Court

The law was broken when the group of anesthesiologists banded together to drive out any form of competition, which resulted in the failure of Mr… Alto’s business. Initially the organization of anesthesiologist from SST. Peters Community Hospital agreed to a settlement of $462,500. The trial Judge deemed the award from the Jury was excessive and ordered a new trial. The conclusions of the new trial were, the damages incurred were not the hospital’s responsibility due to lack of evidence and the settlement from the physicians was sufficient (Bazaar 2012).

Exclusive Contracts Hospitals routinely enter Into contracts with various professional groups for the sight to be the exclusive provider of their specific services at the facility In exchange for the group agreeing to provide and manage all aspects of that service wealth the hospital. These “exclusive contracts” generally result In the chosen medical department and associated equipment being closed off to physicians who are not part of the contracting group. Exclusive contracts are generally considered to be good for most doctors who participate in the groups and bad for those excluded by them.

In fact, while exclusive contracts offer obvious benefits to the physicians who receive he perks from the contracts and obvious disadvantages for those who are excluded, they also present pitfalls for physicians in the chosen group. The included doctors are somewhat slaves to the groups and will be kicked out of the groups if the physician does not comply with the rules and regulations of the contract. Exclusive contracts are agreements that initially appear to be anta-competitive on face value; multiple courts have rejected anti-trust challenges to exclusive contracts creating an unfair advantage, which reduces competition.

Physicians and nurses that have been excluded because of exclusive contracts have had much greater success in attacking exclusive contracting arrangements on the premise of breach of contract and lack of procedural process grounds. In order to prove there has been a violation of anti-trust and elimination of competition within a work environment such as a hospital. Typically exclusive contracts are built to keep outside providers from competing with the physicians who are already employed at the hospital or medical treatment facility. In rare cases like the Alto v.

SST Pewter’s Community Hospital case, the nurse anesthetist was already contracted with the facility and performed similar procedures as the anesthesiologists except for a cheaper rate (Bazaar 2012). The hospital administration should have analyzed the formation of the group odd providers and recognized what the Intentions were. Remedies to Breach Arbitration of breaches In anta-trust laws were frowned upon years ago when anta- trust laws were first set into place. Arbitration is a relatively fast way to arrive upon a being flexible and not as formal as a traditional courthouse.

Usually, arbitration can be scheduled quicker and with less working parts than a trial. In rare instances, if all parties involved come to an agreement, arbitrators can sometimes create rulings that judges are not allowed to decide. In arbitration, both sides present all evidence to an arbitrator in efforts to prove each side’s case. The arbitrator reaches a final verdict and decides whom the winners and losers are. An arbitrator does the Job that a traditional Judge or Jury would normally do in court if the matter escalated to that point (Hill 2014).

Summary Judgment is another remedy to handling the decision process in the event of a suspected anti-trust law breach. Summary Judgment is a decision entered by a court on behalf of one party that was in disagreement with another party, without the length and expense of a full trial. The idea of the summary judgment process is to remove the need to argue agreed upon facts and to decide without trial one or more causes of action in the complaint. The presenting and pleading procedures are extremely technical and complicated. This process is fairly dangerous to the party that the decision is being made against (Hill 2014).

Conclusion In this scenario, the groups of anesthesiologists were guilty of violating anti-trust saws with the internal contract that was created to eliminate competition from outside vendors for delivery of care. Anti-trust laws were created top prevent larger companies and organizations from pushing smaller entities out of the ability to fairy compete for business. Mr… Alto received a settlement from the hospital initially but was later unable to recoup legal fees and damages from the hospital once the trial judge ruled the damages were excessive.

Pursuant to the above, FL therefore forwarded to CT an invoice of pursuant to Clause 10 of the Agreement. However, by Act’s analysis, there were errors In the computation of PPTP In the 2009 tax assessment Issued by FIRS. CT Is also In disagreement with the rate applied by your Company in arriving at the royalty due for the oil produced. It was based on these beliefs, that CT forwarded to your Company the sum of and for tax assessment and royalty respectively totaling CT further requested that your Company challenges the tax assessment at the appropriate forum and re-compute the royalty cording to the established rates.

It Is on the above premise that your Company the following relief: (a) Declarations on the applicable royalty rate and the correct calculation of PPTP returns; (b) and specific damages for payment of the outstanding tax and royalty sums of Looking at the above relief, the issues in question which were submitted to Arbitration arose out of alleged wrong assessment and computation of taxes by your Company due to the FIRS and by extension to the Federal Government of Nigeria. So for all intents and purposes, the claim of your Company before the Orbital Tribunal s in effect for declarations on the applicable royalty rate and calculation of PPTP.

The Federal High Court in the recent decision of Federal Inland Revenue Service Vs… Nigerian National Petroleum Corporation & Others opined thus: “While it is conceded that the Parties are bound by the sanctity of their contracts and the issue in dispute arose out of the Agreement, the question still remains whether Parties can by an Agreement purport to confer Jurisdiction on an Arbitration Tribunal to determine issues relating to taxation of Companies or connected with the Federal

Government Revenue when such Jurisdiction is exclusively conferred on this Court by the Constitution of the Federal Republic of Nigeria. The answer I must say is an emphatic No. In other words, the Constitution of the Federal Republic of Nigeria precludes any other Court in Nigeria other than the Federal High Court, not to talk of an inferior Arbitration Tribunal, from exercising Jurisdiction over tax matters relating to Federal Government Revenue.

Although in simply parlance, one might be quick to say that given that EDP and FIRS re neither parties to the agreement nor parties before the orbital panel, they do not have the locus stands to make such an application. Furthermore, it is a trite principle of Arbitration law that Courts of Law must not be too hasty to make any injunctions or orders affecting arbitration proceedings. Be that as it may, We wish to draw your attention to the recent decision in Federal Inland Revenue Service Vs… Nigerian National Petroleum Corporation & Others wherein the A.

Belle J decided that: incidental thereto. It is not in dispute at all, that the Plaintiff in this case is the traitors body established by Law to wit: Federal Inland Revenue Service (Establishment) Act, 2007 as the Sole Federal Authority responsible for the assessment and collection of Taxes on behalf of the Federal Government of Nigeria. It stands to reason therefore that in any dispute where the Plaintiff perceived that its statutory functions are going to be affected by such dispute it will necessarily have the requisite locus stands to bring an action to seek remedy.

So, to my mind in the instant case, it is preposterous to argue as the 2nd- 5th Defendants did, arbitrarily f tax issues arising from production sharing contracts-that the Plaintiff has no locus stands to bring this action in which it alleges that its statutory functions to assess and collect tax for the Federal Government will be adversely affected in the Orbital proceedings between the Defendants in this case, merely on the ground that it is not party to the orbital proceedings.

