Term Paper on "Matching Terms Writ of Mandamus K. Arbitration"

Term Paper 5 pages (1871 words) Sources: 0

[EXCERPT] . . . .

Matching Terms

Writ of Mandamus K. Arbitration

Writ of Certiorari L.

Private Enforcement

Power of Eminent Domain

M. Due Process Clause

Compensatory Damages N. Rational basis test.

Punitive Damages O. Power of Judicial Review

F.

State Police Power

Mediation

G. Common Law Q. Precedent

H. Strict scrutiny. R. Personal Jurisdiction.

Original Jurisdiction S. Minimum Contacts

Equal Protection Clause T. Diversity Jurisdiction

_L __ No remedy unless individual or organization initiates legal action.

_D__ Awarded to make the victim whole.

_M Fundamental fairness.

_I__ Court where the trial takes place.

_R__ Power of court to compel presence of defendant.

6. _K__ Voluntary, private, adversarial process.

7. _O_ Power of court to review constitutionality of a government action.

8. _E_ Purpose: Specific and general deterrence.

9. _P__ Voluntary, private, non-adversarial process.

10. _H__ State action constitutional only if necessary to achieve compelling state interest

11. _C_ Power of government to take private property.

12. _A__ Court order to do one's non-discretionary legal duty.

13. _T__ State law claims decided by federal courts.

14. _N__ Constitutional requirement that government not act in an arbitrary way.

15. _ B _ Appellate court may accept or deny a case for review at its discretion.

16. _G_ Legal rights and remedies created by courts in absence of applicable constitution, statute, or agency regulation.

17. _Q__ Courts must follow law as decided by higher courts in their jurisdiction.

18. _F__ Inherent power of government to promote and protect the public health, safety, welfare and morality.

19. _J__ Race is a suspect classification; gender, a quasi-suspect classification.

20. _S__ Constitutional pre-requisite for assertion of long-arm jurisdiction.

II. ACCURATE or INACCURATE?

Direction: For each of the following, indicate whether it is an accurate (T) or inaccurate (F) statement of the law. If you wish, you may provide a typed explanation for any answer.

1._F__ Defending individual constitutional rights is a matter of private enforcement.

True only in that individuals must initiate complaint.)

2. _F__ as a general rule, under the Commerce Clause, Congress has the power to regulate any commercial activity or commodity, no matter how local, because, when aggregated, it can be shown to have a substantial affect on interstate commerce.

3. _F_Since a peremptory challenge is not "for cause" and need not be explained, attorneys can strike a potential juror from serving for any reason or no reason, including that juror's race or gender.

4. __T_ Employees may be required to pay reasonable administration costs of arbitration even when the agreement with the employee gives the employer the sole option to compel arbitration.

5. _F__Assuming GM is incorporated in the state of NY and its principal place of business is in Michigan, residents of these two states can not sue GM for product liability in a federal court even though residents outside these two states can.

6. _*T_Supreme court decisions on constitutional issues are virtually final, while those on statutory issues are not in the sense that subsequent legislation can override them. *(T if "override" means "make inapplicable"; F. If it means "reverse" or "overturn" SC decisions.)

7. _F__Since a web site is available to persons everywhere, courts in every state have personal jurisdiction over the web site owner.

8. _T__Since you are free to contract away your right to resolve legal disputes in a court, business or an employer may legally require you to do so as a condition of doing business or being employed.

9. _T__ No court, federal or state, can decide a case against an out-of-forum defendant unless the defendant has created minimum contacts with that forum by its own actions sufficient to satisfy the fundamental fairness required by the Due Process Clause.

10. _T_ the 21st Amendment to the U.S. Constitution gives each state the power to decide for itself whether and how intoxicating alcoholic beverages shall be sold and distributed within the state, including forbidding all direct sales to costumers other than through licensed local retailers.

