• What is judicial review? How and when
was the power of judicial review
established?
• Before a court can hear a case, it must
have jurisdiction. Over what must it
have jurisdiction? How are the courts
applying traditional jurisdictional
concepts to cases involving Internet
transactions? 
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• What is the difference between a trial
court and an appellate court?
• What is discovery, and how does
electronic discovery differ from
traditional discovery? What is judicial
review? basic structure of the United
States government? 
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• What constitutional clause gives the
federal government the power to
regulate commercial activities among
the various states? 
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• Judicial Review was established by
the U.S. Supreme Court in Marbury
v. Madison (1803) where Chief
Justice Marshall wrote:
– “It is emphatically the province and duty of
the judiciary to say what the law is….”
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• Jurisdiction: “Juris” (law) “diction”
(to speak) is the power of a court to
hear a dispute and to “speak the law”
into a controversy and render a
verdict that is legally binding on the
parties to the dispute.
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• Jurisdiction (cont’d).
–Jurisdiction Over Persons or Property.
The power of a court to compel the
presence of the parties (including
corporations) to a dispute to appear
before the court and litigate.
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• Jurisdiction (cont’d).
–Jurisdiction Over Persons or Property
(cont’d).
• In Rem: power to decide issues relating to
real or personal property. A court
generally has in rem jurisdiction over any
property situated within its geographical
borders.
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• Jurisdiction (cont’d).
–Jurisdiction Over Persons or Property
(cont’d).
• Long-Arm Statutes: courts use long-arm
statutes for non-resident parties based
on “minimum contacts” with state.
Means defendant had some connection
with forum state.
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• Jurisdiction (cont’d).
–Jurisdiction Over Persons or Property
(cont’d).
• Corporate Contacts: does the firm
actively do business or advertise within
the state? Did it place its goods or
services into the “stream of commerce”
in that state?
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• Jurisdiction (cont’d).
–Jurisdiction Over Subject Matter.
• General and Limited Jurisdiction.
–Statutory limitation on the types of cases a
court can hear (e.g., probate and
bankruptcy).
–Can also be limited to amount in
controversy (amount of monetary damages).
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• Jurisdiction (cont’d).
–Original and Appellate Jurisdiction.
• Courts of original jurisdiction is where
the case started (trial).
• Courts of appellate jurisdiction have the
power to hear an appeal from another
court.
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• Jurisdiction (cont’d).
–Jurisdiction of the Federal Courts.
• Federal Questions: rights or obligations of
a party are created or defined by some
federal law.
• Diversity of Citizenship: parties are not
from same state, and amount in
controversy must exceed $75,000.
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• Jurisdiction (cont’d).
–Exclusive versus Concurrent
Jurisdiction.
• Exclusive: only one court (state or
federal) has the power (jurisdiction) to
hear the case.
• Concurrent: more than one court can
hear the case.
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• Jurisdiction in Cyberspace.
–“Sliding Scale” Standard to determine
whether to exercise jurisdiction.
Passive
Website
Some
Interaction
No
Yes
Substantial
Business
Interaction
–International Jurisdiction Issues.
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• Venue.
–Venue is concerned with the most
appropriate location for the trial.
–Generally, proper venue is whether the
injury occurred.
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• Standing to Sue.
–A party must have suffered a legal
injury and have a sufficient “stake” in
the controversy.
–CASE 3.3 Oregon v. Legal Services
Corp. (2009). Was there a “concrete”
injury to the state?
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• State Court Systems.
–Trials Courts.
• “Courts of record”- have court
reporters.
• Small Claims Courts are informal,
inferior courts with limited amounts
in controversy (usually $5,000).
• Opening and closing arguments.
• Juries are selected.
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• State Court Systems (cont’d).
–Appellate or Reviewing, Courts.
• Review trial court proceedings to
determine whether the trial complied
with procedural and substantive rules of
law.
• Generally, appellate courts will consider
questions of law, but not questions of
fact.
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• State Court Systems (cont’d).
–Highest State Courts.
• Usually, but not always, called a ‘supreme
court.’
• Decisions of a state’s highest court on
matters of state law are final. The U.S.
Supreme Court can overrule a state
supreme court when there are federal
laws involved.
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• The Federal Court System.
–Basically a three-tiered system:
• U.S. District Courts (trial courts of general
jurisdiction).
• U.S. Courts of Appeal. 
• The U.S. Supreme Court. 
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• The Federal Court System (cont’d).
–U.S. District Courts: courts of original
jurisdiction based on federal statutes.
–U.S. Courts of Appeal: there are 13
Courts of Appeal representing district
courts throughout the country. 
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• U.S. Supreme Court.
– Highest Court in the
Land.
– Final arbiter of U.S.
Constitution.
– Petition for Court to
hear case by Writ of
Certiorari.
www.supremecourt.gov
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Kevin
Anderson
Lisa
Marconi
Anderson his
Marconi in
Beverly Hills,
California
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• Pleadings.
–Plaintiff’s
Complaint.