It is the very reason of its not being a party to the orbital proceedings that makes it imperative for the Plaintiff to file this suit to protect its perceived interest in the subject matter of the arbitration. This Court is not unconcerned at this stage, with whether the Plaintiff will succeed because locus stands of a Plaintiff to sue is not dependent on whether or not its case will succeed. It is against this backdrop that I hold the view that the Plaintiff in this case has the locus stands to bring the present action.

On this score therefore, this Court has the jurisdiction to entertain the case. ” From the foregoing decision of the Federal High Court, the Court has taken the stance that if the FIRS perceives that its statutory functions are going to be affected by any dispute, it will have the requisite locus stands to bring an action to seek remedy. The Court accordingly held that FIRS had a basis to bring the action and that the Court has Jurisdiction to entertain the case. This therefore means that the EDP and FIRS may be granted injunctive orders restraining continuation of the arbitration.

Drawing from the above, the decision of the Tax Appeal Tribunal would be binding on CT and its preliminary objection to the Jurisdiction of the Orbital panel would be upheld. ACT The Nigerian Content Development and Monitoring Board (UNCOMBED)’s directive is made pursuant to the Nigerian Oil and Gas Industry Content Development Act to enhance the level of participation of Nigerian and Nigerian companies in the country’s oil and gas industry. The Act provides for the submission of Nigerian Content Plan to form an essential component of bidding for any license, permit or interest in the oil and gas industry.

It contains provisions to ensure that ‘first consideration’ is given to Nigerian and Nigerian Companies. The local content gives force of law to the Nigerian Content Policy, which are already part of current oil regulations. The local content act establishes a legal and regulatory framework for the involvement of and procrastination f indigenous oil and gas companies in the award of oil blocks, oil field licenses, oil lifting licenses and other projects. Under the Nigerian Oil and Gas Industry Content Development Act, rights or interests in an oil mining lease (MOL) may be transferred by assignment.

However, an assignment can only be valid where the consent of the Minister of Petroleum Resources has first been obtained following the fulfillment of the relevant conditions. These conditions include that the proposed assignee: Is of good reputation, a member of a group of companies of good reputation, or is wend by a company or companies of good reputation. Has sufficient technical knowledge and experience, and sufficient financial resources to effectively operate under the license or lease.

The doctrine of judicial precedent is based on the principle of stare decisis which means ‘to stand by what has been decided’. It is a common law principle whereby judges are bound to follow previous decisions in cases where the material facts are sufficiently similar and the earlier decision was made in a court above the current one in the court hierarchy. This doctrine of precedent is extremely strong in English law as it ensures fairness and consistency and it highlights the importance of case law in our legal system.

Black’s Law Dictionary defines “precedent” as a “rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases. ” For this system to operate successfully, in both criminal and civil courts, three things are required – a settled court structure, a ratio decidendi and accurate records of the decisions made by superior courts. A settled court structure is required as judges need to know which decisions they are bound to follow. The English Court hierarchy was largely established by the Judicature Acts 1873-75.

The House of Lords was made the final appeal court in 1876 under the Appellate Jurisdiction Act, in 2009 the Supreme Court became the final appeal court. There are two court systems, criminal and civil, and they both contain various appeal routes in a vertical court structure. As the UK is a member of the EU, the European Court of Justice and the European Court of Human Rights bind all English Courts in respect to matters within their jurisdiction. For criminal cases the Supreme Court, formally the House of Lords, is the most superior court in the hierarchy.

It binds all courts lower than itself and generally follows its own past decisions. The next court below in the hierarchy is the Court of Appeal (Criminal Division), they are bound by the past decisions of the Supreme Court/House of Lords and its own past decisions. Both Supreme Court and Court of Appeal have a way of avoiding following their own binding precedent which I will discuss later. Below the Court of Appeal is the Queen’s Bench Divisional Court, they are bound by both Supreme Court and Court of Appeal.

They are bound by their own past decisions however they can take a flexible approach in order to protect the liberty of the individual in question. The last two courts in the hierarchy are the Crown Court and Magistrates Court. These courts are bound by the Supreme Court, Court of Appeal and Queen’s Bench Divisional Court however they are not bound by their own decisions and they do not bind any other court. The civil court hierarchy is different; the Supreme Court is still the superior court, followed by the Court of Appeal (Civil Division).

The next court down the hierarchy is the Divisional Courts of The High Court, which are bound by the Supreme Court and Court of Appeal, also bound by their own decisions. The next court is the High Court, they are bound by the decisions of all three superior courts and the decisions of the High Court bind the two inferior courts which are the County Court and Magistrates Court. The inferior courts are bound by all superior courts but they are not bound by their own past decisions. The ratio decidendi, ‘the reason for deciding’ is the legal principle which the decision of the court is based upon.

It is the ratio decidendi which forms the binding precedent which must be followed in future cases of similar fact, the same court and all courts below it. An example of a ratio decidendi is in the case of R v Howe (1987) where the House of Lords held that the plea of duress was no defence against the charge of murder; this judgement became binding precedent which must be followed by the Supreme Court and all courts below it. It is also important to mention the obiter dictum which forms the remainder of the judgement. An obiter dictum means ‘other things said’ and these statements do not bind however they can form highly persuasive precedent.

An example of an obiter dicta statement is also found in the case of R v Howe (1987) where the judge stated that if the charge had been attempted murder rather than murder, then duress would still not have been available as a defence. This statement was obiter dicta because it did not directly relate to the facts of this particular case. This persuasive precedent was followed in the case of R v Gotts (1992) where a defendant charged with attempted murder tried to use the defence of duress in the Court of Appeal. The ratio decidendi of R v Gotts (1992) then formed its own binding precedent.

Other persuasive precedents include decisions of the Scottish courts and those made in the courts of other Commonwealth countries such as Australia and Canada. This may be because a case with these particular facts has not been heard in the English Courts before but may have been heard in another country. This was the case in R v R (1991) where the Court of Appeal and House of Lords followed previous decisions made by the Scottish courts that a man could be found guilty of raping his wife. Another persuasive precedent are dissenting judgements which come from the appeal courts.

In the Supreme Court and Court of Appeal the cases are heard by more than one judge and sometimes a decision is reached by only a majority of these judges. The judges in the minority will also give a judgement for why they came to their decisions and this is called a dissenting judgement. A dissenting judgement was followed by Lord Denning in the case of Candler v Crane Christmas (1951). The final requirement to ensure effective operation of judicial precedent is that there needs to be accurate records of the decisions of the superior courts. These can be found in Law Reports.

