we can teach, in a few hours, what the great philosophers of theworld have tried to do over hundreds of years.Perhaps this is an early lesson in what wisdom isreally all about:the more we know of history, the more we know of our own limitations.If wecan get that point across, the course is off to a good start.LEGALHERITAGEAND THEDIGITALAGE1

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Chapter 12II. Chapter Objectives•Define law.•Describe the functions of law.•Explain the development of the US legal system.•List and describe the sources of law in the UnitedStates.•Discuss the importance of the U.S. Supreme Court’s decision inBrown v. Board ofEducation.III.Key Question Checklist•What is law?•Once you have identified the kind of societal expectation of behavior, what standard ofbehavior is most appropriate?Does law codify the standard?Do one or more of theschools of jurisprudence support the standard?•What are the sources of law in the United States?•What body of law and/or ethical standards apply?•How would you apply these standards to the facts?IV. Text MaterialsThe first chapter’s objective is an introduction to the historical underpinnings of jurisprudentialthought. This would include not only the functions of law listed in the summary, but also an earlyopportunity to introduce the role of ethics based on the various schools of jurisprudencediscussed.What is Law?Laws consist of rules that regulate the conduct of individuals, businesses, and organizations,forbidding undesirable activities.Definition of Law–Law is a group of rules promulgated by a controlling authority, with legalconsequences for lack of compliance.Functions of the Law–Laws are created to keep the peace, shape morals, promote socialpolicies, maintain the status quo, facilitate change or planning, promote compromise, and/or tomaximizeindividual freedoms.Fairness of the Law–The American legal system is, overall, a comprehensive and fair system.Yetitis occasionally misused and abused.Flexibility of the Law–U.S. law has evolved and grown as a reflection of changes in society,technology, and commerce.The same general principles that we were established on still exist.The modifications exhibit the flexibility and maturity of our system to be able to adapt to thechanging commercial, social, and ethical environments.LandmarkU.S. Supreme CourtCase:Brown v. Board of Education

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Legal Heritage andtheDigitalAge3This box discusses the application of law where the Supreme Court overturned the “separate buyequal” doctrine that condoned separate schools for black children and white children.Case QuestionsCritical Legal Thinking:The states must treat all individuals in the same manner as others thatare in similar positions or situations, without favoring residents or any other group.Equalapplication is the important idea here.Ethics:Separate but equal cannot be applied when it comes to education, so the decision inPlessyv. Fergusonwas wrong.The Plessy decision was based on the idea of granting politicaland civil equality to African Americans, but left out social equality.ContemporaryBusiness:The US Constitution was drafted to reflect changing social, economic,technical, and intellectual ideas.This is what makes the Constitution unique, as it slowly adapts tothe changing world around us.Schools of Jurisprudential ThoughtThere are several different philosophies about how the law developed, ranging from the classicalnatural theory to modern theories of law and economics and critical legal studies.Thedifferentschoolsjurisprudential thoughtinclude the Natural Law School, based on the moraltheory of law; the Historical School, with its recognition of the social traditions and customs thathave developed over time; the Analytical School where law is shaped by logic; the SociologicalSchool where law is applied to advance sociological goals; the Command School whose laws areestablished by the ruling party rather than the society as a whole; the Critical Legal StudiesSchool who claim that laws are there only to maintain the status quo; and the Chicago School, orLaw and Economics School, which promotes market efficiency.International Law:Command School of Jurisprudence of North KoreaNorth Korea—the Democratic People’s Republic of Korea (or DPRK)—is a one party communistdictatorship that has been ruled by one family since 1948.North Korea’s legal system is based oncommunist theory and the Command School of jurisprudence. There is no judicial review ofgovernment-enacted laws or activities.History of American LawEnglish Common Law–English common law, the primary basis for U.S. law, was based onjudges issuing opinion when deciding a case.These opinions became the basis for precedent usedby later judges.The historical underpinning of U.S. law can be further reinforced with some discussion of the tie-ins betweenthecountry’spolitical history with that of the legal traditions of England and othercountries.This portion of the chapter materialcan be usedto introduce students to a broadoverview of the roles that the world’s major legal systems play in the world economy.Forexample, the role of the Law Merchant and its influence on international trade is critical tounderstanding most international rules on import/export laws today.The origins of the LawMerchant, in turn, are traceable in large part to the Roman civil law.In the end,the U.S.legalsystem represents the “Cuisinart” effect. There areingredients from English common law, Romancivil law, and Judeo-Christian canon law all thoroughly processed into a bread of law.Theindividual ingredients are all present, but each is no longer independently identifiable.

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Chapter 14Law Courts–These were established following the Norman Conquest of England in1066 to administer laws in a uniform method.Law Courts emphasized form oversubstance.Chancery Courts–These courts were established to serve when Law Courts providedinadequate remedies; theyprovidedequitable solutions.These courts reviewed the meritsof the case, rather than the procedural aspects.Merchant Courts-Law Merchant courts were developed as a separate entity to solvecommercial disputes in the Middle Ages. Theywere not merged into the regular courtsystem in England until the early 1900s.International Law:Adoption of English Common Law in AmericaAll the states of the United States of America except Louisiana base their legal systems primarilyon the English common law.Currently, the law of the United States is a combination of lawcreated by the judicial system and by congressional legislation.International Law:The Civil Law Systemof France and GermanyThe Romano-Germanic civil law system dates back to 450 B.C., when Rome adopted a set oflaws based on civil codes that applied to all Romans.The sole source of civil law in a country isthe application of code or statutes.Court decisions do not have the force of law.Sources of Law in the United StatesConstitutions–One of the goals of this chapter is tointroduce students to the role of the U.S.Constitution and its pivotal role in the ultimate distribution of powers between the federalgovernment and the states vis-à-vis the control of business conduct in the U.S.This section alsoexplains the three branches of the federal government: the legislative, executive, and judicialbranches.Treaties–The Constitution establishes that only the president, upon the advice and consent ofthe Senate, can enter into treaties with foreign powers.Federal Statutes–Statutes are written laws that establish and enforce certain courses of conduct.Congress enacts federal statutes, whilst state legislatures enact state statutes.Ordinances areadopted by local governmental bodies.Contemporary Environment:How a Bill Becomes LawThe U.S. Congress is composed of two chambers, the U.S. House of Representatives and the U.S.Senate. Thousands of bills are introduced in the U.S. Congress each year, but only a smallpercentage of them become law. First, a bill must be sponsored by a member of the U.S. House ofRepresentative or the U.S. Senate. Then, it is referred to the appropriate committee for review andstudy.Bills that receive the vote of a committee are reported to the full chamber, where they aredebated and voted on. If the bill receives majority vote from the full chamber,and a subsequentsecond chamber, then it is forwarded to the president’s desk. The bill becomes law when it issigned by the president.State Statutes–State legislatures enact state statutes. Such statutes are placed in code books.State statutes can be assessed in these hardcopy code books or online.

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Legal Heritage andtheDigitalAge5Ordinances–State legislatures often delegate lawmaking authority to local government bodies,including cities and municipalities, counties, school districts, water districts, and such. Thesegovernmental units are empowered to adopt ordinances. Ordinances are also codified.Executive Orders–The executive branch of the government is empowered to issue executiveorders.Regulations and Order of Administrative Agencies–Agencies are created to interpret andenforce statutes enacted by both federal and state Congresses.Judicial Decisions–Judges issue written decisions explaining their legal reasoning.Doctrine ofstare decisisestablishes past court decisions as a precedent for future decisions.Priority of Law in the United States–The U.S. Constitution and treaties take precedence overall other laws, followed by federal statutes and federal regulations.Federal law takes precedenceover conflicting state law, which has precedence over local laws.Similarly, state constitutionstake precedence over state statutes and regulations.International Law:Immigrants Who Came Through Ellis IslandOne of the major strengths of the United States is its cultural diversity. Ellis Island was theprimary entry point for immigrants entering the United States from the late 1800s until 1954.Digital LawThe electronic age arrived before new laws were written that were unique and specific for thisenvironment. Courts have applied existing laws to the new digital environment by requiringinterpretations and applications. In addition, new laws have been written that apply specifically tothis new environment. The U.S. Congress has led the way, enacting many new federal statutes toregulate the digital environmentV.Case Problem1.1Fairness of the Law:Many students will react that the statute is unfair as it does not affordwomen equal status in the workplace.In light of today’s standards, that position is well founded.However, it is a useful exercise to consider arguments for the opposite position in the context ofthe time period.In enacting such a statute, the legislature presumably entertained the view thatwomen had special needs, were subject to certain weaknesses, and therefore the demands madeon them had to be accommodated in the workplace.That these premises, i.e., special needs andpresumed weaknesses, might be false does not necessarily preclude one from acting morally.Moralists might label this ignorance as excusable in that it is “invincible,” i.e., an ignorance thatcannot be destroyed or offers no moral reason for doing so.Of course, modern experience andknowledge require that we question these premises.It almost certainly would not be lawful today.Not only have the items relevant to the test of equal protection broadened under presentconstitutional interpretations, but also Title VII of the Civil Rights Act of 1964 prohibits anydiscrimination on the basis of sex in the “terms, conditions and benefits of employment.”W. C.Ritchie & Co. v. Wayman, Attorney for Cook Country, Illinois, 244 Ill. 509, 91 N.E. 695, Web1910 Ill. Lexis 1958 (Supreme Court of Illinois).VI.Ethics Case

