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
Key Provisions of U.S. Constitution
Those giving the Federal Government Power:
The Commerce Clause
“The Congress shall have the Power…to regulate
Commerce…among 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
commerce.
on interstate
• Dormant aspect of Commerce Clause covered later in this
lecture.
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.
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
.
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
Lessons from Marbury v Madison?
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.
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
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.
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”
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 outof-staters, by a state statute?
Equal Protection Clause
• 14th Amendment: “ No State shall…deny
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
Freedom of Speech
• 1st Amendment: “ Congress shall make no
law…abridging 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
So you have a dispute….
Do I sue?
What are my goals
in resolving this
dispute?
ADR
Agreement between
parties, resolution,
quick, less expensive,
private, etc.
Trial
Lawsuit, attorney’s
fees, courtroom, judge,
jury, public, etc.
Using Courts to Resolve Disputes
• What court? (Jurisdiction)
• How does the court system work? (Civil
Procedure)
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, nondiversity civil suits based on state law, etc.)
Court Jurisdiction
Concurrent Federal
Jurisdiction
Exclusive
Federal
Jurisdiction
Federal Court
Exclusive
State
Jurisdiction
State #1 Court
State #2Court
What Type of Court?
• Courts of Limited versus General Jurisdiction
• Trial versus Appellate courts
Trials
Text is great in this area.
Pretrial Events
Trial Events
Post Trial Events
Appeals
• Not always mandatory that court must take it
• Scope of review
• Errors of law- yes
• Errors of fact- no*
Alternative Dispute Resolution
• Solving a dispute by reaching mutual
agreement is always better than relying
upon civil court system.
• Negotiation
• Mediation
• Arbitration
• Arbitration clauses
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