It is crucial that accurate records are available so that it is possible for the binding and persuasive precedents to be found. One example of a law report is the All England Law Report, law reports are also found in the media, The Times publishes law reports weekly. The reports contain all relevant information relating to the case – names of litigants, cases used, solicitors, barristers, a summary of the facts and the judgement itself. There are a number of advantages and disadvantages to judicial precedent and how it operates in the courts in England and Wales, most advantages have corresponding disadvantages.

One advantage is the certainty it provides, as the courts follow past decisions. Due to this certainty people are more aware of what the law is and have a better idea of how it may be applied in their case. In the House of Lords Practice Statement 1966 it points out how important certainty within the law is. Another advantage is consistency and fairness in the law so it can be seen that similar cases are decided in a similar way. In order for law to be credible it must be consistent. For example, the ratio of R v Howe that duress is no defence to the charge of murder must be followed in cases of similar material fact.

There is a wealth of detail contained in the reported cases. The principles set out in the cases are a response to real life situations and things that may have occurred and this can guide future litigants. Over time the law will become more precise as it will gradually be built up by all the variations of facts that come before the courts. Judicial precedent is also flexible and there is room for the law to change as the Supreme Court can use the Practice Statement to overrule cases. An example of flexibility is in R v R, after the judgement was made, Parliament amended the Sexual Offences Act 1956, stating that marital rape is a crime.

The doctrine of precedent also allows for new or ‘original’ precedents to be created. This will occur when there are no previous decisions on the case before the court or there is no legislative provision. Therefore an original precedent makes legal provisions for a matter for which there was previously no law. An example of this, where the matter had no come before the court before and Parliament had no guidance to offer, is found in Gillick v West Norfolk and Wisbech Area Health Authority (1985). In this case the House of Lords had to decide whether girls under the age of 16 could be prescribed contraceptives without parental consent.

The Lords decided that girls could be prescribed contraceptives in this circumstance, provided they could understand the issues involved. Judicial precedent can also been seen as a useful timesaver. Where a principle has already been established, cases with similar material facts are unlikely to have to go through a lengthy litigation process. A major disadvantage of judicial precedent is how rigid it is. An unjust precedent can lead to further injustices, as once the Supreme Court sets an unjust precedent it won’t be overruled until a case with similar facts goes on to the Supreme Court on appeal.

The chances are that this may not happen for many years. Also, the law may become outdated and require modernisation. An example of this is where judges since the 1960’s had felt that the law stating a builder did not owe a duty of care to persons they had sold a house to was unfair. Lord Denning made obiter comments regarding this to the effect that a duty should be owed. However the law was not changed until 1978 in Batty v Metropolitan Property Realisations Ltd where it was held that a duty of care was owed.

Sometimes the law will only be changed if an individual had the courage, the persistence and the money to appeal their case. It can be very difficult for anyone to conduct thorough research into the law; hundreds of judgements are made every year so it can be hard to discover the precise law on a matter. In order to find this out a person may have to search through many volumes of law reports, the complete official law reports are estimated to run to almost half a million pages. The judgements are often complex and therefore it can be difficult to determine what the ratio decidendi of a case actually is.

In the Court of Appeal and Supreme Court there is more than one judgement to consider and a common ratio must be decided by the judges in future cases. A judge may also give more than one ratio, for example in Rickards v Lothian (1913) where Lord Moulton gave two ratios for not holding the defendant liable. Judgements themselves are often long with no clear distinction between comments made and the reasons for the decision. In Dodd’s Case (1973) the judges in the Court of Appeal were unable to find the ratio in a decision of the House of Lords.

Also, the use of distinguishing to avoid past decisions have lead to some areas of law becoming very complex. It can also be argued that judges are overstepping their constitutional role by actually making the law rather than just applying it. Judicial precedent maybe seen as undemocratic as it is the role of Parliament to create law, the judiciary are there to enforce it. In the same way it can also be seen as undemocratic as judges are not elected and therefore should not be making law. Another disadvantage is that there is no opportunity for the judge to research or consult experts on the likely outcomes or effects of their decisions.

Therefore judges are confined to making their decisions based on the arguments presented in the course of the case. Despite the doctrine of judicial precedent being a major factor in the English legal system, there are a number of ways by which a judge may avoid following a precedent. Distinguishing is a method which can be used by a judge to avoid following a precedent. If a judge finds that the material facts of a current case are sufficiently different from those of a previous precedent and can draw a distinction between them, then he is not bound by the previous decision.

Two cases that demonstrate this process are Balfour v Balfour 1919) and Merritt v Merritt (1971). In both cases a wife was making a claim against her husband for breach of contract. The judgement in Balfour was that the claim could not succeed as it had been a domestic arrangement rather than a legal one and therefore was not legally binding. In Merritt the court held that there was a legal contract between husband and wife and the agreement had been made in writing and took place after they had separated.

This distinguished the case from Balfour, the agreement in Merritt was not just a domestic arrangement, and it was a legally enforceable contract. This provided sufficient differences between the cases that the judge in Merritt did not have to follow the judgement made in Balfour. Another mechanism which can be used by judges to avoid following precedent is overruling where a court in a later case states that the legal ruling decided in an earlier case is wrong. Overruling is where a higher court does not follow a precedent set in a previous case, either by a lower court or by itself.

This may occur when a higher court overrules a decisions made in an earlier case by a lower court. An example of a superior court overruling a previous precedent set by a lower court is Hedley Byrnes v Heller and Partners (1964) which was a claim for damages arising from negligent and misleading advice. The House of Lords overruled the decisions of the majority in the Court of Appeal in Candler v Crane Christmas (1951) and held that there can be liability for making a negligent mis-statement. However, too frequently overruling casts doubts on the certainty of the law and leads to inconsistencies.

For lawyers to be able to give good advice the law must remain relatively “safe to predict” and this not the case if senior judges use every available opportunity to reverse the decisions of their predecessors. Some alarm was caused in the 1986 case of R v Shivpuri (1986) which was the first use of the Practice Statement in a criminal case. The House of Lords overruled their own previous decision made in Anderton v Ryan which had only been made twelve months earlier as they believed that the law (Criminal Attempts Act 1981) has be incorrectly applied.

On the other hand, the House of Lords have often been reluctant to overrule even bad previous decisions. This was illustrated in Jones v Secretary of State, where the decision in R v Dowling was allowed to stand even though four of the seven Law Lords thought it was wrong. The need for certainty is still highlighted in the decision of the House of Lords since 1966. Both of these practises can be useful in allowing flexibility within the law but can also lead to uncertainties and inconsistencies which undermine the reliability of the system.