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Chapter 161.2Ethics:The better case is made by the dissent.The law has not been progressive in thisinstance.It is likely that legislators entertained an unconscious premise that women should not berequired to fight a war.This speculation might be supported by the fact that the majority of theSupreme Court summoned a technical legal point to justify their ruling.The Court held thatCongress was the proper party to articulate the public policy that women should not fight at thefront, thereby removing themselves from any further consideration of the substantive issue, i.e.,whether equality was being served as a matter of fairness.Rostker, Director of Selective Servicev. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478, Web 1981 U.S. Lexis 126 (SupremeCourt of the United States)VIII. Terms•Administrative agencies—Agencies (such as the Securities and Exchange Commissionand the Federal Trade Commission) that the legislative and executive branches of federaland state governments are empowered to establish.•Administrative rules and regulations—Used by administrative agencies to enforcestatutes.These rules and regulations have the force of law.•Analytical School—Schoolof jurisprudence maintains that the law is shaped by logic.•Bill—Many bills are introduced each year at the U.S. Congress, out of whichafew arepassed as law.•Brown v. Board of Education—A landmark Supreme Court case in which a unanimousdecision reversed prior precedent and held that the separate but equal doctrine violatedthe Equal Protection Clause of the Fourteenth Amendment to the Constitution.Thedecision led to the banning of school segregation.•Chamber—The U.S. Congress is composed of two chambers, the U.S. House ofRepresentatives and the U.S. Senate.•Civil Law—Acode of laws applicable to Romans. Also known as the Romano-Germaniccivil law system.•Code book—Federal statutes are organized by topic intocode books.•Codified law—Federal statutes that have been organized into code books.•CommandSchool—Schoolof jurisprudence that believes that the law is a set of rulesdeveloped, communicated, and enforced by the ruling party rather than a reflection of thesociety’s morality, history, logic, or sociology.•Committee—Billsfromeither ofthe two chambers of the U.S. Congress are reviewedand studied by an appropriate committee.The committeemay reject the bill,report it tothe full chamber for a vote, not act on it, or send it to a subcommittee for further study.•Conference committee—Committee made up of members of both the U.S. House ofRepresentatives and the U.S. Senate.•Constitution of the United States of America—The supreme law of the United States.•CourtofChancery—Court that granted relief based on fairness.Also called equity court.•CriticalLegal Studies School—School of Jurisprudence that proposes legal rules areunnecessary and are used as an obstacle by the powerful to maintain the status quo.•English common law—Law developed by judges who issued their opinions whendecidingacase. The principles announced in these cases becameprecedentfor laterjudges deciding similar cases.•Executive branch—A branch of the U.S.government that has the power to enforce thelaw. The president of the United States constitutes the executive branch of thegovernment.•Executiveorder—An order issued by a member of the executive branch of thegovernment.

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Legal Heritage andtheDigitalAge7•Federal Statute—Written laws, enacted by the U.S. Congress, that regulate foreign andinterstate commerce.•French Civil Code of 1804—One of the models used by countries that adopted civilcodes. Also known as the Napoleonic Code.•German Civil Code of 1896—One of the models for countries used by countries thatadopted civil code. Such codes act as the sole source of law in most civil law countries.•Historical School—School of jurisprudence that believes the law is an aggregate of socialtraditions and customs that have developed over the centuries.•Judicial branch—A branch of the U.S.government that has the power to interpret anddetermine the validity of the law. Also known as the courts.•Judicialdecision—A decision about an individual lawsuit issued by federal and statecourts.•Jurisprudence—The philosophy or science of law.•Law—That which must be obeyed and followed by citizens,subject to sanctions or legalconsequences; a body of rules of action or conduct prescribed by controlling authorityand having binding legal force.•Lawcourt—A court that developed and administered a uniform set of laws decreed bythe kings and queens after William the Conqueror, legal procedure was emphasized overmerits at this time.•Law and Economics School—School of jurisprudence that believes that promotingmarket efficiency should be the central goal of legal decision making.Also calledChicago School.•Law Merchant—Rules based on based on common trade practices and usage that wereapplied by merchants around England and Europe, in the Middle ages, to solvecommercial disputes. Also known as “law of merchants.”•Legislative branch—A branch of the U.S. government that has the power to enact thelaw. Also known as the U.S. Congress.•MerchantCourt—The separate set of courts established to administer the “law ofmerchants.”•Moral theory of law—Theory that proposes that the law should be based on morality andethics.•Natural Law School—Schoolof jurisprudence that postulates that the law is based onwhat is “correct.”•Order—A decision of an administrative agency.•Ordinance—Laws enacted by local government bodies,such as cities and municipalities,counties, school districts, and water districts.•Precedent—A rule of law established in a court decision.Lower courts must follow theprecedent established by higher courts.•Romano-Germanic civil law system—Legal system that dates back to 450 BCE whenRome adopted the Twelve Tables, a code of laws applicable to the Romans. Commonlyknown as civil law.•Sociological School—Schoolof jurisprudence that asserts that the law is a means ofachieving and advancing certain sociological goals.•Staredecisis—Latinfor“to stand by the decision.” Adherence to precedent.•State Constitution—Constitutions that establish the legislative, executive, and judicialbranches of state government and establish the powers of each branch.•State Statute—Statute enacted by state legislatures and placed in code books.

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Chapter 18•Statute—Written law enacted by the legislative branch of the federal and stategovernments that establishes certain courses of conduct that covered partiesmust adhereto.•Subcommittee—Studies bills sent by the committee. After review the subcommittee mayeither let the bill die or report it back to the full committee.•Treaty—A compact made between two or more nations.•U.S. Congress—Branch of the government that creates federal law by enacting statutes.•U.S. House of Representatives—A chamber of the U.S. Congress.•U.S. Senate—A chamber of the U.S. Congress.

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9“I was never ruined but twice: once when I lost a lawsuit, and once when I won one.”VoltaireI.Teacher to Teacher DialogueTwenty-first century technological advances have provided our students with all kinds ofinstant access to information. These devices have provided the students with a variety ofpreconceptions.Among these is the average undergraduate’s notion of how trials are conducted and the roleof attorneys in that process. Invariably these perceptions center on popular television series suchas “Law and Order” and “Court TV”. This is not all bad. Current media focus on numerous law-related issues has generated a whole new wave of public interest in the workings of our legalsystem. The downside is that the media has created many myths on the folklore of law andlawyers. In the world of pop culture, no one knows until the end who really did it until a surprisewitness shows up to identify the bad guy. In more modern versions, the attorney first has abusiness relationship with the client and then proceeds to get him or her acquitted. Regardless ofthe outcome, the process is always full of glamour and intrigue.The problem is that a trial rarely resembles the goings on found in the entertainment media.Trials are long, tedious, emotionally and financially draining processes for all parties concerned.In many ways, a trial represents a failure by the parties to reach some sort of satisfactory solutionof the issue beforehand. Rarely do the parties actually want to go through a labyrinth ofpleadings, motions, and the like, feeling all the while totally dependent on the sometimesquestionable competence of their attorneys. Unlike the make-believe world of entertainment, thejob of an attorney is to keep his or her client out of court. (This often needs some reinforcementwith the student.) The attorney’s professional advice should anticipate and resolve potential legalproblems before, rather than after, the fact if at all possible.It is against this backdrop that we should try to present a more realistic picture of how oursystem works. We can basically start by discussing how few controversies actually get to the trialstage and how even fewer of those are actually reported in the National Reporter System.Additionally, a fair amount of time should be spent reviewing the growing trend towardalternative dispute resolution (ADR) mechanisms. Personal experience examples might be helpfulin illustrating the growing trends toward ADR. To complete the cycle we can then proceed toitemize the key steps used in a court trial in this chapter and in these that follow.COURTSAND JURISDICTION2

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Chapter 210II. Chapter Objectives•Describestate court systems.•Describethe federal courtsystem.•List and describe the types of decisions that are issued by the U.S. Supreme Court.•Compare the jurisdiction of state courts with that of federal courts.•Definepersonal jurisdiction,standing to sue and venue.III. Key Question Checklist•If the dispute or controversy needs to be resolved in a court of law, which court hasjurisdiction?•Once jurisdiction is established, was the proper sequence of pretrial steps taken?•Was the trial sequence properly followed?•After the trial is completed, are any appeals from the decision applicable?IV. Text MaterialsOne objective of this chapter is to familiarize students with the role of the major players in thoseevents.The federal court system and the court systems of the 50 states and the District of Columbia arethe two major court systems in the U.S.Litigation is the process of bringing, maintaining, anddefending a lawsuit.In addition, there are a number of alternative dispute resolutions that can beused.State Court SystemsLimited-Jurisdiction Trial Court–Inferior trial like traffic courts, juvenile courts, justice-of-the peace courts, probate courts, family law courts hear specialized matter.Another example ofthese is the small claim courts that hear limited dollar amount civil cases.General-Jurisdiction Trial Court–Courts of Record keep a record of the testimony andevidence presented at trial for future reference.These courts hear felony cases, civil cases over acertain dollar amount, and other items.Intermediate Appellate Court–Courts of Appeal hear appeals from trial courts, reviewingrecords of trials for errors without hearing any new evidence.Highest State Court–State supreme courts hear appeals from intermediate state courts andsome trial courts, without hearing new evidence.Contemporary Environment:Delaware Courts Specialize in Hearing Business DisputesDelaware has created a special Chancery Court to decide business litigation, with a reputation forhandling corporate matters.Delaware’s laws also tend to favor corporate management, sotogether with the Chancery Court, the state has created an environment that encouragesincorporation in that state.Other states are beginning to follow suit and create their own variationof Delaware’s Chancery Court.

