PRL 101 slides, Sept. 15

CC-BY-SA

Transcript

1. Court Systems and Alternative Dispute Resolution creative commons licensed (BY-NC-SA) flickr photo by Tulane Publications: https://flic.kr/p/7X6Gy5
2. Brief assignment • Facts: only/all facts necessary to decide issue • Would a change in fact change outcome? • Tornado? Date of divorce? Whom they told? Whom they didn't tell? • Issue? • Whether a couple who claim to be married but keep the relationship secret at work have made sufficient public recognition to create a common-law marriage. • Rationale • Elements of common law marriage • Dispositive element
3. Alabama courts
4. Alabama trial courts general jurisdiction small claims <=$3000; not court of record district <$10,000, juvenile; no jury trials; not court of record circuit >$3000, equitable remedy; felonies & misdemeanors
5. Alabama appellate courts generally questions of law, not fact Circuit (from district or small claims; trial de novo) Civil Appeals Criminal Appeals Alabama Supreme Court
6. U.S. Supreme Court: 9 Justices Appeals Courts: U.S. Circuit Courts 11 numbered circuits + D.C. & Federal 179 judges Trial Courts: U.S District Courts 94 districts in U.S. states and territories, 678 judgeships U.S. Federal Court System
9. SCOTUS • 9 Justices • Certiorari • Rule of 4 • Rule of 5 • Unanimous • Majority • Plurality • Tie
10. Jurisdiction "to speak the law" authority of court to hear a case no jurisdiction, no valid judgment
11. in personam jurisdiction Personal jurisdiction • physical presence • minimum contacts • long-arm statutes
12. ©http://al.com
13. in rem jurisdiction cc licensed ( BY SA ) flickr photo by Ed Schipul:
14. subject-matter jurisdiction general most state courts limited federal courts federal question diversity domicile $75,000 in controversy
15. Exclusive Federal • Admiralty • Antitrust • Bankruptcy • Copyright • Trademark • Patents • Federal crimes • Suits v. US Concurrent • Federal question • Diversity Exclusive State • everything else State & Federal Jurisdiction
16. venue physical location for lawsuit no constitutional requirement for correct venue convenience of parties, court, witnesses 1. district where any defendant resides, or 2. district where events occurred, or 3. district with in personam jurisdiction
17. cc licensed ( BY ND ) flickr photo by bunnicula: http://flickr.com/photos/bunnicula/1342803599/
18. flickr photo by John W. Tuggle https://flic.kr/p/8fM34m shared under a Creative Commons (BY) license
19. cc licensed ( BY NC ND ) flickr photo by jimmywayne: http://flic.kr/p/5XP9L3
20. cc licensed ( BY NC ND ) flickr photo by jimmywayne: http://flic.kr/p/4vcq2f
21. ADR • Alternative Dispute Resolution – Alternative to what? LITIGATION!
22. What’s wrong with litigation?
23. cc licensed ( BY NC ND ) flickr photo by Gilderic Photography:
24. cc licensed ( BY SD ) flickr photo by 401K: http://flic.kr/p/aFAaK6
25. Discovery
26. Alternatives? • Negotiation – Pro: cheap, fast – Con: non-binding, may not agree • Mediation – Pro: less expensive, faster, 3d party may help sides agree – Con: non-binding, expense of 3d party • Arbitration – Pro: binding, faster, less publicity – Con: no appeal, expense of lawyers and arbitrators, potential bias
27. Why is arbitration important? • How many have signed an arbitration agreement? – Signed a contract? – Bought a car? – House? – Credit card? – Cell phone? – “Dispute resolution”
28. Arbitration Statutes • Federal Arbitration Act (FAA) – Makes all arbitration agreements involving interstate commerce valid, irrevocable, and enforceable – Awards can be modified only in case of arbitrator misconduct
29. • Uniform Arbitration Act – Not adopted in Alabama • The following obligations cannot be specifically enforced . . . An agreement to submit a controversy to arbitration; Ala. Code §8-1-41 • every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; Ala. Const. §13 Arbitration Statutes
30. Concerns with arbitration • Fairness • California study: banks won 94% of arbitration cases • Expense • Pay up front • Split cost of arbitrator • Discovery • None
31. Postell v. Merrell Lynch • Estate of Robert Postell filed arbitration claim for mismanagement of brokerage account • FINRA arbitration panel awarded Postell $520,000 • FINRA then sent all 3 arbitrators "black spot" letters
32. AT&T v Concepcion 131 S.Ct. 1740 (2011) • Supreme Court upheld arbitration agreement & class action waiver • Overruled California Supreme Court holding that contract was unconscionable
33. c licensed ( BY NC ND ) flickr photo by Darren Waters: http://flic.kr/p/qVEYb
34. Sony timeline April 26, 2011: Sony gets hacked; 77 million accounts compromised April 27, 2011: AT&T v Concepcion decision April 27, 2011: First class action lawsuits against Sony filed September 2011: Sony changes PlayStation network TOS to require class action waiver