However, where these two parallel ideas of certainty and flexibility is concerned, there will never be one definite solution to satisfy all. Disapproving can also be used by judges to avoid following precedent; this is where a judge states in his judgement that he believes the decision in an earlier case is wrong. This may occur where the present case is on a related point of law but the point of law is not sufficiently similar for the earlier decision to be overruled. It can also occur where the judge in a lower court in the hierarchy than the court which made the original decision.

In this situation the lower court cannot overrule the superior court however they can disapprove of the decision by expressing their view that it was wrong. An example of this is found in the case of R v Hasan (2005), this case was about the availability of the defence of duress by threats, to a criminal offence. The main point of the case was whether a defendant could use the defence of duress if he should have realised that he was putting himself in a position where he might be pressurised into committing an offence.

Reversing is similar to overruling however it occurs where a higher court does not follow precedent set by a lower court in the same case. Reversing is where the same case has gone to appeal and the appeal court reaches the opposite decisions to that of the lower court. An example of reversing is found in Fitzpatrick v Sterling House Association Ltd (2000). In this case the Court of Appeal refused to allow the homosexual partner of a deceased tenant to take over the tenancy due to regulations laid out in the Rent Act 1977.

On appeal the House of Lords reversed the decision of the Court of Appeal. The Practice Statement 1966 was issued by the House of Lords, declaring their intention not to be bound by their own previous decisions. The Practice Statement allowed the House of Lords to change the law if they believe that the decision made in an earlier case is wrong. It gave them to the flexibility to refuse to follow an earlier judgement when ‘it appears right to do so’. This was shown in the case Herrington v British Railways Board (1972) which involved the law on duty of care owed to a child trespasser.

In the case of Addie v Dumbreck (1929), the judgement was that an occupier of land would only hold a duty of care for injuries to child trespassers if they were caused deliberately. In Herrington the Lords held that social and physical conditions had changes since 1929 and therefore the law should also change. The judgement in Herrington was that land owners did owe a duty to prevent injury or death to child trespassers. The Court of Appeal can also refuse to follow its own previous decisions under three exceptions that were bought up in the case of Young v Bristol Aeroplane (1944) These exceptions are as follows; If a previous decision conflicts with a later House of Lords (Supreme Court) decision, it must follow the decision of the House of Lords; if there are two conflicting previous decisions then the Court of Appeal must choose between them. •If its previous decision was made per incuriam e. g. mistakenly or without care •If the House of Lords (Supreme Court) has overruled a previous decision of the Court of Appeal There is an additional reason for the Court of Appeal to depart from following its own past decisions and that is where it has been disapproved by the Privy Council.

Privy Council opinion has only persuasive value, it is not binding. An example of this is where Morgan Smith killed a former flatmate during a fight. His defences were that he did not intend to kill or cause grievous bodily harm; that he was suffering from diminished responsibility; and that he was provoked. The focus of the appeal was on the objective part of the test for provocation and whether the reasonable person could be given certain characteristics of the accused, in this case the characteristic of having a severe depressive illness. The Court declined to follow the opinion in Luc Thiet Thuan v R (1996).

It is also important to mention in the effect of the Human Rights Act 1998 on judicial precedent. If the precedent was set before the Human Rights Act came into force, the precedent may be contrary to it. As with judicial precedent itself, there are also a number of advantages and disadvantages to the avoidance of precedent by the courts. One advantage is that it allows potential for growth and means that case law is not completely rigid. The different mechanisms for avoiding precedent allow judges to develop and modernise the law when it is necessary.

An example of this is the case of Hall v Simons (2000) where the House of Lords modernised the law and held that barristers could be held accountable for negligently presenting a case in court. In this case the court refused to follow the decision made in the case of Rondel v Worsley (1967) as it was deemed that the commercial world had changed significantly since 1967. Sometimes precedents can be developed to a point in which they are seen to be unfair, avoiding precedent allow these unfair laws to be replaced with more appropriate ones.

In the case of R v R and G (2003) which involved two very young defendants convicted of arson, the House of Lords used the Practice Statement to avoid following the precedent set in the case of Caldwell (1981). The question facing the House of Lords was whether the defendants had foreseen the risk; they held it was unfair to judge the actions of an 11 and 12 year old by the standard of a reasonable person. The House of Lords brought about a change in the law meaning that if the question of recklessness should come up, a subjective test is used which requires the defendant to have foreseen the risk.

A disadvantage of avoiding precedent is that the law changes as a result, creating laws retrospectively. This can be seen as being unjust, as the precedent that is set applies to events that have already happened. It may be that the defendant in a case committed an act that at the time of commission was actually within the law. This was the case in R v R (1991), at the time of the attack, the law stated that a man could not be found guilty of raping his wife. Due to the retrospectively law making, the defendant was found guilty and imprisoned.

When there is a chance that a judge may avoid precedent it can remove the certainty within the law and make the outcome of some cases uncertain. This is unwelcome as justice requires that cases and defendants are treated in the same way. It also causes problems for legal professionals, who will not be able to advise with certainty on the likely outcome of a case. In criminal law certainty is particularly needed because the liberty of the defendant is at stake. In the case of Howe (1987), the House of Lords held that duress was no defence for murder, whether the defendant is the principle or an accessory.

This case overruled the earlier House of Lords decisions in DPP v Lynch (1975), where it was held that duress was available as defence when charged with being an accessory to murder. Also, avoiding judicial precedent does not conform with the idea of separation of power. Only Parliament should create new law and it is the role of the judiciary to apply it. However when judges avoid following precedent they inevitably create new law. 1. Black’s Law Dictionary, p. 1059 (5th ed. 1979).

After calling the Calendar Department and scheduling my visit for May 7, 2014 at 9 am, went to the Santa Clara County Superior Civil Court on 191 N SST SST, San Jose, CA 951 13. SSL entered the building, was greeted by several court officials wearing badges. Proceeded to empty my pockets, remove my watch and belt and then walked through a metal detector. There’s something about putting your belt on in a public setting that is fascinating. The bulletin board indicated that the trial I was to attend was taking place in Department 8 on the third floor of the building. Seed the elevator to get to the third floor and walked through the double doors into the courtroom. The bailiff immediately recognized me as a student. Judge Maureen A Flan was the presiding judge for the trial. Further research for the case showed that the case (#1 JOVANOVICH) was filed on November 2, 2010 by Austria Limited against several different people and entities in the matter of fraud. From ha TTL gathered, both the plaintiff and defendants were in business together attempting to build a company that specializes in hosting data centers on ships for security purposes.

There was a lot of money involved and the plaintiff may or may not have been siphoning money from the company’s capital funds. Two witnesses were called to the stand during my visit, Mr.. Kenneth Choc and Ms. Lillian Valued. Each spent a lot of time reviewing exhibits. Mr.. Choc is one of the defendants who owns one of the businesses involved in the case. He was being asked about a lot of different p paperwork he did and emails he sent. Ms. Valued is the Assistant Branch Manager for CitiBank in Saratoga.