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Courtsand Jurisdiction11Federal Court SystemSpecial Federal Courts–There aresixcourts of limited jurisdiction: the U.S. tax court,federalclaims court, the Court of International Trade, bankruptcy court, and the courts of appeals for thearmed services and for veteran’s claims.U.S. District Courts–These are the federal court system’s 94trial courts of general jurisdiction.U.S. Courts of Appeal–These are the federal court system’s 13 intermediate appellate courts.Supreme Courtof the United StatesThe Supreme Court is composed of nine justices who are nominated by the President andconfirmed by the Senate.The President appoints one as the chief justice who is responsible forthe administration of the Court, while the other eight are considered associate justices.Contemporary Environment:The Process of Choosinga U.S.Supreme Court JusticeThe President appoints Supreme Court justices, with the advice and consent of the Senate(majority vote).This allows a form of balance of power between theexecutive and legislativebranches of the government.Jurisdiction of the U.S. Supreme Court–The Supreme Court hears appeals from the federaldistrict courts and from the highest state courts.Legal briefs are filed, oral arguments are made,lower court recordsarereviewed, but neither new evidence nor testimony is heard.The SupremeCourt decision is final.Decisions by the U.S. Supreme Court–Congress has established the rules for the mandatoryappellate review by the Supreme Court, which may also elect to hear cases at its discretion.Petitioners file a petition for certiorari asking for the Supreme Court to review their case.If thecourt decides to sit on the matter, it issues a writ of certiorari.The court hears about 100 cases peryear.Unanimous Decisions–All the justices voting agree as to both the outcome and thereasoning.These decisions become precedent.Majority Decision–Decisions by the Supreme Court are considered majority decisionsif a majority of the justices agree on the outcome and reasoning.These decisions becomeprecedent.Plurality Decision–A plurality decision is when the majority of the justices agree on theoutcome, but not the reasoning.This settles the case, but does not serve as precedent.Tie Decision–In this case the winner in the lower court prevails.This does not serve asprecedent.Concurring Opinion–When a justice agrees with the outcome of the majority, but notthe reasoning, they will issue a concurring opinion explaining their stand.Dissenting Opinion–Any justice who does not agree with the decision may state theiropinion.

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Chapter 212Contemporary Environment:“I’ll Take You to the U.S. Supreme Court!”This discusses the process necessary to win a review by the U.S. Supreme Court.Jurisdiction of Federal CourtsFederal Question–Federal courts have limited jurisdiction to hear cases involving federalquestionswith no dollar amount limit.Diversity of Citizenship–The federal courts have jurisdiction to hear cases involvingdiversityof citizenship.There must be diversity of state citizenshiporthecasesmust bebetween a citizenand a subject of a foreign country.The amount in controversy must be over $75,000.00.Case 2.1 U.S. SUPREME COURT Diversity of Citizenship:Hertz Corporation v. FriendFacts:Melinda Friend, a California citizen, sued the Hertz Corporation in California state courtseeking damages for Hertz’s alleged violation of California’s wage and hour laws. Hertz filednotice to remove the case to federal court, asserting diversity of citizenship of the parties becausethe company was incorporated in the state of Delaware and had its headquarters in New Jersey.Friend argued that Hertz was a citizen of California as a large number of its operations werebased in the state. The U.S. District Court held that Hertz was a citizen of California and that thecase could not be moved to federal court. The U.S. Court of Appeals affirmed this decision. Hertzappealed to the U.S. Supreme Court.Issue:Is Hertz Corporation a citizen of California?Decision:The U.S. Supreme Court held that due to a diversity of citizenship between Hertz andFriend the case could be moved to federal court.Reason:The court held that as the Hertz Corporation headquarters are located in New Jersey, it isa citizen of that state and there is a diversity of citizenship. Hence, the case can be moved tofederal court.Case QuestionsCritical Legal Thinking:The federal courts have jurisdiction to hear cases involvingdiversity ofcitizenship. There must be diversity of state citizenship or the cases must be between a citizen anda subject of a foreign country. The amount in controversy must be over $75,000.Ethics:It was ethical for Hertz to have tried to avoid the trial in California state court. As anonresident, Hertz probably wanted to prevent state court bias and thus moved the case to thefederal court.Contemporary Business:If a plaintiff brings a diversity of citizenship case in federalcourt,itremainsthere.Iftheplaintiffbringsadiversityofcitizenshipcaseinstate court, it will remainthere unless the defendant removes the case to federalcourt.Jurisdiction of State Courts–State courts hear cases that the federal courts do not have thejurisdiction to hear.Federal courtsmay have concurrent jurisdiction with state courts to hear cases involving diversityof citizenship.Standing to Sue, Jurisdiction and VenueStanding to Sue–The plaintiff must have a stake in the outcome of the lawsuit.In Personam Jurisdiction–In personam jurisdiction over the person is achieved by the plaintifffiling a lawsuit with a court and by serving a summons on the defendant.

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Courtsand Jurisdiction13If personal service is unavailable, notice of the case by mail or publication in newspapers isallowed.Defendants disputing the jurisdiction of a court may make a special appearance to argue theircase, and cannot be served while making this appearance.Long-Arm Statute-A court can obtain jurisdiction over persons and businesses located in anotherstate through use of a long-arm statute, provided the defendant has had some minimum contactwith the state.Landmark U.S. Supreme Court Case:International Shoe Company v. State of WashingtonInternational Shoe had salespeople that sold shoes door-to-door within the state of Washington,and were paid on a commission basis.They had no office in the state. WashingtonStatedetermined that they had failed to pay unemploymenttaxeson International’s employees, andserve notice to the organization on one of their Washington sales representatives as well as bymailing the notice to theheadquarters in St. Louis.International made a special appearance toargue that it had insufficient contacts within the state to warrant payment of the tax.Theunemployment office and appeals board, as well as various courts within the state ruled againstInternational, which appealed to the U.S. Supreme Court.The Supreme Court ruled that International had neither casual nor irregular contacts within thestate, and was, therefore, subject to in personam jurisdiction and service upon one of their agents,based on their “minimum contacts” within the state.The Supreme Court clearly stated that theDue Process Clause permits jurisdiction over a defendant in any state in which the defendant has“certain minimum contacts such that the maintenance of the suit does not offend traditionalnotions of fair play and substantial justice.”In RemJurisdiction-Courts may have jurisdiction over property found within the state, based onin rem (over the thing) jurisdiction.Quasi In RemJurisdiction–Attachment jurisdiction occurs when a plaintiff who has obtained ajudgment attempts to satisfy the judgment by attaching property located in another state.Venue–The court with the jurisdiction that is located closest to where the incident occurred orwhere the parties live should hear the lawsuit.Pretrial publicity may prejudice jurors and may lead to a request for a change of venue in order toget a more impartial jury.Forum shopping is the process of looking for a more favorable courtwithout a valid reason, anditis frowned uponby most courts.Forum-Selection and Choice-of-Law Clauses–Because many business agreements are formedbetween people from different states and different countries, many contracts have clauses thatspecifically address the state’s or country’s laws that will be applied in the case of a dispute, inwhat are known as choice-of-law clauses.Additionally, they will often agree as to which courtwill have jurisdiction over any dispute in forum-selection clauses.Jurisdiction in Cyber SpaceToday, with the advent of the Internet and the ability of persons and businesses to reach millionsof people in other states electronically, particularly through websites, modern issues arise as towhether courts have jurisdiction in cyberspace.Zippo Manufacturing Company v. Zippo DotCom, Inc.is an important case that established a test for determining when a court has jurisdictionover the owner or operator of an interactive, semi-interactive, or passive website.

