Courts and Alternative Dispute Resolution

The Judiciary’s Role In American Government
Judicial Review was established by the U.S. Supreme Court in Marbury v. Madison (1803) where Chief Justice Marshall wrote:
“It is emphatically the province and duty of the judiciary to say what the law is….”
Basic Judicial Requirements
Jurisdiction: “Juris” (law) “diction” (to speak) is the power of a court to hear a dispute and to “speak the law” into a controversy and render a verdict that is legally binding on the parties to the dispute. 
Jurisdiction over Persons
Power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate.
Courts use long-arm statutes for non-resident parties based on “minimum contacts” with state.
Case 2.1: Cole v. Mileti (1998).
Jurisdiction over Property
Also called “in rem” jurisdiction.
Power to decide issues relating to property, whether the property is real, personal, tangible, or intangible.
A court generally has in rem jurisdiction over any property situated within its geographical borders.
Subject Matter Jurisdiction
This is a limitation on the types of cases a court can hear, usually determined by federal or state statutes.
For example, bankruptcy, family or criminal cases.
General (unlimited) jurisdiction.
Limited jurisdiction.
Original and Appellate Jurisdiction
Courts of original jurisdiction is where the case started (trial).
Courts of appellate jurisdiction have the power to hear an appeal from another court.
Federal Court Jurisdiction
“Federal Question” cases in which the rights or obligations of a party are created or defined by some federal law.
“Diversity” cases where:
The parties are not from the same state, and,
The amount in controversy is greater than $75,000.
Exclusive vs. Concurrent Jurisdiction
Exclusive: only one court (state or federal) has the power (jurisdiction) to hear the case.
Concurrent: more than one court can hear the case.
Venue is concerned with the most appropriate location for the trial.
Generally, proper venue is whether the injury occurred.
In order to bring a lawsuit, a party must have “standing” to sue.
Standing is sufficient “stake” in the controversy; party must have suffered a legal injury.
Case 2.3:  High Plains Wireless LP vs. FCC (2002)
Trial Courts
Courts of record-court reporters.
Opening and closing arguments.
Juries are selected.
Evidence, such as witness testimony, physical objects, documents, and pictures, is introduced.
Witnesses are examined and cross-examined.
Verdicts and Judgments are rendered.
Appellate Courts
Middle level of the court systems.
Review proceedings conducted in the trial court to determine whether the trial was according to the procedural and substantive rules of law.
Generally, appellate courts will consider questions of law, but not questions of fact.
Supreme Courts
Also known as courts of last resort.
The two most fundamental ways to have your case heard in a supreme court are:
Appeals of Right.
By Writ of Certiorari.
Alternative Dispute Resolution
Trials are a means of dispute resolution that are very expensive and sometimes take many months to resolve.
There are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.
ADR describes any procedure or device for resolving disputes other than the traditional judicial process.
Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets.
Most common:negotiation, mediation, arbitration.
Less than 10% of cases reach trial.
Negotiation is informal discussion of the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case.
Successful negotiation involves thorough preparation, from a position of strength.
Assisted Negotiation
Mini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3rdparty (e.g., a retired judge) who renders a non-binding “verdict.”  This facilitates further discussion and settlement.
Expert evaluations.
Conciliation: 3rdparty assists in reconciling differences.
Involves a neutral 3rdparty (mediator).
Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine “common ground.”
Advantages: few rules, customize process, parties control results (win-win).
Disadvantages: mediator fees, no sanctions or deadlines.
Many labor contracts have binding arbitration clauses.
Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official. 
Recall the 1997 UPS strike when US. Labor Secretary Alexis Herman helped arbitrate the strike.
Arbitration Disadvantages
Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence.
Arbitrators do not have to issue written opinions.
Generally, no discovery available.
Arbitration Process
Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award.
Courts are not involved in arbitration unless an arbitration clause in a contract needs enforcement.
Providers of ADR Services
Non-profit organizations:
American Arbitration Association.
Better Business Bureau.
Online Dispute Resolution
Also called ODR
Uses the Internet to resolve disputes.
Still in its infancy but is gaining momentum.
International DisputeResolution
Forum Selection and Choice-of-Law clauses in contracts govern the transaction.
Arbitration clauses are generally incorporated into international contracts.


Introduction to Law andLegal Reasoning

Schools of Jurisprudential Thought

  • Natural Law view.
  • Positivist view.
  • Historical view.
  • Legal Realism view.

