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This week after reflecting on the materials covered this semester, write an essay discussing the legal issues that you have identified as part of your PESTLE analysis for your Constructive Action. Be sure to explain why you have identified the legal matters as the external legal trends that you believe you will have to plan for and address as you consider your CA idea and your respective industry. How will you resolve or plan for these issues? Do they raise budget issues or other business or operational concerns that you may have to deal with in your CA?
If you have not taken CA, write up an analysis of the legal issues you believe may arise in the industry and when starting and operating a business like the oneyou are considering as part of your Constructive Action.
Be sure to support your analysis with sources, substantive analysis, and citations. Remember to use APA style formatting.
The red article is the main objective of this assignment.
A. Role and Structure of the Judiciary
§ The judiciary is a collection of
federal and state courts
existing primarily to
adjudicate
disputes and charged with the responsibility of
judicial review.
§
State versus Federal Courts:
State courts adjudicate matters dealing primarily with cases arising from state statutory, common, or state constitutional law; while federal courts are concerned with national laws, federal constitutional issues, and other cases that are outside the purview of state courts.
o
State Courts:
All states have two types of courts: state
trial
courts and state
appellate
courts, in which majority of court cases in the United States are filed.
§
State Trial Courts:
Where parties present their cases and evidence.
· State trial courts have either general authority (organized into geographic districts) or limited authority (confined to a particular type of dispute) to hear a particular type of case.
· For minor matters and cases with a dollar value that is relatively low (typically less than $10,000), states provide local courts.
· Trial courts are often divided into those that hear civil matters and those that hear criminal matters.
§
State Appellate Courts:
Primarily concerned with reviewing the decisions of trial courts.
· Only appellate courts are considered courts of authority that have the right to set precedent.
· States vary as to how state trial court judges are selected (general elections, appointment process, or a combination).
· Assess the lower court rulings by reviewing the lower court’s transcripts and rulings, reading briefs, and sometimes allowing the attorneys to engage in oral argument.
o
Federal Courts:
Consist of U.S. district courts, the U.S. courts of appeal (circuit courts of appeal, and the U.S. Supreme Court).
§
U.S. District Courts:
Serve the same
trial function
as state trial courts, but for issues involving federal matters or matters involving state law when the parties are from different states and meet other jurisdictional requirements.
§
Circuit Court of Appeals:
The thirteen U.S. courts of appeal, each of which
reviews the decisions
of federal district courts in the state or several states within its circuit, are the intermediate appellate courts of precedent in the federal system.
· The circuits are divided geographically
o
U.S. Supreme Court:
The nine justices of the Supreme Court are the ultimate arbiters of federal law that has both original and appellate jurisdiction to finalize a legal decision on any given case.
§ The odds of getting to this level are slim; most of these cases involve conflict among the circuits and relatively complex commercial matters
§ All federal judges are appointed for life and selected via the presidential appointment process.
B. How the Law Develops
§ State trial courts rule on certain points of state law and render a decision that is
binding on the parties, but no one else; only when an
appellate court affirms or reverses
this decision is that point of law applied to all future cases.
§ Figure 3.2: Understanding State and Federal Courts
C. Jurisdiction and Venue
§ Jurisdiction is a court’s
authority
to decide a particular case based on (1)
who
the parties are, and (2) the
subject matter
of the dispute, while venue is a determination of the most
appropriate court
location for litigating a dispute.
§
Jurisdiction and Business Strategy:
The cost-benefit analysis involving jurisdictional restrictions may
affect the managerial decision-making
process when a company or individual contemplates filing a lawsuit.
§
Overview of Jurisdiction:
Jurisdiction’s origins lie in the Constitution (Due Process Clause of Fifth & Fourteenth Amendments), while appellate courts and legislatures have shaped the framework used by modern courts to analyze jurisdiction questions.
o
Two-Part Analysis
:
A court must have both (1) subject matter jurisdiction (court’s authority over the dispute) and (2) personal jurisdiction (court’s authority over the parties).