She reviewed bank statements and wire transfer documents that involved both pa reties. Honestly, it was hard not to fall asleep. I was very uncomfortable sitting for the entire two hours Of questioning. Also felt bad for the attorneys who had to stand awkwardly because they were also trying to lean closer to the microphone so they could be heard. At first, I didn’t even think the judge was paying attention. It looked like she was doing her own thing as the witnesses were questioned, but occasionally she would chime in and it was then clear that she was busy taking notes of her own. Hint the biggest upset to me was the lack of gavel usage. Overall, it was a good experience. Not only does a courthouse visit give a person more motivation to keep their nose clean but it was also an eye opener for anyone, like myself, who would like to go into business for themselves. Choose your partners wisely and always keep everything documented. Court Official Interview Name and title of person interviewed: Robert Mencken, J. D. , Attorney at Law How long have you served the courts? Almost 6 years Where did you go to school?

Baylor University School of Law What was your most memorable moment on the job? Would say when recently I helped a couple that was being sued get an agree meet from the other side that dropped the case. It is what they wanted from the beginning Eng, and I was really glad to get it for them. What was your most challenging moment on the job? When had a client lie to me, to which I put my own reputation on the line for, and then found out about the lie (that he had not done drugs, when in fact he had, and he drug test confirmed it).

It was a learning experience, which makes me much more care u’, but also less trusting. It’s both a good thing that it happened, and a shame that it had t o. How has the court system changed in the past few years? In my state it has changed significantly because of tort reform and politics. Tort reform has affected the way that lawyers analyze cases, what cases they take, and who at the future Of the profession is going to be. Politics is always a force Of change where Jud gees are either appointed or elected, because politics ultimately are what get them into office.

And the practice of law changes based upon the beliefs of the judges that are info arcing and interpreting that law. What recommendations would you make to students who want to become De actuated? If you mean students that might want to be lawyers, I would say make sure the tatty really do want that. Observe how lavaВ»years act and what they do in court. Make sure t hat you want to do all of the things that lawyers do, not just the “fun” or “glamorous” ones. And of course, study hard, and make good grades. It makes a huge difference whew n you’re applying for law schools.

The modern entrant making process Is often a set of very complex agreements and usually Involves big amounts of money. The negotiations may last for months or even years. As a result, the parties will reach an agreement by piecemeal. There Is not a simple offer and an acceptance anymore, but there are offers, counteroffers, partial discussion. But when exactly the discussion is ended? For this still developing contract formation procedure, in most legal systems there are no special and adequate rules established. Since it is impossible to qualify in these cases offer and acceptance, a whole set of new problems arises: . As the agreement been concluded; 2. When was it concluded; 3. If the agreement is concluded, what are the terms of it. In this paper I will examine and discuss a very controversial topic in the theory of the formation of contracts: the relationship between parties in a situation in which an agreement has not been reached and one of the parties breaks off the negotiations. This can be done in several ways: one 2 can Just end the negotiations and walk away, the offered can revoke his offer, an option clause is violated etc.

Since there is still no contractual liability in these cases, he question arises if there is any liability at all and if so according to what theory a party is held liable. I will analyses this problem from the point of view of two legal families: Common Law and Civil Law. In the context of this paper by Civil Law I mean the codified law systems in Western Europe and I will discuss French, German and Dutch law. We will see that there are important differences between the Common Law and the Civil Law approach to these problems.

As a result of the still growing trade market between the United States and Western Europe it is of utmost importance that one is aware of these differences. I want to discuss three topics: 1 . Cross-boundary pre-contractual negotiations will bring together law and culture and reality and perception and so many problematic situations; I will give you Just some examples to show what I mean; 2. Then I will discuss the different approaches as mentioned above and even more important the different results on what is understand as pre-contractual liability; 3. He last topic will be on recent European developments in contract law in this field as realized in a proposed European Code of Contract Law. 2. Law and culture As I said before, pre-contractual negotiations will not only bring together law and ultra but also reality and perception. So it is quite possible that one party – from his particular background and legal culture – is convinced that after some meetings an agreement is reached, as the opposite party thinks these were still preliminary conversations. When this is the case severe problems will rise and immediately two questions have to be answered: 1 . According to which law the breaking off of the negotiations has to be Judged; 2. And which court has standing. In Common Law countries, as a rule lawyers will take part in the conversation in a very early stage of the negotiations. s true for The Netherlands you from the start of the 3 – it is all a matter of trust. If you take your lawyers with negotiations it means you don’t trust the other party so they don’t trust you. The result is that you start the negotiations one step behind the other party and that is exactly not what you want.

Probably this is also because English and American contracts are much longer than German, French or Dutch contracts. 1 Just one example; contrast these two standard forms of a forum selection clause: ; American clause: The exclusive forum for the resolution of any dispute under or rising out of this agreement shall be the courts of general Jurisdiction of xx and both parties submit to the Jurisdiction of such courts. The parties waive all objections based on forum non convenience; German clause: Cholinesterase Geriatricians sit xx (the only competent court is (P. 96) So when you enter into international contracting your first lessons are: 1 . Be aware of the cultural differences and legal mentality between you and the other party ; 2. Try to reach an agreement on two questions as early in the negotiations as possible: a. Which law has to be applied in case anything goes wrong (express choice of law); b. Which court has standing. A way to realize an answer to these questions in the pre-contractual stage is the use of a so called Letter of Intend or a Memorandum of Agreement.

In case anything goes wrong, such a Letter or Memorandum can save a lot of time and money for both parties. According to American case law the answer of the question if the Letter or Memorandum is legally binding depends on the following factors: – The amount of details; – The language used; – Are there any escape-clauses; – Are there ‘subject to formal contract/definitive agreement’ clauses; See for a comparison between American and German contracts: Claire A. Hill and Christopher King, How do German contracts do as much with fewer words? , 79 Chicago-Kent Law Review 2004, p. 889 – 926. – Complexity of the transaction; – The way parties behave in the pre-contractual stage; – Custom. In Civil law similar factors are used. For about seven years I was honorary Judge in the Court of Rotterdam in a division on international contracts. In a surprisingly amount of cases – where contracts were actually formed – there was no provision on an express choice of law and on which court has standing. Making a choice on forehand will save time and money and the allowing factors can be taken into account. In the first place parties create certainty; both parties know what to expect in case anything goes wrong.