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Chapter 214Case 2.2 Jurisdictionoveran Internet Seller:Chanel, Inc. v. BanksFacts:Chanel, Inc. filed suit in U.S. District Court in Maryland against defendant Ladawn Banks,a resident of Florida. Chanel alleged that Banks owned and operated the fully interactive websitewww.lovenamebrands.com, through which she sold handbags and wallets bearing counterfeittrademarks identical to the registered Chanel marks.The goods at issue in this case were sold to aresident of Maryland. Chanel sought a default judgment against the defendant, an award ofdamages, and a permanent injunction against the defendant’s further violation of its trademarks.The court first had to address the issue of whether it had personal jurisdiction over the defendant.Issue:Does the court have personal jurisdiction over the defendant?Decision:The U.S. Court of Appeals for Maryland held that defendant Banks was subject topersonal jurisdiction of the court.Reason:Even though Banks is a resident of Florida, she used her website to sell counterfeitgoods to a customer in Maryland. Moreover, her website was highly interactive and provided aplatform for exchange of information, goods, and funds. Thus, the court has personal jurisdictionover Banks in this matter.Case QuestionsCritical Legal Thinking:Zippo Manufacturing Company v. Zippo Dot Com, Inc.is an importantcase that established a test for determining when a court has jurisdiction over the owner oroperator of an interactive, semi-interactive, or passive website.Ethics:Student answers may vary.ButBanks did not act ethically.Contemporary Business:Obtaining personal jurisdiction over a defendant in another state hasalways been difficult for courts. Today, with the advent of the Internet and the ability of personsandbusinessestoreachmillionsofpeopleinotherstateselectronically,particularlythroughwebsites,modernissuesariseastowhethercourtshave jurisdiction in cyberspace.International Law:Judicial System of JapanThere is very little litigation in Japan when compared to the United States. A primary reason forthe difference is cultural because Japan nurtures the attitude that confrontation should be avoided.Other reasons include the high cost that must be borne by plaintiffswho want to file a lawsuit.Even if the plaintiff wins, the damages awarded are low. In the past,a relatively low number oflawyers graduated every year from the few law schools in Japan. But now, due to increasingbusiness and personal disputes, the government is building new law schools and plans to doublethe number of lawyers by the year 2020.V.Case Problems2.1 Standing to Sue: The Court of Appeals of Ohio held that Michigan law applied to the case.The court noted that because the accident took place in Michigan, there is a presumption thatMichigan law applies absent any other jurisdiction having more substantial contacts. PlaintiffBertram, however, contended that Ohio law should apply, because all of the parties wereresidents of Ohio at the time of the accident and all consequences flowing from his injuryoccurred in Ohio. The court disagreed. The court stated, ”Because the snowmobiling accidenttook place in Michigan, the place where the conduct causing Bertram’s injury occurred inMichigan and Michigan has enacted specific legislation involving the risks of snowmobiling, wefind that Michigan law clearly controls in this case. While all parties are residents of and havetheir relationships in the State of Ohio, we are not persuaded by Bertram’s argument that thisissue should control.” The Court of Appeals of Ohio held that the law of the state of Michigan,where the accident occurred, and not the law of the state of Ohio, the state of the residence of theparties, applied. The court applied the Michigan assumption of the risk statute and grantedsummary judgment to the three defendant friends of plaintiff Bertram.Bertram v. Norden, et al.,

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Courtsand Jurisdiction15159 Ohio App.3d 171, 823 N.E.2d 478, Web 2004 Ohio App. Lexis 550 (Court of Appeals ofOhio)2.2FederalQuestion:Yes, the federal courts have the jurisdiction to hear Nutrilab’s case.Federal courts have limited jurisdiction, granted to them by the Constitution and Congress.Part ofthis limited jurisdiction is to hear cases involving federal questions.Federal question cases arecases arising under the U.S. Constitution, treaties, and federal statutes and regulations.Federalcourts have original jurisdiction to hear federal question cases.Nutrilab was disputing the FDA’sapplication of a federal statute to stop their distribution of Starch Blockers. The Starch Blockerscase was therefore one arising under a federal statute, and this gave the federal court originaljurisdiction to hear the case.Any lawsuit, such as this one brought by Nutrilab, that involves afederal question must be brought in a federal court.Nutrilab, Inc. v. Schweiker,713 F.2d 335,Web1983 U.S. App. Lexis 25121 (United States Court of Appeals for the Seventh Circuit).2.3 Forum Selection Clause:Yes, the forum-selection clause contained in the Carnival CruiseLines ticket is enforceable against Mrs. Shute. Including a reasonable forum clause in a formcontract is permissible for several reasons. First, a cruise line has a special interest in limiting thenumber of jurisdictions in which it could potentially be subject to a lawsuit. Because a cruise shiptypically carries passengers from many locales, it is likely that a mishap on a cruise could subjectthe cruise line to litigation in several different jurisdictions. Second, a clause establishing theforum for dispute resolution dispels any confusion as to where lawsuits arising from the contractmust be brought and defended, sparing litigants the time and expense of pretrial motions todetermine the correct forum and conserving judicial resources needed to decide such issues.Finally, passengers who purchase tickets containing a forum-selection clause benefit in reducedfares that reflect the savings that the cruise line enjoys by limiting where it may be sued. Theforum-selection clause in the Carnival Cruise Lines ticket was fair and reasonable and thereforeenforceable against Mrs. Shute. If Mrs. Shute wishes to sue Carnival Cruise Lines, she must do soin a court in the state of Florida, not in a court in the state of Washington.Carnival Cruise Lines,Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622, Web 1991 U.S. Lexis 2221(Supreme Court of the United States)2.4Jurisdiction.In this situation, the case was removed to federal court because of the diversityof citizenship and because the claim was greater than $75,000.Although it is true that bothAllison and Tru-Amp (by virtue of its incorporation)were citizens of the state of Mississippi, themanufacturer of the switchboard and breakers was incorporated in Pennsylvania.This producedthe needed diversity of citizenship to remove the case from the Mississippi court to federal court.Allison v. ITE Imperial Corp.729 F. Supp. 45,Web1990 U.S. Dist. Lexis 607 (United StatesDistrict Court for the Sothern District of Mississippi).VI.Ethics Cases2.5Ethics: No.Based on thede minimistheory, i.e., “the law disregards trifles,” the trial courtwas correct in dismissing the case.Justice King believed that this lawsuit is an absurd waste ofthe resources of the courts and of the taxpayers’ money.The courts are already too heavilyburdened to be used to punish advertisers who use junk mail.The students should question howthe failure to deliver an inexpensive calculator watch to a three year old who cannot tell timecould ever be worth $15M in punitive damages.Harris v. Time, 191 Cal. App.3d 449, 237 Cal.Rptr. 584,Web1987 Cal. App. Lexis 1619 (Court of Appeal of California)

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Chapter 2162.6 Ethics:Yes, the defendants are subject to suit in California.The U.S. Supreme Court heldthat jurisdiction of the California court over the petitioners, who were residents of Florida, wasproper because of their intentional conduct in Florida that was allegedly calculated to cause injuryto plaintiff Shirley Jones in California.The Supreme Court applied the rule ofInternational ShoeCo. v. Washington, 326 U.S. 310, that the Due Process Clause permits jurisdiction over adefendant in any state in which the defendant has “certain minimum contacts such that themaintenance of the suit does not offend traditional notions of fair play and substantial justice.”The Court applied this rule to the case at hand and found that California was the focal point bothof the article that appeared in theNational Enquirerand of the distress suffered.The Court notedthat the magazine has its largest circulation in California, that the defendant knew that plaintiffShirley Jones, a professional entertainer and television personality, lived and worked inCalifornia, and that the article would have its greatest impact in California.The Supreme Courtconcluded that the defendants, as Florida residents, must “reasonably anticipate being hauled intocourt” in California to answer for the truth of the statements made in the article.Thus, theminimum contacts rule and the Due Process Clause were not violated.Calder v. Jones, 465 U.S.783, 104 S. Ct. 1482, 79 L.Ed.2d 804,Web1984 U.S. Lexis 4 (Supreme Court of the UnitedStates).VIII. Terms•Article III of the U.S. Constitution—Itprovides that the federal government’s judicialpower is vested in one “Supreme Court.” This court is the U.S. Supreme Court.•Associate Justices of the U.S. Supreme Court—The eight other justices apart from theChief Justice of the U.S. Supreme Court.•Changeof Venue—In certain circumstances, whenpretrial publicity may prejudicejurors,a change of venue may be requested so thata more impartial jury canbe found.•Chief Justice of the U.S. Supreme Court—Appointed by the president and responsible foradministration of the U.S. Supreme Court.•Choice-of-law clause—A contract provision that designates a certain state’s law orcountry’s law that will be applied in any dispute concerning nonperformance of thecontract.•Circuit—The geographical area served by each U.S. court of appeals.•Concurrent jurisdiction—Jurisdiction shared by two or more courts.•Concurring opinion—An opinion that can be issued byajusticeof the Supreme Courtwho agrees with the outcome of a case but not the reason proffered bytheother justices.•Court of Appeals for the Federal Circuit—A court of appeals in Washington, D.C., thathas special appellate jurisdiction to review the decisions of the Claims Court, the Patentand Trademark Office, and the Court of International Trade.•Delaware Court of Chancery—A special court which decides cases involving corporategovernance, fiduciary duties of corporate officers and directors, mergers and acquisitions,and other business issues.•Dissenting opinion—An opinion which sets forth the reason why a justice of the SupremeCourt does not agree with a decision.•District—The geographical area servedby a U.S. district court.•District of Columbia Circuit—The 12thcircuit court, located in Washington, DC.•Diversityof citizenship—A case between (1) citizens of different states and (2) a citizenof a state and a citizen or subject of a foreign country.•En bancreview—A review that can be requested by a petitioner in the U.S. court ofappeals after a decision is rendered by a three-judge panel.•Exclusivejurisdiction—Jurisdiction held by only one court.