III. FACT SITUATIONS

Mary Darling, the purchasing agent for LOV, Inc., a business located in Baltimore and incorporated in Maryland, drove the company van from Baltimore to Philadelphia in order to pick up supplies needed by LOV, Inc., from its regular Philadelphia supplier. She was in a hurry and she ran a red light in Philadelphia at 30 miles over the speed limit. She hit David Smith's car. David's car was totaled and he was severely injured. He is suing Mary and LOV for compensatory and punitive damages. David was on his way home to Dover, Delaware, to celebrate his 5th wedding anniversary. David lives and works in Dover. David and his wife are claiming $10 million in compensatory damages and unspecified punitive damages.

Which courts can decide this case? Why? Which state's substantive law will these courts apply in this case? Why? (5)

Under diversity jurisdiction, David must file his tort claim either in Federal court in the Third or Fourth Circuit, because proper jurisdiction between parties located in different states is either: (1) in the state where the accident occurred, or (2) in the state where the defendant's business is located. The Third Circuit court must apply the substantive laws of Pennsylvania and the Fourth Circuit must apply the laws of Maryland.

The Maryland General Assembly recently enacted a statute allowing Maryland vineyards to obtain a limited distributor license that permits selling directly to restaurants, hotels, and retail stores. Similarly situated vineyards in Pa., Va., West Va., and Del. can sell only to Md. wholesalers.

How can they get the same "limited distributor license?" What is your reason for your conclusion? Your legal authority? (5)

Under Granholm v Heald, Maryland may not impose greater restrictions on out-of-state vineyards and wineries and they are entitled to apply for the same license by meeting the identical objective requirements to qualify for the license as in-state vineyards.

IV. SHORT QUESTIONS

Direction: Be concise.

1. What is the power of judicial review? Why is it so important? How does

Marbury v. Madison specifically illustrate it? (5)

The power of the SCOTUS over all matters arising under the U.S. Constitution.

It is important because the Supremacy Clause establishes that the Constitution and acts of Congress (in furtherance thereof) are the supreme law of the land. Marbury establishes that the power of the SCOTUS includes the power to invalidate acts of Congress that violate the Constitution.

2. How is it possible that someone could be found innocent of a criminal charge but civilly liable under the same facts? (4)

Because the civil standard of proof is much lower than the criminal standard of proof.

3. Articulate the speech rights of corporations in the United States and identify legal authority for your assertions. (6)

In First National Bank v. Bellotti, the SCOTUS invalidated Massachusetts state law criminalizing corporate use of corporate funds to promote political agenda as a violation of corporations right to Free Speech under the 1st Amendment..

4. Contrast compensatory and punitive damages. State the constitutional limitations on the amount of punitive damages that can be awarded. Cite case authority. (9)

Compensatory damages are intended to compensate for actual damage and make wronged parties whole; punitive damages are intended to punish specific wrongful conduct and deter it in the future. Campbell v. State Farm Insurance Company established a cap of single-digit multiples (i.e. less than 10x) the actual damages except in cases where egregious conduct results in limited economic harm.

5. In awarding contracts, governments frequently have minority and gender set-aside requirements. If challenged by a business which was the qualified low bidder but did not receive the contract because of a minority ownership preference, what constitutional provision will be used and what standard must the court apply to resolve the issue? Legal authority? (4)

Equal Protection will be the constitutional provision and Adarand v. Pina: will be the authority because it established that any type of racial classification used by any government agency triggers strict scrutiny. The agency will have to demonstrate that other, "race-neutral" alternatives would not sufficiently address the issue.

6. Increasingly, companies are including pre-dispute, arbitration clauses in their contracts with employees, customers, and suppliers. What is the legal basis for their enforceability? What grounds are used to attack their validity? (7)

Under Gilmer, the SCOTUS decided that such clauses are enforceable provided they: (1) provide a neutral arbitrator, (2) provide for more than minimal discovery, (3) issue a written award, (3) provide similar remedies as courts of law, and (5) employers are not responsible for costs beyond comparable administrative costs and filing fees of courts of law.

7. When would one choose to mediate or arbitrate or litigate? (6)

Mediate when non-adversarial parties seek objective resolution;

Arbitrate when adversarial parties wish to limit their legal fees and cost of discovery and the amount at issue does not justify those expenses; and Litigate when the costs of litigation are insignificant in relation to the amount of the claim and/or where one has very good reason to be sure of the strengths of… READ MORE

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