I will take the English approach as a starting point, because this approach still resembles the classical theory on contract law. (Gigglier 2002, Cheshire and Foot 2001, Allen 1991) In the case William Lacey (Winslow) Ltd. V. Davis [1957] 1 W. L. R. 932, 934 (Q. B. 1957) the view is expressed that a party to negotiations undertakes this work as a gamble, and its cost is part of the overhead expense of his business which he hopes will be met out of the profits of such contracts as are made. ‘ More recently the leading case on this topic is Wallboard v.

Miles [1992] 1 All ERE 453. The question was if the parties can, by agreement, impose on themselves a duty to negotiate in good faith. Lord Cancer held: ‘Each party to the negotiations is entitled to pursue his (or her) own interest, so long as he avoids making misrepresentations. To advance that interest he must be entitled, if he thinks it appropriate, to threaten to withdraw from further negotiation or to withdraw in fact in the hope that the opposite party may seek to reopen negotiations by offering him improved terms.

A duty to negotiate in good faith is as unworkable in practice as it is inherently inconsistent with the position of the negotiating party. In spite of this rather rigid and formalistic view English law has taken on this question, there are some grounds to pursue negotiations or to recover damages in case of breaking off the negotiations. 6 Although the main contract has not been concluded, the court may held that there is a collateral contract which gives rise to some rights during the negotiating process.

And even though there is no contract, a party may be entitled to restitution relief on the grounds that the other party has derived a benefit from the transaction for which he should compensate the plaintiff even if no contract has arisen (unjust enrichment). Finally a party can be held liable for loss which he inflicted on the other party in case of fraudulent misrepresentation (a claim in tort, e. G. When there was never an intention to form a contract) or negligent misrepresentation. In England one can only claim negative interests.

Specific performance – that is to say forcing parties to re-open negotiations – is not possible. 3. 1. 2 AMERICAN LAW (Tanner and Hamilton, paper 2004, Track 1991) Like in English contract theory, it is generally agreed that also in the United States the existence of a duty in good faith is denied in the absence of an enforceable contract. According to American law there are three other grounds for pre-contractual liability. As in England, unjust enrichment as a basis for liability could be a ground for restitution.

However, Just a few courts have entertained such claims and the prevailing view is still the alternator theory: both benefit and loss are at risk of the parties. Also the misrepresentation theory is considered to be a ground for recovering losses in the preoccupation stage in the United States, but situations in which this occurs American courts is the doctrine of promissory estoppels: one negotiating party cannot thou liability breach a promise made during negotiations, if the other party relied on that promise.

Case Brief:  Marbury v. Madison

Background Facts

            This case arises from the failure of Secretary of State Madison to deliver a commission to William Marbury which would have made him a justice of the peace.  The commission was signed by President Adams and the new presidential administration of President Jefferson through Secretary of State Madison refused to deliver the commission.  Madison could have delivered the commission, he did not before Adams’ term as president expired, and the Jefferson administration refused to implement the wishes of the Adams administration on the grounds that the commission was no longer valid with the termination of Adams’ presidency.

As a result, Marbury filed with the United States Supreme Court a writ of mandamus seeking to force Secretary Madison to deliver the commission.  The Supreme Court was therefore required to decide a number of unique issues.

Issues Presented and Holdings

            The first issue presented was whether Marbury was entitled to the commission appointing him a justice of the peace.  The Court held that he was, in fact, entitled to the commission.  The second issue presented was whether Marbury was entitled to a legal compensation or remedy.  The court stated that compensation or remedies were available when legal injuries were suffered.  The third issue presented was whether the Supreme Court had the power to review Congressional laws in order to determine whether these laws were constitutional.  The Court found that it was within its power to review Congressional acts in order to determine whether they complied with or violated the constitution.  The fourth issue presented was whether Congress had the power to expand the Supreme Court’s original jurisdiction in a manner which was more expansive than the original jurisdiction already set forth in the third article of the constitution.  The Court held that Congress did not have the power to expand the constitution through a legislative act.  The final issue presented, dependent upon the fourth issue presented, was whether the Court had the power to issue a writ of mandamus based on the Congressional act.  The court held that the Court did not have this power.

Decision, Rationale and Analysis

            The Supreme Court, in this decision, effectively ruled that the judicial and legislative powers are defined and limited according to the specific language contained in the federal constitution.  Specifically, the constitution set forth the limits of the Supreme Court’s original jurisdiction in Article III and Congress’s legislative power could not be invoked in order to expand or otherwise violate this constitutional language.  This was an important decision because it clearly stated the power of the United States Supreme Court to review acts of the legislative branch and it also provided that Congress could not unilaterally change the language of the constitution.  The Supreme Court would thereafter be the sole arbiter of the constitution and Congress would be compelled to ensure that its legislative proposals conformed with minimum constitutional standards.  Because the Congressional legislation purporting to expand the Supreme Court’s original jurisdiction was void in the instant case, with respect to the power to issue a writ of mandamus, Marbury could not receive this writ because it was beyond the Supreme Court’s power.

References

Marbury v. Madison  5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803).

<http://www.lawnix.com/cases/marbury-madison.html>

 The courts can decide whether the laws or actions of the legislative and executive branches of government are constitutional. The process for making this determination is judicial review.

The doctrine of judicial review was established in 1803 when the United States Supreme Court decided Mammary . Madison.

Jurisdiction

To hear a case, a court must have jurisdiction over the person against whom the suit is brought or over the property involved in the suit. The court must also have jurisdiction over the subject matter. Generally, courts apply a “sliding-scale” standard to determine when it is proper to exercise jurisdiction over a defendant whose only connection with the jurisdiction is the Internet. A Trial and appellate courts A trial court is a court in which a lawsuit begins, a trial takes place, and evidence is presented. An appellate court reviews the rulings of trial court, on appeal from a judgment or order of the lower court.

Discovery

Discovery is the process of obtaining information and evidence about a case from the other party or third parties. Discovery entails gaining access to witnesses, documents, records, and other types of evidence. Electronic discovery differs in its subject that is, e-media rather than traditional sources of information, such as paper documents. A Alternative dispute resolution The traditional method of resolving a legal dispute is through litigation. Alternative methods include negotiation, mediation, and arbitration. In negotiation, the parties attempt to settle their dispute informally without the involvement of a third party acting as mediator. In mediation, the parties attempt to come to an agreement with the assistance of a neutral third party, a mediator, who does not, however, make a decision in the dispute. In arbitration, a neutral third party or a panel of experts hears a dispute and renders a decision.

One of the arguments against allowing Shari courts in the United States is that We would no longer have a common legal framework within our society. Do you agree or disagree? Why? Arguments in favor of allowing Shari courts-?or at least permitting the application of Shari principles in disputes in U. S. Courts or in alternative methods of dispute resolution-?include the legal and cultural principle of giving effect to agreements.