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Courtsand Jurisdiction17•Federalquestioncase—A case arising under the U.S. Constitution, treaties, and federalstatutes and regulations.•Forum shopping—Looking for a favorable court without a valid reason.•Forum-selectionclause—Contract provision that designates a certain court to hear anydispute concerning nonperformance of the contract.•Full Faith and Credit Clause—A clause of the U.S. Constitution under whicha judgmentof a court of one state must be given “full faith and credit” by the courts of another state.•General-jurisdictiontrial court—A court that hears cases of a general nature that are notwithin the jurisdiction of limited-jurisdiction trial courts.Testimony and evidence at trialare recorded and stored for future reference.•Highest state court—The highest court in a state court system; it hears appeals fromintermediate appellate state courts and certain trial courts.•Inpersonamjurisdiction—Jurisdiction over the parties to a lawsuit.•Inremjurisdiction—Jurisdiction to hear a case because of jurisdiction over the propertyof the lawsuit.•Intermediateappellate court—An intermediate court that hears appeals from trial courts.•International Shoe Company v. State of Washington—A landmark U.S. Supreme Courtcase that established the minimum contacts standard.•Limited-jurisdictiontrial court—A court that hears matters of a specialized or limitednature.•Long-armstatute—A statute that extends a state’s jurisdiction to nonresidents who werenot served a summons within the state.•Majority decision—A decision of the U.S. Supreme Court where a majority of thejustices agree as to the outcome and reasoning used to decide a case.•Minimum contact—A nonresident defendant in a civil lawsuit must have had someminimum contactwith the state such that the maintenance of that lawsuit in that statedoes not offend traditional notions of fair play and substantial justice.•Petitionfor certiorari—A petition asking the Supreme Court to hear one’s case.•Plurality decision—A decision of the U.S. Supreme Court wherea majority of thejustices agree as to the outcome of a case but not as to the reasoning for reaching theoutcome.•Quasiin remjurisdiction—Jurisdiction allowed a plaintiff who obtains a judgment in onestate to try to collect the judgment by attaching property of the defendant located inanother state.•Rule of four—The votes of four justices are necessary to grant an appeal and scheduleanoral argument before the Supreme Court.•Serviceof process—A summons is served on the defendant to obtain personaljurisdiction over him or her.•Smallclaims court—A court that hears civil cases involving a small dollar amounts.•Specialfederal courts—Federal courts that hear matters of specialized or limitedjurisdiction.•Standingto sue—The plaintiff must have some stake in the outcome of the lawsuit.•State courts—A separate court system that is present in each state, Washington, DC andeach territory of the United States.It includeslimited-jurisdiction trial courts, general-jurisdictiontrial courts,intermediate appellate courts, and asupreme court.•Statesupreme court—The highest court in a state court system; it hears appeals fromintermediate state courts and certain trail courts.•Supreme Court of the United States—The highest court in the landlocated inWashington, DC.

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Chapter 218•Tie decision—A Supreme court decision where the number of votes cast by the justicesleads to a tie and the decision of the lower court is affirmed. It occurs when all ninejudges are not present.•Unanimous decision—A Supreme court decision whereall the justices voting agree asto the outcome and reasoning used to decide a case.•U.S. Bankruptcy Court—Special federal court thathears cases involving federalbankruptcy laws.•U.S.Courts ofAppeals—The federal court system’s intermediate appellate court.•U.S. Court of Appeals for the Armed Forces—Special federal court thatexercisesappellate jurisdiction over members of the armed services.•U.S. Court of Appeals for Veterans Claims—Special federal court thatexercisesjurisdiction over decisions of the Department of Veterans Affairs.•U.S. Court of Federal Claims—Special federal court thathears cases brought against theUnited States.•U.S. Court of International Trade—Special federal court thathandles cases that involvetariffs and international trade disputes.•U.S.district courts—The federal court system’s trial courts of general jurisdiction.•U.S. Tax Court—Special federal court thathears cases that involve federal tax laws.•Venue—A concept that requires lawsuits to be heard by the court with jurisdiction that isnearest the location in which the incident occurred or where the parties reside.•Writof certiorari—An official notice that the Supreme Court will review one’s case.•Zippo Manufacturing Company v. Zippo Dot Com, Inc.—An important case thatestablished a test for determining when a court has jurisdiction over the owner or operatorof an interactive, semi-interactive, or passive website.

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19“We’re the jury. Dread our fury!”William S. GilbertI.Teacher to Teacher DialogueOnly a small percentage of cases make it to trial.The reality is that most cases settle at somepoint in the process.Settling is safer, quicker, and usually less costly.In my practice, I canremember having several cases settle whilst the jury was out deliberating.Itry to present a more realistic picture of how our system works.I basically start bypresenting statistics on how few controversies actually get to the trial stage and how even fewerof those are actually reported in the National Reporter System.In addition, I spend a fair amountof time reviewing the growing trend towards alternative dispute resolution (ADR) mechanisms.Iillustrate the key identifying features of each method.I use both personal experience examples, aswell as local statutory enactments, to help illustrate the growing trends towards ADR.If none of these out-of-court methods are feasible, proceed to itemize the key steps used in acourt trial.For those of you who are practicing trial attorneys or who have worked in that arenabefore coming to academia, this material gives you an obvious area of focus and furtherelaboration.In any event, I always try to use this opportunity to ask students about their ownpersonal contact with our court system.I do, however, preface these conversations with thecaveatthat they need not volunteer information that might be embarrassing, confidential, orinappropriate.II. Chapter Objectives•Describe the pretrial litigation process.•Describe how a case proceeds through trial.•Describehow a trial court decision is appealed.•Explain the use of arbitration and other nonjudicial methods of alternative disputeresolution.•Describe e-courts and e-dispute resolution.III. Key Question Checklist•Does the dispute or controversy lend itself to out-of-court resolution?•If the dispute or controversy needs to be resolved in a court of law, which court hasjurisdiction?JUDICIAL, ALTERNATIVE,AND E-DISPUTE RESOLUTION3

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Chapter 320•Once jurisdiction is established, was the proper sequence of pretrial steps taken?•Was the trial sequence properly followed?•After the trial is completed, are any appeals from the decision applicable?IV. Text MaterialsOne objective of this chapter is to familiarize studentswith the court trial sequence.Litigation is the process of bringing, maintaining, and defending lawsuits.Because it is oftendifficult and expensive, people turn to various forms of non-judicial dispute resolution, oralternative dispute resolution.Pretrial Litigation ProcessThe pretrial litigation process can be divided into the following major phases:pleadings,discovery,pretrial motions, andsettlement conference.PleadingsThe paperwork filed to initiate and respond to a lawsuit is known as the pleadings.These includethe complaint and summons, the answer, and any cross-complaints and replies, as well asinterventions and consolidation requests.Complaints and Summons–To initiate a lawsuit, the party who is suing (theplaintiff) must fileacomplaintin the proper court. Asummonsis a court order directing the defendant to appear incourt and answer the complaint. The complaint and summons are served on the defendant. This iscalledservice of process.Answer–Thedefendant, the party who is being sued, must file ananswerto the plaintiff’scomplaint.Cross-Complaint and Reply–A defendant who believes that he or she has been injured by theplaintiff can file across-complaintagainst the plaintiff in addition to an answer.The originalplaintiff must file areply(answer) to the cross-complaint.Intervention and Consolidation–If other persons have an interest in a lawsuit, they mayinterveneand become parties to the lawsuit. This is calledintervention.If several plaintiffs havefiled separate lawsuits stemming from the same fact situation against the same defendant, thecourt canconsolidatethe cases into one case if doing so would not cause undue prejudice to theparties.Class Action–A class action occurs when a group of plaintiffs collectively bring a lawsuitagainst a defendant.Case 3.1U.S. SUPREME COURT Class Action Lawsuit:WalmartStores, Inc. v. DukesFacts:The lawsuit alleged that Walmart systematically engaged in sex discrimination, inviolation of Title VII of the Civil Rights Act of 1964. The class would consist of about one and ahalf million plaintiffs, current and former female employees of Walmart. The plaintiffs sought aninjunction and declaratory relief and the award of back pay from Walmart.The U.S. DistrictCourt certified the class to permit the class action lawsuit to proceed. The U.S. Court of Appeals

