Bill of Rights• 1791: Ten written guarantees of protection of

individual liberties from government interference.

• Originally, Bill of Rights only applied to the federal government.

• Later, the Bill of Rights was “incorporated” via the 14th Amendment and applied to the States.

The Bill of Rights

The first ten amendments to the Constitution comprise the Bill of Rights.

First AmendmentCongress shall make no law respecting an establishment of religion, (called the Establishment Clause)or prohibiting the free exercise thereof; (called the Free Exercise Clause)or abridging the freedom of speech, or of the press; or the right of

the people peaceably to assemble, and to petition the Government for a redress of grievances.

(freedom of speech, press, right to assemble and to petition)

First Amendment: Freedom of Speech

• Right to Free Speech is the basis for our democratic government.

• Free speech also includes “symbolic” speech, including gestures, movements, articles of clothing.

• Offensive speech and conduct that is intended as speech also protected, see Snyder v. Phelps. But it’s not always clear what conduct is speech and what isn’t. (See J. Alito dissent)

First AmendmentCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

1. Demonstrators, including Johnson, burn an American Flag at a protest rally and are arrested by the local authorities. They are charged with violating a law prohibiting the desecration of the American Flag. The demonstrators challenge the constitutionality of the law. What result?

In the 1989 case of Texas v. Johnson, the Supreme Court held that burning a flag to protest government policies is an act of expression, and thus protected political speech. It struck down the local law.

First Amendment

Free Speech Rights of CorporationsThe Supreme Court overruled prior cases holding that political speech may be banned based on the speaker's corporate identity. Under the 1st Amendment, corporate funding of independent political broadcasts in candidate elections cannot be limited. Majority held political speech is indispensable to a democracy, and this is no less true because the speech comes from a corporation as opposed to an individual. Citizens United v. FERC

First Amendment

Commercial (not political) speech treated differently than non-commercial speech.

More leeway given to regulation ofThe content of commercial speech

(See Handout)

Unprotected Speech

• Certain speech is NOT protected:– Defamatory speech.– Threatening speech that violates criminal laws.– Fighting Words.– Obscene Speech is patently offensive, violates

community standards and has no literary, artistic, political or scientific merit.

– False or Misleading Advertising

First Amendment:Freedom of Religion

• First amendment guarantees that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

• Establishment clause: no state-sponsored religion or preference for one religion over another.

• Free Exercise clause: person can believe what he wants, but actions may be unconstitutional.

Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Third Amendment

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Seventh Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Tenth 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.

• State have inherent “police powers.” – Police powers include right to regulate health, safety,

morals and general welfare.– Includes licensing, building codes, parking regulations and

zoning restrictions.

Fourteenth AmendmentSection 1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

….Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

Due Process• Due Process is both procedural and substantive.• Procedural: any government decision to take life,

liberty or property must be fair. Requires: Notice and Fair Hearing.

• Substantive: focuses on the content or the legislation (the right itself).– Fundamental Right: requires compelling state interest.– Non-Fundamental: rational relationship to state

interest

Equal Protection• 14th Amendment: A state may not “deny to

any person within its jurisdiction the equal protection of the laws.”

• Means that government must treat similarly situated individuals (or businesses) in the same manner. Courts apply different tests:– Minimal scrutiny-economic rights.– Intermediate scrutiny.– Strict Scrutiny – fundamental rights.

CHAPTER 3

TRADITIONAL AND ONLINE DISPUTE RESOLUTION

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BASIC JUDICIAL REQUIREMENTS

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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MANY FACETS OF JURISDICTION

Personal Jurisdiction Jurisdiction over Property Jurisdiction over Subject Matter Original or Appellate Jurisdiction Federal Court Jurisdiction Concurrent or Exclusive Jurisdiction

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JURISDICTION OVER PERSONS

Power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate.

Courts use long-arm statutes for non-resident parties based on “minimum contacts” with state.

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JURISDICTION OVER PROPERTY

Also called “in rem” jurisdiction. Power to decide issues relating to

property, whether the property is real, personal, tangible, or intangible.

A court generally has in rem jurisdiction over any property situated within its geographical borders.