§
Subject Matter Jurisdiction: Authority over the Dispute:
State statutes give state trial courts general subject matter jurisdiction on virtually all matters involving a state statute, state common law, or a state constitutional issue.
o Federal district courts have
limited subject matter jurisdiction:
issues involving a federal question or issues in which the U.S. is a party in the litigation.
o Federal courts also have subject matter jurisdiction in
diversity of citizenship
cases when the amount in controversy is more than $75,000.
o
Original versus Concurrent Jurisdiction:
Courts that are authorized to initially hear a case have
original jurisdiction. When more than one court may have jurisdiction over the same case this called
concurrent jurisdiction.
o
Choice of Forum:
A party filing a lawsuit must take into account several factors when choosing a forum (court location): costs, judges, juries, appeals, and time.
o
Jurisdiction over Property:
Courts may exercise their jurisdiction based on property located within their jurisdictional boundaries.
In rem jurisdiction
typically allows a court the authority to determine title to an object or real estate.
Quasi in rem jurisdiction
occurs when a court uses its in rem jurisdiction to compel a litigant to appear in court by attaching property that belongs to the litigant.
§
Personal Jurisdiction:
Typically, the focus of a personal jurisdiction analysis is on the conditions of the controversy and the actions of the defendant.
o
In-State Defendants:
Personal jurisdiction is obtained by the courts when the business or individual is served with the complaint, initiating the lawsuit.
o
Out-of-State Defendants:
(1) The court’s jurisdiction must be authorized by a
state long-arm statute; and (2) the court must ensure that exercising jurisdiction over an out-of-state defendant meets the constitutional requirements of
fairness and due process
(determined by examining some level of
minimum contacts
and a finding that the defendant
purposefully availed
themselves).
o
Injurious Effects:
Courts will also consider if whether it was reasonably foreseeable that the defendant’s actions would have an injurious effect on a resident of that state (narrowly applied to cases involving intentional injurious acts).
o
Physical
Presence:
The physical presence of an out-of-state party in a particular state is generally an automatic basis for jurisdiction over the defendant by both that state’s courts and federal trial courts within that state.
o
Voluntary:
A court has personal jurisdiction if the parties agree to litigate in a specific court.
§ Voluntary agreements are usually done through a forum selection clause written in a contract between the parties
§
Venue:
The legal concept that defines the most appropriate location for the trial.
o Typically, state statutes provide that venue in a civil case is where the defendant
resides or is headquartered, while in a criminal case the venue is ordinarily where the crime is committed.
D. Internet and Email Jurisdiction
§
How the Law Develops in Real Time:
Courts tend to diverge over the sufficient minimum contacts with the forum state to establishing personal jurisdiction over an out-of-state defendant. Some have ruled a physical presence in the forum state is not necessary. Other courts have concluded that e-mail communications alone are insufficient to establish personal jurisdiction.
o The
Zippo Standard
is a
sliding scale
approach (based on three points along the scale: passive, interactive, and integral to the business model) for measuring the amount of minimum contacts a party has based on the interactivity of a Web site.
§
Passive
: On one far end of the continuum, a party with a passive Web site that provided information that could be accessed by any Internet user cannot be the sole basis for personal jurisdiction.
§
Interactive
: The middle of the continuum applies when a Web site provides users with some interactive function where users may exchange information, purchase products, download or upload material via the Web site, or other uses that involve the user activity beyond merely viewing the content of the Web site.
§
Integral to Business Model
: The other far end of the scale is a business where the use of the Web site is an integral part of a business model and is used to accomplish commercial transactions with residents in the state of the court’s jurisdiction.
E. International Jurisdiction in the Internet Age
§
Country of Origin Standard:
In international Web transactions, generally the courts in the location of the Web site’s servers will have jurisdiction over any disputes arising out of the use of the Web site.
§
Other Theories of Jurisdiction in Electronic Commerce:
Australia’s highest court issued a decision in 2002 that American-based publisher Dow Jones could be sued in Australia for defamation based on an article that appeared on its Web site, even though Dow Jones has no presence in Australia and its Web site and infrastructure are located in New Jersey.
F. Civil Litigation
§ Civil litigation is the term used to describe a dispute resolution process where the parties and their counsel argue their view of a civil controversy in a
court of law.
G. Dispute Resolution and Business Planning
§ Dispute resolution options are an important part of business planning and strategy that requires a thoughtful
cost-benefit analysis.
H. Stages of Litigation
§ It is important to note that the timing of these stages
may sometimes overlap.