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Judicial, Alternative, andE-Dispute Resolution21affirmed the certification of the class. Walmart appealed to the U.S. Supreme Court, challengingthe certification of the class.Issue:Is the certification of the class justified by law?Decision:The U.S. Supreme Court held that the case did not qualify for class certification.Reason:Federal Rule of Civil Procedure 23 does not authorize class certification when each classmember would be entitled to an individualized award of monetary damages. Walmart is entitledto individualized determinations of each employee’s eligibility for backpay.Case QuestionsCritical Legal Thinking:Aclassactionoccurswhenagroupofplaintiffscollectivelybringalawsuitagainstadefendant.Usually,oneorseveralnamedplaintiffsfilealawsuitagainstadefendantonbehalfofherself,himself,orthemselvesandothersimilarlysituatedallegedaggrieved parties.The party seeking certification must demonstrate that there are questions of lawor fact common to the class, the claims or defenses of the representative parties are typical of theclaims or defenses of the class, and the representative parties willfairly and adequately protectthe interests of the class.Ethics:There are possibilities that Walmart may face individual sex discrimination lawsuits.Contemporary Business:Attorneys are often more likely to represent a class of plaintiffs, withaggregate monetary claims, than an individual plaintiff with a small claim. Where appropriate,classactionlawsuitsincreasecourtefficiencyandlowerthecostsoflitigation. Class actions areusually disfavored by defendants.Statute of Limitations–This statutory period during which the plaintiff must file his lawsuit orlose the right to sue.DiscoveryDiscovery is a pretrial procedure designed to allow both sides to uncover information throughdepositions, interrogatories, production of documents, and physical or mental examinations.Deposition–Adepositionis oral testimony given by a party or witness prior to trial. The persongiving a deposition is called thedeponent.Interrogatories–Interrogatoriesare written questions submitted by one party to a lawsuit toanother party.Production of Document–One party to a lawsuit may request that the other party produce alldocuments that are relevant to the case prior to trial. This is calledproduction of documents.Physical or Mental Examination–In cases that concern the physical or mental condition of aparty, a court can order the party to submit to certainphysical or mental examinationstodetermine the extent of the alleged injuries.PretrialMotionsPretrial motions like a motion for judgment on the pleadings and a motion for summary judgmentare used to try to dispose of all or part of the lawsuit prior to trial.Motion for Judgment on the Pleadings–Amotion for judgment on the pleadingscan be madeby either party once the pleadings are complete. This motion alleges that if all the facts presented

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Chapter 322in the pleadings are true, the party making the motion would win the lawsuit when the proper lawis applied to these facts.Motion for Summary Judgment–Amotion for summary judgmentasserts that there are nofactual disputes to be decided by the jury and that the judge should apply the relevant law to theundisputed facts and decide the case.Settlement ConferenceMany courts require that the parties appear for a pretrial hearing known as a settlementconference in order to identify relevant issues and attempt settlement.ContemporaryEnvironment:Cost-Benefit Analysis of a LawsuitPlaintiffs should always perform a cost-benefit analysis before filing a lawsuit;taking intoaccount both the tangible and intangible costs of the suit and weighing these against the expectedreturn.Similarly, the defendant should consider all costs because it may prove to be moreexpedient to settle the suit.TrialUnder the Seventh Amendment, parties to a lawsuit are guaranteed the right to a jury trial.If theparties wave their right to a jury trial, the judge sits as the trier of fact.Each party submits a trialbrief to the judge, containing legal support for its side.Jury Selection–Jury selection is made through a process calledvoir dire, where lawyers forboth sides and the sitting judge question prospective jurors to determine potential biases thatwould eliminate them from being seated on the jury.Opening Statements–Opening statements are made by both attorneys to summarize the factualand legal issues of the case.The Plaintiff’s Case–The plaintiffs present their case first and bear the burden of proof.Theywill call witnesses to give testimony, after which the defendant’s attorney will have the right toquestion them.The plaintiff’s attorney then has the chance to ask more questions.The Defendant’s Case–The defendant then has the opportunity to present his case, rebutting theplaintiff’s evidence, proving affirmative defenses, and proving any allegations in his cross-complaint.Rebuttal and Rejoinder–After the defendant’s case, the plaintiff’s attorney may call witnessesto rebut the defendant’s case and introduce other evidence through a rejoinder.Closing Arguments–Following all testimony, each party’s attorney will make their closingarguments.Jury Instructions, Deliberation and Verdict–The closing arguments arefollowed by the Judgereading the jury instructions.The jury retires to deliberate and then returns their verdict.

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Judicial, Alternative, andE-Dispute Resolution23Entry of Judgment–The judge then either enters judgment or issues a judgmentnotwithstanding the verdict, overturning the jury verdict for bias or jury misconduct.The judgemay reduce the monetary award through remitter.AppealIn a civil trial, either party can file a timely appeal once a final judgment is entered.In fact, bothparties may file an appeal.The petitioner or appellant files the appeal against the appellee, orrespondent.The appellant usually files an opening brief, while the appellee files a respondingbrief.Ethics:Frivolous LawsuitThe Chung’s operated three dry cleaning stores in the Washington, D.C. area.They advertisedthat satisfaction was guaranteed and offered same day service.Roy Pearson claimed that theChung’s lost a pair of his pants, and sued for $67 million, alleging a violation of the D.C.consumer protection act, claiming that there was a violation of the customer satisfaction clause,with additional claims formental suffering and inconvenience, rental car fees to drive to anothercleaners, legal fees, and $51 million dollars toward helping other unsatisfied D.C. customers.The court denied the attempt to file a class action suit, stating that the plaintiff was acting in badfaith, and eventually ruled for the Chung’s.Subsequently, Pearson also lost on a motion toreconsider, and eventually lost a reappointment as and administrative law judge, because the suitwas held as evidence of his lack of judicial temperament.Students should be able to easily understand that this is a frivolous lawsuit, particularly when theycompare the amounts sued for against the cost of a pair of trousers.Since the Chung’s weresaddled with $83,000 in fees defending this case, plus all the negative publicity, they probablysuffered a great deal of emotional distress, further evidenced by their selling that store.International Law:British Legal SystemEnglish law is based on common law, that is, law made by judges who decide cases by applyinglegal precedent established in prior cases (stare decisis) and their common sense. The courtsystem of England consists of trial courts that hear criminal and civil cases and appellate courts.The House of Lords, in London, is the supreme court ofappeal.Alternative Dispute ResolutionOne solution to the expense of litigation in terms of both time and money is alternative disputeresolution.Negotiation–A procedure by which the parties to a dispute try to voluntarily settle their dispute.This is usually done through a series of offers and counteroffers. Successful negotiations willculminate in a settlement agreement.Arbitration–An impartial third party hears evidence and testimony and decides the dispute inarbitration.Arbitration clauses have become common in labor union agreements, franchiseagreements, and commercial contracts.LandmarkLaw:Federal Arbitration ActEnacted in 1925, this act provides that commercial agreements calling for arbitration are valid,irrevocable, and enforceable.

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Chapter 324Arbitration Procedure–The arbitration agreement usuallydescribes the procedures that mustbe followed, including the notices that must be given and how the arbitrator will be selected.The arbitrator issues an award after the hearing.The parties usually agree that this will be abinding decision.If a party fails to abide by the decision in binding arbitration, the other partymay file an action in court to enforce the decision.Mediation–Mediation calls for a neutral third party to act as a mediator, but not decision maker.His job is to encourage settlement between the parties.If the two sides choose an interested third party to act as a mediator, he is considered aconciliator.Mini-trial–The attorneys for both sides present their cases to the representatives ofboth oftheparties that have the authority to settle the case.Fact-Finding–The parties hire a neutral third party to investigate the dispute and recommend asettlement.Judicial Referee–The court can appoint a referee to conduct a private trial and render ajudgment.Case 3.2U.S. SUPREME COURT Class Action Waiver:AT&T Mobility LLC v. ConcepcionsFacts:TheConcepcionspurchased AT&T services in California and they were given a freephone as part of AT&T’s promotional campaign. Even though the phone was free, theConcepcions still had to pay sales tax based on it. Theyfiled a complaint against AT&T in U.S.District Court, alleging that AT&T had engaged in false advertising and fraud because the phoneswere not free. Their complaint was consolidated into aclass action against AT&T. The AT&Tcontract contained an arbitration agreement, therefore, the company made a motion to compelarbitration.The Concepcions contested the motion, alleging that the class action waiver wasunconscionableunder California law.AT&T alleged that the Federal Arbitration Act (FAA)preempted theCalifornia state law.The U.S. District Court and the U.S. Court of Appeals agreedwith the Concepcions, finding AT&T’s class action waiver unconscionable.AT&T appealed tothe U.S. Supreme Court.Issue:Does the Federal Arbitration Act (FAA) preempt California’s law that outlaws class actionwaivers?Decision:Yes.Reason:The U.S. Supreme Court held that California’s law prohibiting class action waivers waspreempted by the Federal Arbitration Act (FAA), and therefore the Concepcions must arbitratetheir claim against AT&T individually and not within a class of consumers.Case QuestionsCritical Legal Thinking:When a claimant waives his or her right to bring or join a class actionproceeding.Business Ethics:It is not unethical to include arbitration clauses. But students may argueotherwise.Contemporary Business:The employer would benefit most from class action waiver clauses inarbitration agreements. The switch to class arbitration sacrifices the principaladvantage ofarbitration—itsinformality—and makes the process slower, more costly, and more likely togenerate procedural morass than final judgment.E-Courts and E-Dispute Resolution