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JURISDICTION OVER SUBJECT MATTER This is a limitation on the types of

cases a court can hear, usually determined by federal or state statutes.

For example, bankruptcy, family or criminal cases.

General (unlimited) jurisdiction. Limited jurisdiction.

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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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FEDERAL COURT JURISDICTION

“Federal Question” cases in which the rights or obligations of a party are created or defined by some federal law.

“Diversity” cases where: The parties are not from the same state,

and The amount in controversy is greater than

$75,000.

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EXCLUSIVE VS. 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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VENUE

Venue is concerned with the most appropriate location for the trial.

Venue is determined by statute. In Texas, venue in civil cases is governed by the Texas Civil Practice & Remedies Code; in Criminal Cases by the Texas Code of Criminal Procedure.

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TEXAS VENUE – GENERAL RULE

§ 15.002. VENUE: GENERAL RULE. (a) Except as otherwise provided by this subchapter or Subchapter B or C, all lawsuits shall be brought:

(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;

(2) in the county of defendant's residence at the time the cause of action accrued if defendant is a natural person;

(3) in the county of the defendant's principal office in this state, if the defendant is not a natural person; or

(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.

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TEXAS – MANDATORY VENUE

Texas law provides for mandatory venue in certain kinds of cases; where there is such a mandatory provision, it trumps the general rule. Some examples:

LAND. Certain suits relating to land (partition, suits to determine title, recover property, or for damages to land) must be brought in the county in which all or a part of the land is located.

LANDLORD-TENANT. Suits arising out of a lease must be brought in the county where the premises are located.

MANDAMUS AGAINST STATE DEP’T HEAD. Must seek mandamus against the head of a State Department in Travis County.

LIBEL, SLANDER OR IVASION OF PRIVACY. Where the Plaintiff lived at the time the claim accrued, where the defendant resided at the time of suit, or the residence of the defendant, if the Plaintiff chooses that venue.

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STANDING TO SUE

In order to bring a lawsuit, a party must have “standing” to sue.

Standing is sufficient “stake” in the controversy; party must have suffered a legal injury.

Standing can be conferred by statute or by common law.

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STATE AND FEDERAL COURTS

Ct. Criminal Appeals

Ct. Criminal Appeals

SupremeCourt

SupremeCourt

Court ofAppeals

Court ofAppeals

District CourtDistrict Court County CourtCounty Court

Municipal Court

Municipal Court

JusticeCourt

JusticeCourt

Texas CourtsTexas CourtsU.S. Supreme

Court

U.S. SupremeCourt

Circuit Courts ofAppeals

Circuit Courts ofAppeals

U.S. DistrictCourt

U.S. DistrictCourt

Federal CourtsFederal Courts

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TRIAL COURTS

“Courts of record”-court reporters. Opening and closing arguments. Juries are selected. Evidence, such as witness testimony,

physical objects, documents, and pictures, is introduced.

Witnesses are examined and cross-examined.

Verdicts and Judgments are rendered.

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CIVIL PROCEDURES IN STATE COURT

Pleadings. Plaintiff’s Complaint. Citation/Summons. Defendant’s Answer/General Denial.

Pre-Trial Motions. Motion for Judgment on the Pleadings. Motion for Summary Judgment.

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TRIAL PROCESS

It may not seem like it, but trials follow a pretty structured and linear process:

Plaintiff’s petition sets forth distinct and recognized “causes of action.”

Identifies the facts that (i) support those causes of action and (ii) plaintiff will prove.

Defendant’s answer may admit all or none of Plaintiff’s facts. It may contain objections to the petition, assert affirmative defenses, counterclaims or crossclaims.

Trial proceeds on the facts identified by the parties’ pleadings and narrowed down by the discovery process.

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CIVIL PROCEDURES IN STATE COURT

Discovery. Depositions and Interrogatories. Requests for Documents. Requests for Admission.

Pre-Trial Conference. Jury Selection (Voir Dire).