§
Prelawsuit: Demand and Prelitigation Settlement Negotiations:
When a dispute arises, one party will make a demand (informal or formal) of the other party in which the principals lay out the basics of the dispute and demand a certain action; this is followed by an informal prelitigation settlement discussion.
o
Standing:
In order for one party to maintain a lawsuit against another party: (1) injury in fact; and (2) harm that is direct, concrete, and individualized; and (3) has a legal redress (remedy).
o
Statute of Limitations:
Even if standing can be established, the plaintiff must also file the lawsuit within a certain time limit called the
statute of limitations
or the lawsuit will be barred forever. In most cases, this time limit begins when the plaintiff’s injury occurs.
§
Pleadings Stage:
o
Complaint and Summons:
If informal attempts at resolution fail, the plaintiff initiates the lawsuit by filing a
complaint
and arranges for service of the defendant with a
summons.
o
Answer:
Responds to each paragraph of the complaint in an attempt to
narrow the scope
of the issues in controversy (if the defendant fails to answer within the prescribed time, she is said to default and will generally lose the case without the benefit of a trial)
o
Counterclaim:
Filed in addition to the answer when the defendant believes that
the plaintiff has caused her damages
arising out of the very
same set of facts
as articulated in the complaint.
o
Cross-Claim:
Filed when the defendant believes that a
third party
is either partially or fully
liable for the damages
that the plaintiff has suffered and, therefore, should be involved as an indispensable party in the trial.
§
Motions:
A document filed by one party that requests court action in a matter pertaining to the litigation
§
Discovery Stage:
The legal process for the orderly exchange of evidence.
o Unless protected by a legal privilege, all information relative to the case is subject to
methods of discovery.
o
Scope, Timing, and Methods of Discovery:
The rules for exchanging information during discovery are set out in the Rules of Civil Procedure and are accomplished primarily by four methods:
depositions, interrogatories, requests for production, and request for admissions.
§
Depositions:
Method of discovery where a witness gives sworn testimony to provide evidence prior to trial.
§
Interrogatories:
Method of discovery where one party submits written questions to the opposing party attempting to gather evidence prior to trial.
§
Request for Admissions:
A set of statements sent from one litigant to an adversary, for the purpose of determining what facts are in dispute and which facts both parties accept as true.
§
Requests for production:
Requests, usually very wide in scope, aimed at producing specific items to help one party discover some important fact in the case.
Side bar: What about Trade Secrets:
The discovery of trade secrets pits two legitimate and conflicting legal interests against each other: (1) a plaintiff’s interest in full disclosure of all information relevant to her case, and (2) a business’s interest in preserving the confidentiality of its trade secrets.
Discovery does have some important limits such as in the case of legally protected business information.
§
Pretrial Conference:
A meeting between the
attorneys
for the parties and the
judge
in the case several weeks prior to trial, with the objectives of encouraging settlement and resolving any outstanding motions or procedural issues that arose during the pleadings or discovery stages.
§
Trial:
Takes place in front of a
judge as the finder of law
and with a
jury as the finder of fact,
or in some cases, the judge will act as both the finder of fact and the finder of law (bench trial).
o
Jury Selection & Opening Statements:
The trial begins with the process of asking potential jurors questions to reveal any prejudices that may affect their judgment of the facts; once the jury is selected, the attorneys present their theory of the case and what they hope to prove to the jury in opening statements.
o
Testimony and Submission of Evidence:
After the opening statements, the plaintiff’s attorney asks questions in a direct examination of the witnesses on the plaintiff’s list to introduce relevant evidence, and the defendant’s attorney may then conduct cross-examinations of the witnesses (this process is repeated for the defendant’s witnesses).
o
Closing Arguments and Charging the Jury:
Following the testimony and submission of the evidence, the attorneys sum up the case in a closing argument; the judge then proceeds with the charging of the jury by giving them instructions on how reach a factual decision in the case (the standard of proof in a civil case is preponderance of the evidence).
o
Deliberations and Verdict:
After receiving the charge, jurors engage in deliberations until they reach a verdict, if they cannot agree on a verdict, this is known as a hung jury and the litigants must start the process all over again.
o
Posttrial Motions and Appeals:
The losing party can file a posttrial motion to try and convince the original judge that the verdict was flawed, and they may appeal to a higher court that engages in judicial review to decide whether any errors were committed during the trial.
o
Collecting the Judgment:
Although the prevailing party may have received a court judgment stating what she is entitled to recover from the defendant, collecting judgments may sometimes be difficul