Natural Law School

  • Assumes that law, rights and ethics are based on universal moral principles inherent in nature discoverable through the human reason.
  • The Declaration assumes natural law, or what Jefferson called “the Laws of Nature.
  • The oldest view of jurisprudence dating back to Aristotle.

Natural Law By Rev. Martin Luther King Jr.

Letter from the Birmingham Jail April 16, 1963.
There are two types of laws: just and unjust laws.

  • A just law is a man-made code that squares with the moral law .
  • An unjust law is a human law that is not rooted in eternal and natural law.
  • An unjust law is a code that is out of harmony with the moral law.

The Positivist School

  • Law is the supreme will of the State that applies only to the citizens of that nation at that time.
  • Law, and therefore rights and ethics, are not universal.
  • The morality of a law, or whether the law is “bad or good,” is irrelevant

The Historical School

  • Emphasizes the evolutionary process of law
  • Concentrates on the origins of the legal system
  • Law derives its legitimacy and authority from standards that have withstood the test of time.
  • Follows decisions of earlier cases

Legal Realism

Jurisprudence that holds law is not simply a result of the written law, but a product of the views of judicial decision makers, as well as social, economic, and contextual influences.

Sources of American Law

  • U.S and State Constitutions.
  • Statutory Law—federal, state and local.
  • Administrative regulations and decisions.
  • Case Law and Common Law Doctrines.

The Common Law Tradition

American law is based largely on English Common Law which was based largely on traditions, social customs, rules, and cases developed over hundreds of years.
At common law, there were two separate court systems with two different types of remedies:


  • Also called “king’s courts” where judges were appointed by the king.
  • Remedies limited to those provided at law, i.e., land, chattel, money.
  • Judges resolved disputes by application of rules of law to the facts of the case before the court.

Courts of Equity

  • Court of equity called courts of chancery in Delaware
  • Equitable relief was sometimes available in instances where a strict application of the law to the facts of the case compelled a result that was legal but unjust.
  • Equitable Maxims.

Legal and Equitable Remedies Today

Today federal and state courts of general jurisdiction have consolidated remedies at law and remedies at equity.
Generally, the same court can fashion a remedy that includes both damages and equitable or injunctive relief.

Stare Decisis

  • Stare decisis is a Latin phrase meaning “to stand on decided cases.”
  • Stare decisis Makes the law stable and predictable.
  • Stare decisis Increases judicial efficiency by relieving courts of having to reinvent legal principles for each case brought before them.

Stare Decisis and Precedent

  • Stare decisis is “judge made law” based on precedent.
  • Precedents are judicial decisions that give rise to legal principles that can be applied in future cases based upon similar facts.
  • Precedents and other forms of positive law, such as statutes, constitutions, and regulations, are referred to as binding authority and must be followed.

Cases of “First Impression”

In cases of “first impression” where there is no precedent, the court may refer to positive law, public policy, and widely held social values in order to craft the best new precedent.

Stare Decisis and Legal Reasoning

  • Method used by judges to reach a decision.
  • Many courts and attorneys frame decisions and briefs using the IRAC format
  • Issue (What is the question to be resolved?)
  • Rule (What law governs this matter?)
  • Application (Apply the law to the facts)
  • Conclusion (Decision or Verdict)

Types of Legal Reasoning

Deductive Reasoning

Makes use of syllogism, a type of logical relationship involving a major premise and a minor premise.

Linear Reasoning

Proceeds from point to point, with the final point being the conclusion.

Reasoning by Analogy

Analysis that compares facts of present case with facts of similar previously-decided cases.

The Common Law Today

Common law today governs transactions not covered by:

  • statutory law.
  • Restatements of the Law
  • American Law Institute
  • Summarize the common law of most states

Classifications of Law

Every type of law will be either:

  • Civil or Criminal, and either
  • Substantive or Procedural, and either
  • Public or Private.
  • Cyber law is law applied to internet transactions.

Civil Law vs Criminal Law

  • Civil law defines the rights between individuals or individuals and governments.
  • Criminal law defines an individual’s obligations to society as a whole.

Substantive vs. Procedural

  • Substantive law defines or creates the rights and obligations of persons and governments.
  • Procedural law provides the steps one must follow in order to avail oneself of one’s legal rights or enforce another’s legal obligations.