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CAUSES OF ACTION

These are claims for legal relief that are recognized by the law. Some examples are:

Breach of a contract Negligence Trespass Violation of Deceptive Trade Practices

Act Libel

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CAUSES OF ACTION

Causes of action can be established by decisions of courts (common law) or by legislatures (statutes).

Generally, one has to prove a set of “elements” that make up a cause of action.

Elements are factual occurrences that, taken together, give rise to some legal claim.

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CAUSES OF ACTION

For example, Anderson believes that Billings has cheated him by inducing him to invest in a non-existent Chinchilla farm. Might he have a cause of action for fraud?

This would depend on whether Anderson can prove the elements of fraud, which are:

Anderson made a false statement Anderson knew the statement was false and

intended to deceive Billings Billings justifiably relied on the false statement Billings suffered a loss, and The loss was suffered because of Billings’ false

statement

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PROOF AT TRIAL

There must be evidence at trial of each element of a cause of action.

The jury (or the judge if it is a “bench trial” and the judge is also acting as the fact finder) decides what happened; what the facts are.

If there is no evidence on which to base their factual determination, there is error in the trial and an appeal will likely result in reversal.

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CIVIL PROCEDURES IN STATE COURT

Trial. Opening arguments. Plaintiff’s Case in Chief.

Defense cross-examines Plaintiff’s witnesses.

Defense Case in Chief. Plaintiff cross-examines Defense witnesses.

Closing Arguments. Verdict / Motion JNOV /Judgment. Appeal.

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APPELLATE COURTS

Middle level of the court systems. Review proceedings conducted in the

trial court to determine whether the trial was according to the procedural and substantive rules of law.

Generally, appellate courts will consider questions of law, but not questions of fact.

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COURTS OF APPEAL

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SUPREME COURTS

Also known as courts of last resort. The two most fundamental ways to

have your case heard in a supreme court are: Appeals of Right. By Writ of Certiorari.

These include: U.S. Supreme Court; the Texas Supreme Court and the Texas Court of Criminal Appeals

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SUPREME COURTS

In Texas, there are two “Courts of Last Resort:”

- Texas Supreme Court Hears appeals in Civil cases from theintermediate Courts of Appeal

- Texas Court of Criminal AppealsHears appeals of Criminal cases only

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ALTERNATIVE DISPUTE RESOLUTION Trials are a means of dispute resolution

that are very expensive and sometimes take many months to resolve.

There are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.

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ADR

ADR describes any procedure or device for resolving disputes other than the traditional judicial process.

Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets.

Most common: negotiation, mediation, arbitration.

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NEGOTIATION

Less than 10% of cases reach trial. Negotiation is informal discussion of

the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case.

Successful negotiation involves thorough preparation, from a position of strength.

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ASSISTED NEGOTIATION

Mini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3rd party (e.g., a retired judge) who renders a non-binding “verdict.” This facilitates further discussion and settlement.

Expert evaluations. Conciliation: 3rd party assists in

reconciling differences.

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MEDIATION

Involves a neutral 3rd party (mediator). Mediator talks face-to-face with parties

(who typically are in different adjoining rooms) to determine “common ground.” Advantages: few rules, customize process,

parties control results (win-win). Disadvantages: mediator fees, no

sanctions or deadlines.

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ARBITRATION

Many employment contracts have binding arbitration clauses.

Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official.

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ARBITRATION DISADVANTAGES

Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence.

Arbitrators do not have to issue written opinions.

Generally, no discovery available.

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ARBITRATION PROCESS

Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award.

Courts are not involved in arbitration unless an arbitration clause in a contract needs enforcement.

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What are Ethics?

How might you approach an ethical issue?

- Consequences analysis - Actions analysis - Some of both?

Some examples:

ETHICS

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ETHICS – TOUGH QUESTIONS

You can only rescue one of each of the following, which do you save?

a) A child or an adultb) A stranger or your dogc) Hitler or lassied) Your spouse or a Nobel Laureate

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MORE…

A dog or a weasel Your entire family or the entire canine

species A bottle with the cure for cancer or

your brother A bottle with the cure for cancer or

your brother who just gave you one of his kidneys

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ETHICS

Ethical Dilemmas – Class Project