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Judicial, Alternative, andE-Dispute Resolution25E-Courts–Due to the Internet and other technologies,electronic courts, ore-courts, also referredto asvirtual courthouses, are substantially being used by courts. Technology allows for theelectronic filing—e-filing—of pleadings, briefs, and other documents related to a lawsuit.Digital Law:E-Dispute ResolutionLegal disputes are now often resolved using electronic dispute resolution, or e-dispute resolution.Many ADR providers offer electronic arbitration, or e-arbitration services. Most of these servicesallow a party to a legal dispute to register the dispute with the service and then notify the otherparty by e-mail of the registration of the dispute.Several websites offer electronic mediation, ore-mediation services.International Law:Solving Tribal Disputes, Mali, West AfricaIn resolving disputes, the Dogan usually do not go to government courts. Instead, a council ofelders from the village hears and decides disputes between members of the village andadministers justice in the local area.V.Case Problems3.1 Summary Judgment:No, the court did not grant Pathmark’s motion for summary judgment.The court held that there were material and genuine issues of fact to be decided by a jury andaffirmed the motion court’s denial of Pathmark’s motion for summary judgment. The court notedthat the plaintiff alleged that she tripped over cases of soda that were stacked on the floor ofdefendant’s supermarket. It appears that at the time of the accident, the supermarket’s shelves, inaccordance with usual practice, were being “packed out” with soda by an employee of eitherdefendant bottling company or defendant soda distributor. The supermarket moved for summaryjudgment, contending that it did not create the alleged dangerous condition and that plaintiff’sdeposition testimony, to the effect that she walked to the soda aisle immediately after entering thestore and did not see any soda on the floor before falling, shows that she cannot establish howlong the soda had been on the floor before she fell. The appellate court found that the motioncourt correctly held that such testimony does not establish, prima facie, the supermarket’s lack ofprior actual or constructive notice of the soda on the floor. The appellate court held that therewere material and genuine issues of fact that must be decided by a jury and upheld the motioncourt’s denial of summary judgment to the defendant.Toote v. Canada Dry Bottling Company ofNew York, Inc. and Pathmark Stores, Inc., 7 A.D.3d 251, 776 N.Y.S.2d 42, Web 2004 N.Y. App.Div. Lexis 6470 (Supreme Court of New York, Appellate Division)3.2Long-Arm Statute:Yes, the Oklahoma state court can use the state’s long-arm statute togain jurisdiction over Magna Verde.A long-arm statute gives a court the ability to gainjurisdiction over an out-of-state business if that business has minimum contacts with the state andthe maintenance of the suit does not offend traditional notions of fair play and substantial justice.The exercise of long-arm jurisdiction is generally permitted over nonresidents who have acontract that affects the state, or who transact other business in the state.Oklahoma’s long-armstatute gave the Oklahoma court jurisdiction over Magna Verde for several reasons.Magna Verdehad entered into a contract that would affect Oklahoma, a contract to stage a fight in that state.Magna Verde had also transacted business in Oklahoma, promoting the O’Grady prizefight.Because of these contacts with the state, the Oklahoma court gained jurisdiction over MagnaVerde through Oklahoma’s long-arm statute.Brooks v. Magna Verde Corp.,619 P.2d 1271,Web1980 Okla. Civ. App. Lexis 118 (Court of appeals of Oklahoma).3.3Physical Examination:The court will only order Schlagenhauf to be examined by anophthalmologist. A court has the power to order the physical and mental examination of a party to

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Chapter 326a case.However, this power is limited to situations where the physical or mental condition that isthe subject of the examination is at issue in the case. The court in this case stated the rule asrequiring that parties making a request for examination must make an affirmative showing thatthe other party’s “mental or physical condition was in controversy and that there was good causefor the examinations requested.”In this case the only issue was Schlagnehauf’s eyesight.Therefore, the court concluded that:Nothing in the pleadings would affect a basis for a belief that Schlagenhauf wassufferingfromamentalorneurologicalillnesswarrantingwide-rangingpsychiatric or neurological examinations. Nor is there anything stated justifyingthe broad internal medicine examination.Therefore, the only examination that the court ordered Schlagenhauf to undergo was oneconducted by an ophthalmologist.Schlagenhauf v. Holder,379 U.S. 104, 85 S.Ct. 234, 13L.Ed.2d 152,Web1964 U.S. Lexis 152 (Supreme Court of the United States).3.4Interrogatories:Yes, Cine is required to answer the questions submitted by Allied Artists’attorneys.These written questions are known as interrogatories. Interrogatories are an importantpart of the legal process known as discovery. The purpose of interrogatories, like other forms ofdiscovery, is to obtain facts about the case from the other parties and witnesses before the trialbegins. Interrogatories are usually directed at parties, not witnesses.A party is required by thecourt to answer the interrogatories in writing within a specified time period.Because the personanswering the interrogatories must sign them under oath, that person must be careful to answerthem truthfully.The interrogatories that were served upon Cine sought to discover informationabout its theater’s box office receipts.This information was crucial in determining potentialdamages in the suit.Because interrogatories are an important part of the discovery process, Cinewas required to answer them in a timely and truthful manner.Cine Forty-Second Street TheatreCorp. v. Allied Artists Pictures Corp.,602 F.2d 1062 (2nd Cir. 1979),Web1979 U.S. App. Lexis13586 (United States Court of Appeals for the Second Circuit).3.5Arbitration:Yes, the arbitration agreement between AMF and Brunswick is valid underFederal law.To promote the arbitration of disputes, Congress has enacted the Federal ArbitrationAct (FAA). The act provides that arbitration agreements involving “commerce” are valid,irrevocable, and enforceable as long as the agreement is not illegal.The arbitration agreementbetween Brunswick and AMF was clearly one involving commerce.Because of this fact, thecourt held that the FAA covered the agreement.The court gave the following reasons forenforcing the agreement, citing the language of the legislation that enacted the FAA:Arbitration agreements are purely matters of contract and the effect of the bill issimply to make the contracting party live up to his agreement.He can no longerrefuse to perform his contract when it becomes disadvantageous to him.Because AMF and Brunswick had signed an arbitration agreement involving commerce, the courtheld that their dispute had to be submitted for arbitration.AMF Incorporated v. Brunswick Corp.,621 F.Supp. 456 (E.D.N.Y. 1985),Web1985 U.S. Dist. Lexis 14205 (United States DistrictCourt for the Eastern District of New York).VI. Ethics Cases3.6Ethics:Yes, the service of process served on Mr. Burnham is good.A court must havepersonal jurisdiction over the defendant in a lawsuit.One method of obtaining personaljurisdiction over a defendant is to serve personal service on the defendant when he is within theterritorial boundaries of the state.In this case, Mrs. Burnham filed a divorce action in Californiaafter she and her husband separated and she moved to California from New Jersey.She then fileda divorce action in California Superior Court, naming her husband, who lived in New Jersey, as

