The Constitution and Dispute Resolution

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The Constitution and Dispute Resolution
Recommended Chapter Three review problems
beginning on page 136 (Practice test)2, 3, 4, 5,
8, 9, 11 Recommended Chapter Five review problems
beginning on page 136 (Practice test) 1, 3, 10,
and 11

• OBE 118, Section10, Fall, 2004
• Professor McKinsey

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Key Provisions of U.S. Constitution
Those giving the Federal Government Power
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The Commerce Clause
The Congress shall have the Powerto regulate
Commerceamong the several states
Article 1, Section 8

• Important because it gives federal to business
  because it gives power to the federal government
  while limiting power of state government.
• Textbook is misleading here.
• Affirmative power- when congress
  
• The limit on federal power under the Commerce
  Clause? -
• Activity regulated must have a
  on interstate commerce.
• Dormant aspect of Commerce Clause covered later
  in this lecture.

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The Supremacy Clause
This Constitution, and the Laws of the United
States shall be the supreme Law of the Land
Article 6, Section 2

• Federal power wins over state power.

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Key Provisions of U.S. Constitution
Those giving the Federal Government Power

• Commerce Clause
• Supremacy Clause
• Enumerated Powers of the Branches
• Judicial Review text is misleading, it is not
  controversial, it is completely accepted.
• Judicial Review of the Constitution was
  established by .

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• Case Marbury v.Madison, 1803
• William Marbury was commissioned as Justice of
  the Peace by exiting President John Adams
• New president Thomas Jefferson did not deliver
  the commission
• Marbury sued the Secretary of State, James Madison

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Lessons from Marbury v Madison?
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Key Provisions of U.S. Constitution
Those giving the State Governments Power

• 10th Amendment
• The powers not delegated to the United States by
  the Constitution, nor prohibited by it to the
  States are reserved to the States respectively,
  or to the people.
• Means If the federal government is not given a
  power the States have the power unless the
  Constitution forbids them to have that power.

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Key Provisions of U.S. Constitution
Those Restricting Governmental Power

• Due Process Clauses
• Takings Clause
• Freedom of Speech
• Contracts Clause
• Dormant aspect of Commerce Clause restricting
  State power
• Equal Protection Clause

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Due Process

• Due Process Clauses
• No deprivation of life liberty or property unless
  treated fairly
• Depending on the forum, you have rights such as
  having a neutral decision maker, presenting your
  story, questioning the evidence against you, etc.
  

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Takings Clause

• 5th Amendment nor shall private property be
  taken for public use, without just compensation
• Full takings
• Part of land takings (e.g. road easements)
• A particular right?
• Temporary?
• Inverse condemnation versus eminent domain

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Dormant Commerce Clause

• States cannot discriminate against interstate
  commerce.
• No economic protectionism at state level
• When federal law occupies the field then state
  law is invalid as well, even if it could survive
  a discrimination test.
• Camps New Found/Owatonna v. Town of Harrison
• Textual, on-its-face, discrimination against
  out-of-staters, its unconstitutional
• What about unintended discrimination against
  out-of-staters, by a state statute?

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Equal Protection Clause

• 14th Amendment No State shalldeny any person
  within its jurisdiction the equal protection of
  the laws.
• When government classifies people, it can exceed
  its authority
• Racial, ethnic etc unconstitutional most of the
  time (what about affirmative action)
• Gender based sometimes
• Economic usually okay

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Freedom of Speech

• 1st Amendment Congress shall make no
  lawabridging the freedom of speech
• Government cannot prohibit political speech,
  expression of ideas, opinions etc.
• Government can regulate time, place, manner
• Sometimes acts can be speech
• Obscenity and commercial speech are less protected

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So you have a dispute.
Do I sue?
What are my goals in resolving this dispute?
ADR
Trial
Lawsuit, attorneys fees, courtroom, judge, jury,
public, etc.
Agreement between parties, resolution, quick,
less expensive, private, etc.
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Using Courts to Resolve Disputes

• What court? (Jurisdiction)

• How does the court system work? (Civil
  Procedure)

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Federal versus State Jurisdiction
Exclusive Federal Jurisdiction
Federal crimes and certain federal matters such
as antitrust, patent, bankruptcy
Concurrent Federal Jurisdiction
Diversity of citizenship cases
Federal matters not exclusive
Exclusive State Jurisdiction
All matters not covered above (State crimes,
non-diversity civil suits based on state law,
etc.)
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Court Jurisdiction
Concurrent Federal Jurisdiction
Exclusive Federal Jurisdiction
Exclusive State Jurisdiction
Federal Court
State 1 Court
State 2Court
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What Type of Court?

• Courts of Limited versus General Jurisdiction
• Trial versus Appellate courts

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Trials

• Text is great in this area.
• Pretrial Events
• Trial Events
• Post Trial Events

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Appeals

• Not always mandatory that court must take it

• Scope of review

• Errors of law- yes

• Errors of fact- no

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Alternative Dispute Resolution

• Solving a dispute by reaching mutual agreement is
  always better than relying upon civil court
  system.
• Negotiation
• Mediation
• Arbitration
• Arbitration clauses

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Arbitration Clauses

• Waiving right to Jury Trial
• Waiving right to sue or use court system
• Increasingly being allowed by courts
• To be effective against individual or consumer
  they usually must be conspicuous and directly
  acknowledged by individual