If the parties to a dispute have agreed to a certain set of standards to govern their situation, those standards could be applied. This would not undercut our common legal framework, but reinforce it. Arguments against allowing Shari courts or reminisces in the United States would most likely center on the conflicts between Shari tribunals and standards and state or federal authority, governmental bodies, or law. Adapting the Law to the Online Environment-?critical Thinking How might a large company protect itself from allegations that it intentionally failed to preserve electronic data?

A corporation might defend against charges of intentional destruction or loss of data by showing, for example, that the absence is due to the implementation of a policy to periodically purge electronic systems. Such charges might be avoided by not destroying he data but instead storing it.

Ethical Consideration

Was it fair for the North Carolina courts to require a New Jersey company to litigate in North Carolina? Explain. Yes, it was fair to require Independence to litigate in North Carolina. The courts ruling did not offend “traditional notions of fair play and substantial justice” because Independence purposely availed itself of the privilege of doing business in North Carolina. Independence had engaged in numerous transactions with Southern for a year and had billed Southern for services in amounts totaling ore than $21,000. Therefore, Independence should have expected to be hailed into court in North Carolina in the event of a dispute. What If the Facts Were Different? Suppose Gucci had not presented evidence that the defendant made one actual sale through his Web site to a resident of the court’s district (the private investigator). Would the court still have found that it had personal jurisdiction over Hugging? Why or why not? The single sale to a resident of the district, Gucci private investigator, helped the plaintiff establish that the defendant ‘s Web site was interactive and that the defendant used the Web tit to sell goods to residents in the court’s district.

It is possible that without proof of such a sale, the court would not have found that it had personal jurisdiction over the foreign defendant. The reason is that courts cannot exercise jurisdiction over foreign defendants unless they can show the defendants had minimum contacts with the forum, such as by selling goods within the forum. How would business be affected if each state could pass a statute, like the one in Texas, allowing parties to void out-of-state arbitration?

If all states could pass statutes like the one in Texas, many parties would probably be less inclined to transact business. An arbitration provision allows a party to limit the burden and expense of settling any disputes. If another party could freely void such an agreement, there would be a greater risk of arbitration in an inconvenient forum, costly formal litigation, or both. That risk increases the perceived costs of doing business, making the business opportunity less attractive. Thus, many parties may decline to enter contracts without enforceable arbitration provisions.

 Federal Jurisdiction

The federal district court can exercise jurisdiction in this case because the case involves diversity of citizenship. Diversity jurisdiction requires that the plaintiff and defendant be from different states and that the dollar amount of the controversy exceed $75,000. Here, Garner resides in Illinois, and Foreman and his manager live in Texas. Because the dispute involved the promotion of a series of boxing matches with George Foreman, the amount in controversy likely exceeded the required threshold amount. A. Original or appellate jurisdiction Original jurisdiction, because the case was initiated in that court and that is where the trial will take place. Courts having original jurisdiction are courts of the first instance, or trial courts-?that is courts in which lawsuits begin, trials take place, and evidence is presented. In the federal court system, the district courts are the trial courts, so the federal district court has original jurisdiction. Jurisdiction in Illinois. No, because the defendants lacked minimum contacts with the state of Illinois.

Because the defendants were located out of the state, the court would eave to determine whether they had sufficient contacts with the State for the Illinois to exercise jurisdiction based on a long arm statute. Here, the defendants never came to Illinois, and the contract that they are alleged to have breached was not formed in Illinois. Thus, it is unlikely that an Illinois state court would find that sufficient minimum contacts existed to exercise .Jurisdiction in Nevada. Yes, because the defendants met with Garner and formed a contract in the state of Nevada.

A state can exercise jurisdiction over out-of-state defendants under a long arm statute if the defendants had sufficient contacts with the State. Here, the parties met and negotiated their contract in Nevada, and a court would likely hold that these activities were sufficient to justify a Nevada courts exercising personal jurisdiction.  In this age of the Internet, when people communicate via e-mail, tweets, Backbone, and Keep, is the concept of jurisdiction losing its meaning?

Many believe that yes, the idea of determining jurisdiction based on individuals’ and companies’ physical locations no longer has much meaning. Increasingly, entrants are formed via online communications. Does it matter where one Of the parties has a physical presence? Does it matter where the e-mail server or Web page server is located? Probably not. In contrast, in one sense, jurisdiction still has to be decided when conflicts arise. Slowly, but ever so surely, courts are developing rules to determine where jurisdiction lies when one or both parties used online systems to sell or buy goods or services.

In the final analysis, a specific court in a specific physical location has to try each case. Answers to Issue Spotters in the Example Feature at the End of the Chapter IA Sue contracts with Tom to deliver a quantity of computers to Cue’s Computer Store. They disagree over the amount, the delivery date, the price, and the quality. Sue files a suit against Tom in a state court. Their state requires that their dispute be submitted to mediation or nonbinding arbitration. Fifth dispute is not resolved, or if either party disagrees with the decision of the mediator or arbitrator, will a court hear the case?

 Submission of the dispute to mediation or nonbinding arbitration is mandatory, but compliance with the decision Of the mediator or arbitrator is voluntary.  At the trial, after Sue calls her witnesses, offers her evidence, and otherwise presents her side of the case, Tom has at least two choices between courses of actions. Tom can call his first witness. What else might he do? Tom could file a motion for a directed verdict. This motion asks the judge to direct a verdict for Tom on the ground that Sue presented no evidence that would justify granting Jan relief.

The judge grants the motion if there is insufficient evidence to raise an issue of fact. This problem concerns standing to sue. As you read in the chapter, to have standing to sue, a party must have a legally protected, tangible interest at stake. The party must show that he or she has been injured, or is likely to be injured, by the actions of the party that he or she seeks to sue. In this problem, the issue is whether the Turns had been injured, or were likely to be injured, by the county’s landfill operations.

Clearly, one could argue that the injuries that the Turns complained of directly resulted from the county’s violations of environmental laws while operating the landfill. The Turns ivied directly across from the landfill, and they were experiencing the specific types of harms (fires, scavenger problems, groundwater contamination) that those laws were enacted to address. Thus, the Turns would have standing to bring their suit. Marry can bring suit in all three courts. The trucking firm did business in Florida, and the accident occurred there.

Thus, the state of Florida would have jurisdiction over the defendant. Because the firm was headquartered in Georgia and had its principal place of business in that state, Marry could also sue in a Georgia court. Finally, because the amount in controversy exceeds $75,000, the suit could be brought in federal court on the basis of diversity of citizenship.Discovery (BITE pages 81-82) Under the work-product rule, attorneys are allowed to protect information that they have gathered as a result of their own skill and diligence.