Class Notes for Business Law, 8th Edition - Page 28 preview image

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Judicial, Alternative, andE-Dispute Resolution27the defendant.When Mr. Burnham was in California on business, he decided to visit his childrenwho were living with Mrs. Burnham.There he was served the summons and complaint of Mrs.Burnham’s divorce action.In this case, the U.S. Supreme Court held that jurisdiction might beobtained over a nonresident by personal service in the forum state.The Supreme Court reasonedthat the fact that American courts have announced the rule since the latter part of the 19th centuryprovides a defendant voluntarily in a particular state today with clear notice that he is subject tosuit in that forum.The Court held that service of process was good in this case.Therefore, Mr.Burnham must answer and defend himself in the California divorce action filed by his wife.Burnham v. Superior Court of California, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1900),Web1990 U.S. Lexis 2700 (Supreme Court of the United States).3.7 Ethics:No, Kristi Norgart McBrides’ parents cannot pursue their wrongful death lawsuitagainst The Upjohn Company. This is because the Norgarts’ action for wrongful death againstUpjohn was barred by the one-year statute of limitations. The purpose of the statute of limitationsis to protect defendants from the stale claims of dilatory plaintiffs. It has as a related purpose tostimulate plaintiffs to assert fresh claims against defendants in a diligent fashion. Under the one-year statute of limitations relevant to this case, the plaintiffs must have brought their cause ofaction for wrongful death within one year of accrual—that is, one year from their daughter’sdeath. The Norgarts were too late—exactly five years too late—in bringing their wrongful deathaction against Upjohn. The Upjohn Company was entitled to judgment as a matter of law, basedon the fact that the one-year statute of limitations for a wrongful death action had run out, thusbarring the plaintiff’s lawsuit.This is a case where the law—the statute of limitations—is raised by the defendant toavoid a lawsuit against it. The defendant had a legal right to assert this defense. However, anissue is whether a defendant acts ethically in avoiding a lawsuit rather than facing the merits ofthe lawsuit in a courtroom. In answering that question, it must be considered that the publicpolicy of the statute of limitations is to bring certainty and closure to an unasserted legal claim.Norgart v. The Upjohn Company, 21 Cal.4th 383, 87 Cal.Rptr.2d 453, Web 1999 Cal. Lexis 5308(Supreme Court of California)VIII. Terms•Affirmative defense—May be asserted by a defendant along with an answer to acomplaint.•Alternativedispute resolution (ADR)—Methods of resolving disputes other thanlitigation.•Answer—The defendant’s written response to the plaintiff’s complaint that is filed withthe court and served on the plaintiff.•Appeal—The act of asking an appellate court to overturn a decision after the trial court’sfinal judgment has been entered.•Appellant—The appealing party in an appeal.Also known aspetitioner.•Appellee—The responding party in an appeal.Also known asrespondent.•Arbitrationclause—A clause contained in many international contracts that stipulates thatany dispute between the parties concerning the performance of the contract will besubmitted to an arbitrator or arbitration panel for resolution.•Arbitration—A form ofalternative dispute resolutionin which the parties choose animpartial third party to hear and decide the dispute.•Arbitrator—The neutral party in an arbitration.•Binding arbitration—The type of arbitration where the parties agree to be bound by anarbitrator’s decision and remedy.

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Chapter 328•Burden of proof—Borne by the plaintiff to persuade the trier of fact of the merits of hisor her case.•Class action—A lawsuit where a group of plaintiffs with common claims collectivelybring a lawsuit against a defendant.•Closing argument—An argument made to the jury by each party’s attorney at theconclusion of the presentation of evidence.•Complaint—The document the plaintiff files with the court and serves on the defendantto initiate a lawsuit.•Consolidation—The act of a court to combine two or more separate lawsuits into onelawsuit.•Cost-benefit analysis—Performed by both the plaintiff and defendant to determinewhether to bring or defend a lawsuit in court.•Cross-complaint—Filed by the defendant against the plaintiff to seek damages or someother remedy.•Cross-complainant—The defendant who files a cross-complaint against the plaintiff.•Cross-defendant—The original plaintiff against whom a cross-complaint has been filed.•Defendant—The party who is being sued.•Defendant’s case—Proceeds after theplaintiff’scase. It mustrebut the plaintiff’sevidence, prove any affirmative defenses asserted by the defendant,andprove anyallegations contained in the defendant’s cross-complaint.•Default judgment—Entered against a defendant of he or she fails to answer to acomplaint.•Deponent—Party who given his or her deposition.•Deposition—Oral testimony given by a party or witness prior to trail.The testimony isgiven under oath and is transcribed.•Direct examination—Examination carried out by the plaintiff’s attorney, during theplaintiff’s case, after a witness has been sworn in.•Discovery—A legal process during which both parties engage in various activities todiscover facts of the case from the other party and witnesses prior to trial.•Electronic arbitration—The arbitration of a dispute using online arbitration services.•Electronic court—A court that either mandates or permits the electronic filing ofpleadings, briefs, and other documents related to a lawsuit. Also called avirtualcourthouse.•Electronic dispute resolution—The use of online alternative dispute resolution services toresolve a dispute.•Electronic filing—The online filingof pleadings, briefs, and other documents related to alawsuit.•Electronic mediation—The mediation of a dispute using online mediation services.•Error of law—Error in court records which may lead an appellant court to reverse a lowercourt’s decision.•Fact-finding—The employment of a neutral third party to act as a fact-finder toinvestigate a dispute.•Federal Arbitration Act (FAA)—Enacted by the Congress to promote arbitration ofdisputes.•Final judgment—A court’s decision or remedy.•Finding of fact—An appellate court willnot reverse a finding of fact made by a jury, ormade by a judge if there is no jury, unless such finding is unsupported by the evidence oris contradicted by the evidence.

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Judicial, Alternative, andE-Dispute Resolution29•Impanel—Once the appropriate numberof jurors is selected, they are impaneled to hearthe case and are sworn in.•Interrogatories—Written questions submitted by one party to another party.Thequestions must be answered in writing within a stipulated time.•Intervention—The act of others to join as parties to an existing lawsuit.•Judgment—A decision entered by a judge based on the verdict given by the jury.•Judgment notwithstanding the verdict—The overturning of a verdict by a court due tobias or jury misconduct.•Judicial referee—Appointed by the courtto conduct a private trial and render a judgment.•Jury deliberation—The retiring of the jury to consider the evidence and attempt to reach averdict.•Jury instruction—Instructions that the judge gives to the jury that inform the jurors of thelaw to be applied in the case.•Jury trial—A trial which involves a jury.•Litigation—The process of bringing, maintaining, and defending a lawsuit.•Mediation—A form of ADR in which the parties chose aneutralthird party to act as themediator of the dispute.•Mediator—A neutral third party who assists in mediation.•Mini-trial—A voluntary private proceeding in which lawyers for each side present ashortened version of their case to the representatives of both sides.•Motionfor judgment on the pleadings—Motion that alleges that if all the facts presentedin the pleadings are taken as true, the moving party would win the lawsuit when theproper law is applied to these asserted facts.•Motionfor summary judgment—Motion that asserts that there are no factual disputes tobe decided by the jury; if so, the judge can apply the proper law to the undisputed factsand decide the case without a jury.These motions are supported by affidavits, documents,and deposition testimony.•Negotiation—A procedure whereby the parties to a dispute engage in discussions andbargaining to try to reach a voluntary settlement of their dispute.•Nonbinding arbitration—An arbitration wherethe decision and award of the arbitratorcan be appealed to the courts.•Nonjudicial dispute resolution—The resolution of disputes outside of the court judicialsystem.•Notice of appeal—Notice that must befiled by a party within a prescribed time after acourt judgment is entered.•Opening brief—Filed by the appellant’s attorney; itsets forth legal research and otherinformation to support his or her contentions on appeal.•Physicalor mental examination—A court may order another party to submit to a physicalor mental examination prior to trial.•Plaintiff—The party who files the lawsuit.•Plaintiff’s case—A plaintiff bears theburden of proofto persuade the trier of fact of themerits of his or her case. This is called theplaintiff’s case.•Pleadings—The paperwork that is filed with the court to initiate and respond to a lawsuit.•Pretrialmotion—A motion a party can make to try to dispose of all or part of a lawsuitprior to trial.•Productionof documents—Request by one party to another party to produce alldocuments relevant to the case prior to the trial.•Rebuttal—After the defendant’s attorney has finished calling witnesses, the plaintiff’sattorney can call witnesses and put forth evidence to rebut the defendant’s case.

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Chapter 330•Record—An account of court proceedings.•Re-direct examination—After the defendant’s attorney completes his or her questions,the plaintiff’s attorney can ask questions of the witness.•Rejoinder—The defendant’s attorney can call additional witnesses and introduce otherevidence to counter the rebuttal.•Remittitur—The judge’s decision to reduce the amount of monetary damages awarded bythe jury if he or she finds the jury to have been biased, emotional, or inflamed.•Reply—Filed by the original plaintiff to answer the defendant’s cross-complaint.•Responding brief—May be filed by the appellee to answer the appellant’s contentions.•Sequester—The separation of the jury from family, etc. Can be done during importantcases.•Serviceof process—A summons is served on the defendant to obtain personaljurisdiction over him or her.•Settlement agreement—An agreement that is voluntarily entered into by the parties to adispute that settles the dispute.•Settlement conference—A hearing before a trial in order to facilitate the settlement of acase.•Statuteof limitations—Statute that establishes the time period during which a lawsuitmust be brought; if the lawsuit is not brought within this period, the injured party losesthe right to sue.•Submission agreement—Agreement by parties to submit a dispute to arbitration after thedispute arises.•Summons—A court order directing the defendant to appear in court and answer thecomplaint.•Trialbriefs—Documents submitted by the parties’ attorneys to the judge that containlegal support for their side of the case.•Trierof fact—the jury in a jury trial; the judge where there is not a jury trial.•Uniform Arbitration Act—An act whichpromotes the arbitration of disputes at the statelevel.•Verdict—The decision reached by a jury after deliberation.•Virtual courthouse—A court that either mandates or permits the electronic filing ofpleadings, briefs, and other documents related to a lawsuit.•Voir dire—The process whereby the judge and attorneys ask prospective jurors questionsto determine whether they would be biased in their decisions.•Written memorandum—It is issued by the trial court and sets forth the reasons for thejudgment.

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