• Court acquires
jurisdiction over
subject matter and
Plaintiff.
• Facts: What
happened.
• Prayer: Court relief.
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• Pleadings (cont’d).
–Defendant’s Answer: response to the
allegations stated in the Plaintiff’s
Complaint. Defendant must specifically
admit or deny each allegation in the
complaint.
• May file counterclaim against plaintiff.
• May file affirmative defense.
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• Pleadings (cont’d).
–Motion to Dismiss: either party
(normally defendant) can ask the court
to dismiss the case if the pleadings fail
to show a legal claim.
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• Pretrial Motions.
–Motion for Judgment on the Pleadings:
asks the court to rule on the case,
based on the pleadings.
–Motion For Summary Judgment.
• Asks a court to grant a judgment for
moving party without a trial. Facts are
viewed in the light most favorable to the
other party.
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• Discovery.
–Process by which parties obtain
information from the opposing party
prior to trial.
–Depositions and Interrogatories.
• Case 3.2 Blankenship v. Collier (2010).
What happens when Plaintiff fails to
identify witnesses?
–Requests for Other Information.
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• Discovery (cont’d).
–Electronic Discovery (E-Evidence).
• FRCP deals specifically with preservation,
retrieval, and production of electronic
data.
• Pretrial Conference.
–After discovery is completed meet with
trial judge, explore possibility of
settlement, or identify issues in dispute.
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• Jury Selection.
–Voir Dire.
–Jurors can be dismissed peremptorily
(no reason or for cause (bias).
• The Trial.
–Opening Arguments.
–Evidence must be relevant to the issues
(tends to prove or disprove). 
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• The Trial (cont’d).
–Plaintiff’s Motion for Directed Verdict.
–Defendant’s Evidence: plaintiff can
‘rebut’ the evidence, and defense can
state ‘rejoinders.’
• Posttrial Motions.
–After jury reaches a verdict, either party
can make a posttrial motion. 
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• Posttrial Motions (cont’d).
–Motion for J.N.O.V.: granted only if the
jury’s verdict was unreasonable and
erroneous.
–Motion for New Trial: after looking at all
the evidence, judge will grant the
motion IF the jury was in error.
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• The Appeal.
–Filing: a party may appeal the jury’s
verdict or any legal issue, motion or
court ruling during the trial.
• Appellants must have legitimate grounds
for appeal (usually legal error).
–Appellate Review: appeals court can
affirm (agree with) or reverse (disagree
with) the lower court’s decision.
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• Enforcing the Judgment.
–Litigation process can reach a verdict,
but what if the defendant has no assets,
or insurance?
–Usually, a plaintiff’s attorney will verify
that the defendant has assets or
insurance before she will proceed with
the lawsuit.
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• Electronic Filing.
–More than 60% of states now have
some electronic filing system.
• Courts Online.
• Cyber Courts and Proceedings.
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• Negotiation.
–Informal, sometimes without attorneys,
where differences are discussed with
the goal of “meeting of the minds” in
resolving the case.
–Successful negotiation involves
thorough preparation.
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• Mediation.
–Involves neutral 3rd party ‘mediator’.
–Mediator talks face-to-face with parties
(in different rooms) to determine
“common ground.” 
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• Mediation (cont’d).
–Advantages: few rules, customize
process, parties control results (winwin).
–Disadvantages: mediator fees, no
sanctions or deadlines.
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• Arbitration.
–A more formal ADR.
–Neutral 3rd party renders a legallybinding decision.
–Usually the arbitrator is an expert or
well-respected government official.
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• Arbitration (cont’d).
–Arbitration Clauses and Statutes.
• The Federal Arbitration Act.
–Parties can agree to have decision
confirmed in federal court.
–FAA covers any arbitration clause in an
interstate commerce.
• State Arbitration Statutes.
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• Arbitration (cont’d).
–Issue of Arbitrability: party compels
arbitration and court resolves the issue
of whether arbitration is required.
• CASE 3.3 NCR Corp. v. Korala Associates,
Ltd. (2008). A mandatory employment
arbitration clause is generally enforceable.
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• Arbitration (cont’d).
–Mandatory Arbitration in the
Employment Context.
• Many claim workers are not sufficiently
protected with mandatory arbitration for
employment issues.
• Landmark case: Gilmer v. Interstate/Johnson
Lane Corp. (1991). Employee had waived his
right to sue when he registered with NY
Stock Exchange.
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• Other Types of ADR.
– Assisted Negotiation.
– Early Neutral Case Evaluation.
– Mini-Trial.
– Binding Arbitration.
– Federal courts: summary jury trials
(verdict is not binding but provides
guidance to parties).
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• Providers of ADR Services.
–Nonprofit organizations:
• American Arbitration Association.
• Better Business Bureau.
–For-Profit Organizations.
–JAMSADR.com.
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• Online Dispute Resolution.
–Also called ODR.
–Uses the Internet to resolve disputes.
–Still in its infancy but is gaining
momentum.
–See, e.g., Cybersettle, NAM, BBB,
ICANN.
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