For example, an attorney for a party involved in an auto accident can go out to the scene of the accident and observe the fact that there is a stop sign missing without being under any obligation to divulge such information to his opponent in the lawsuit. Similarly, an attorney who discovers a recently ecocide case decision supporting his or her theory is under no obligation to share this discovery with the opposing attorney. If attorneys had to share everything, they would be less inclined to expend efforts on behalf of their clients because, in essence, they would be working for both sides at once. Arbitration Based on a recent holding by the Washington state supreme court, the federal appeals court held that the arbitration provision was unconscionable (see page 296 in Chapter 1 1) and therefore invalid. Because it was invalid, the restriction on class-action suits was also invalid. The state court reasoned that by offering a contract that restricted class actions and required arbitration, the company had improperly stripped consumers of rights they would normally have to attack certain industry practices.

Class-action suits are often brought in cases of deceptive or unfair industry practices when the losses suffered by an individual consumer are too small to warrant a consumer suing. In this case, the alleged added cell phone fees are so small that no one consumer would be likely to litigate or arbitrate the matter due to the expenses involved. Because the arbitration agreement eliminates the usability of class actions, it violates public policy and is void and unenforceable. The purpose behind most venue statutes is to ensure that a defendant is not “hailed into a remote district, having no real relationship to the dispute. The events in dispute have no connection to Minnesota. The Court stated: “Looked at through the lens of practicality-?which is, after all, what [the venue statute] is all about-?Nestsg’s motion can really be distilled to a simple question: does it make sense to compel litigation in Minnesota when this state bears no relationship to the parties or the underlying events? ‘ The court answered no to this simple question. The plaintiff resides in South Carolina, her daughters injuries occurred there, and all of her medical treatment was provided (and continues to be provided) in that state.

South Carolina is the appropriate venue for this litigation against Nests to proceed.  Arbitration can be compelled under a contracts arbitration clause as long as a dispute involves matters covered by the contract provision. In the set of facts in this problem, the terms of the parties’ contract are central to the resolution of their dispute. Under the contract, all claims that PRM has against Premiering go to arbitration because the arbitration clause covers “all disputes. ” That includes allegations of fraud and theft.

Such matters can be resolved by arbitration. In the actual case on which this problem is based, the court ruled that PRM had to take all complaints about Premiering to arbitration. On appeal, the U. S. Court of Appeals for the Eighth Circuit affirmed this ruling. Spotlight on National Football-?Arbitration An arbitrator’s award generally is the final word on the matter. A court’s review of an arbitrator’s decision is extremely limited in scope, unlike an appellate court’s review oaf lower court’s decision.

A court will set aside an award only if the arbitrator’s conduct or “bad faith” substantially prejudiced the rights of one of the parties, if the award violates an established public policy, or if the arbitrator exceeded her or his powers. In this problem, and in the actual case on which this problem is based, the NAP argued that the award was contrary to public policy because it required Matthews to forfeit the right to seek workers’ compensation under California law. The court rejected this argument, because under the arbitrators award Matthews could still seek workers’ compensation under Tennessee law.

Thus, the arbitration award was not clearly contrary to public policy.  Minimum contacts (BITE pages 66-68) No. This statement alone was insufficient to establish that Illinois did not have jurisdiction over the defendant. The court ruled that Med-Express failed to introduce factual evidence proving that the Illinois trial court lacked personal jurisdiction over Med-Express. Med-Express had merely recited that it was a North Carolina corporation and did not have minimum contacts with Illinois. Med-Express sent a letter to this effect to the clerk of Cook County, Illinois, and to the trial court judge. But that was not enough.

When a judgment of a court from another state is challenged on the grounds of personal jurisdiction, there is a presumption that the court issuing the judgment had jurisdiction until the contrary is shown. It was not.This is very common, as many hospitals and other health-care provides have arbitration agreements in their contracts for services. There was a valid contract here. It is presumed in valid contracts that arbitration clauses will be upheld unless there is a violation of public policy. The provision of medical are is much like the provision of other services in this regard.

There was not evidence of fraud or pressure in the inclusion of the arbitration agreement. Of course there is concern about mistreatment of patients, but there is no reason to believe that arbitration will not provide a professional review of the evidence of what transpired in this situation. Arbitration is a less of a lottery that litigation can be, as there are very few gigantic arbitration awards, but there is no evidence of systematic discrimination against plaintiffs in arbitration compared to litigation, so there may not be a major ethical issue.McDaniel had the legal capacity to sign on behalf of her mother.

Someone had to do that because she lacked mental capacity. So long as in such situations the contracts do not contain terms that place the patient at a greater disadvantage than would be the case if the patient had mental capacity, there is not particular reason to treat the matter any differently. Critical Thinking and Writing Assignments Business Law Critical Thinking Group Assignments 1. The statute violates litigants’ rights of access to the courts and to a jury trial because the imposition of arbitration costs on those who improve their sections by less than 10 percent on an appeal is an unreasonable burden.

And the statute forces parties to arbitrate before they litigate-?an added step in the process of dispute resolution. The limits on the rights of the parties to appeal the results Of their arbitration to a court further impede their rights Of access. The arbitration procedures mandated by the statute are not reasonably related to the legitimate governmental interest of attaining less costly resolutions of disputes. The statute does not violate litigants’ constitutional right of access to the courts because it provides the parties tit an opportunity for a court trial in the event either party is dissatisfied with an arbitrator’s decision.

The burdens on a person’s access to the courts are reasonable. The state judicial system can avoid the expense of a trial in many cases. And parties who cannot improve their positions by more than 10 percent on appeal are arguably wasting everyone’s time. The assessment of the costs of the arbitration on such parties may discourage appeals in some cases, which allows the courts to further avoid the expense of a trial. The arbitration procedures mandated by the statute are reasonably related to the estimate governmental interest of attaining speedier and less costly resolution of disputes. . The determination on rights of access could be different if the statute was part of a pilot program and affected only a few judicial districts in the state because only parties who fell under the jurisdiction of those districts would be subject to the limits. Opponents might argue that the program violates the due process of the Fifth Amendment because it is not applied fairly throughout the State. Proponents might counter that parties who object to an arbitrator’s decision have an opportunity to appeal it to a court.

Opponents might argue that the program exceeds what the state legislature can impose because it does not reasonably relate to a legitimate governmental objective-?it arbitrarily requires only litigants who reside in a few jurisdictions to submit to arbitration. Proponents might counter that this is aimed at the reduction of court costs-?that the statute rationally relates to a legitimate governmental end. An equal protection challenge would most likely be subject to a similar rational basis test. Under these and other arguments, the reduction of court costs would be a difficult objective to successfully argue against.