Pg 39 Flashcards
The full faith and credit clause requires a state to do what with regard to a final judgement from a sister state?
To honour that final judgement of a sister state the same way that the rendering state would. That is true even if the present state would not have given the same judgement itself
The full faith and credit clause only applies to what courts?
State courts, but 28 USC 1738 imposes the same principles on federal courts requiring them to give full faith and credit to judgements of state courts
Do states often give preclusive effect from collateral estoppel to the decisions of state administrative agencies?
Yes, when those agencies are acting in a judicial capacity and resolve disputed issues, that is considered to be an adequate opportunity to litigate and the courts usually apply res judicata
How do you determine if an administrative agency is acting in a judicial capacity so that claim or issue preclusion would apply?
– Was there adequate notice to the person that would be bound?
– Did the parties have the right to present evidence or make legal arguments?
– Was there a rule of finality when the proceedings were terminated and a final decision given?
What are the three categories of remedies?
– declarative relief
– specific relief
– compensatory relief
What is declarative relief?
When the court defines the parties’ rights and duties. This could happen if someone wanted to be sure that an agreement was not valid before he didn’t perform under it
What is specific relief?
When the court orders certain conduct. They might command someone to return stolen property
What is compensatory relief?
When the defendant pays the plaintiff money
What is ADR?
Alternate dispute resolution
What is the idea behind ADR?
This gives ways to resolve legal problems outside of the courts.
When do you most often see ADR?
In consumer or employment disputes where it is required and in boilerplate contracts.
What are the benefits of using ADR?
Is usually informal, quicker, cheaper, and better attuned to personal relationships.
What are the different types of ADR?
– private judging - arbitration – mediation – summary jury trials – mini trials – neutral fact-finding ombudsman – early neutral evaluation – negotiation
What is arbitration?
The party selects an arbitrator to do a hearing and to reach a decision. This often involves an adversary proceeding where the parties present their case and have the opportunity to cross-examine and to rebut. The parties are often represented by attorneys who gather evidence, present it, and make arguments. The decision is entered in court and both parties are then bound by it.
What are the three phases of arbitration?
– prehearing: the parties disclose things voluntarily or the arbitrator can request or subpoena documents
– hearing
– award and opinion
What is the role of the arbitrator in arbitration?
He is the sole judge of the evidence and he doesn’t have to conform to legal rules of evidence, so he has broad discretion
What does an award have to be for arbitration?
It can be just a statement of rights and obligations of the parties
What is “final offer arbitration”?
When each party proposes a final offer of settlement and a neutral chooses between the two. This encourages the parties to be reasonable and to seriously negotiate
If someone is not satisfied with the result of ADR, what can they do?
He can demand a trial de novo, but if he doesn’t get a better result at trial, he might be required to pay the costs to the opposing party
What is mediation?
This uses a neutral third-party that has no interest in the outcome and cannot make a decision. He acts as a go-between to assist the disputants to reach a settlement. The mediator helps the parties to find common ground and some resolution. There are usually no lawyers, and the focus is on maintaining the relationship.
How does mediation usually end?
In a signed agreement that defines future behaviour and may be enforcible in court
What is negotiation?
This lets the parties choose both procedures and standards that will help them reach a settlement for their dispute. During the pre-trial phase a judge can require them to try to negotiate a settlement. Usually lawyers take charge and the focus is on the parties’ interests and overall gain. This is open-ended and the law sets the parameters and the terms of an acceptable deal
What is private judging?
Use a private judge, who is usually someone that is retired, and is treated the same as a bench trial but it happens faster and is more simple. The decision can be appealed and the decision is not disclosed to the public. This can be expensive but is usually fast
What happens when you use a neutral fact-finding ombudsman?
A third-party gathers information and the disputants resolve the dispute, but the third-party can pressure them to settle by acting as a representative and investing in presenting facts
What are early neutral evaluations?
Facts and legal presentations to a neutral person selected by the parties or the court that gives an open assignment of the position
What is a mini-trial?
An abbreviated version of a trial before a panel of managers that have the authority to settle and a neutral advisor. The parties resolve the dispute and the advisor gives impartial appraisal
What is a summary jury trial?
The parties present an abbreviated case to a panel of six jurors, this lasts less than a week and the verdict is not binding, but it gives a basis for settlement. The jurors do not know that it’s not real
What is the mnemonic to help remember the different types of ADR?
JAMS MONN
said in Jamaican accent
