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69 Cards in this Set
- Front
- Back
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Steps of Legislative Process
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Congress creates most enviro law. Enviro laws primarily federal because enviro problems do not recognize state borders, thus require uniform, nationwide approach. 1) Legislature proposes a bill 2) Bill introduced in House or Senate 3) referred to House or Senate subcommittee that has jurisdiction over bill's subject matter 4) Bill undergoes hearings to collect testimony from all concerned parties (lobbyists may come into play) 5) Bill is "marked up," or drafted and sent to subcommittee for a vote 6) Bill is either approved or amended and sent to full House or Senate, who usually adopt different versions 7) Senate-House conference committee compromises and reconciles differences 8) Bill must be voted in by both houses of Congress 9) Sent to President, who signs bill into law or vetoes 10) Veto may still pass with 2/3 majority
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US Code
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The official compilation and codification of the general and permanent federal laws of the US. Contains 51 titles. When a bill is signed by the president it becomes a statute, written down and codified into the US code.
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Plain Language
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When interpreting a law, judicial branch tries to ascertain congressional intent. The court first looks at “plain language” of the statute; that is, words are given their ordinary meaning. They then look at the legislative history to determine the intent of the legislature.
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Stare Decisis
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Common law, the process of reliance on precedent to settle a court case. "Let the decision stand." Not statutory or constitutional interpretation, and not a first impression case (where judge has most latitude to make law). Precedents are binding to only courts of a lower level in the same system (i.e. Ohio Supreme Court stare decisis case affects Ohio appellate and trial courts, but not applicable elsewhere). Gives judge opportunity to impose values on law; no 2 cases are exactly the same, judges seek to find differences from "case at bar" and preceding cases. Sometimes conflicting precedents
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Marbury v. Madison
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U.S. Supreme Court (and most state supreme courts) have power of judicial review. Not expressly stated in Constitution, but this right was established in Marbury v. Madison, making Supreme Court "final arbiter of constitutionality of every law." Judicial review gives court power to restrict activities of legislative and executive branches. Most enviro law is federal statutory law and Supreme Court is final arbiter, so most enviro decisions come from Supreme Court.
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Supremacy Clause
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Provision in Article 6 of Constitution that establishes the US constitution, federal statutes and treaties as “supreme law of the land”. The text provides that these are the highest form of law in the US legal system and mandates all state judges must follow federal law when a conflict arises b/t federal law and either state constitution or state law. Only applicable if Congress is acting in pursuance of its constitutionally authorized powers. Supremacy clause is also basis for the doctrine of federal preemption
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Treaty approval
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President has the power, subject to advice and consent of Senate, to make treaties. Once a president has entered into a treaty, and it has been ratified by congress, a treaty becomes law of the land based on Supremacy Clause of Constitution; it supersedes any state law. Treaty-making is one of the few ways that the US can influence enviro policies of other nations.
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Executive Order
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Presidents issue exec orders to help offices and agencies of the exec branch manage the operations within the federal govt itself. Exec orders have full force of law when they take authority from the power granted directly to the Exec by the Constitution, or are made in pursuance of certain Acts of Congress that explicitly delegate discretionary power to the President. Throughout history, presidents have made laws by issuing exec orders. Quick way for pres. to achieve a goal, but exec orders made by one president can be overruled by next (Obama rescinded a Bush exec order that made it more difficult for agencies to adopt health, safety, enviro regulations. Also used by governors to respond to emergencies, budgeting problems.
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Federal Register
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Official journal of the federal govt. that contains most routine publications and public notices of govt agencies. It is a daily publication compiled by office of the Federal Register. Proposed rules, as well as the rules finally implemented by an agency, must be published in federal register, and public must be given opportunity to comment on these proposals.
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Public vs. Private Law
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Public laws set up to provide for public welfare, generally applied by administrative agencies, regulate classes of people or organizations. Enviro laws = considered public law, along with labor and antitrust law. Private law regulates conduct b/t two individual parties. Sometimes private laws used in enviro matters, usually in tort/personal injury case
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Criminal vs. Civil Law
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Rules governing criminal vs. civil law are distinct. Criminal law = federal and state statutes that prohibit wrongs against the state or society in general (rape, murder, robbery). Criminal law serves to punish offenders, deter others from committing similar crimes, usually with imprisonment or fines. Crimes divided generally into felonies and misdemeanors. Civil law defined as the body of laws regulating relations between individuals or between individuals and corporations. Initiating party = plaintiff. Usually tort and contract cases, and plaintiff seeks compensation. Stigma attached to crime = much greater. Difference in burden of proof. Civil case = preponderance of evidence (more likely than not). Criminal case = guilty beyond a reasonable doubt (i.e. like 51% vs. 99%).
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United States v. Park
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1975 criminal law case that helped to make criminal sanctions more of a deterrent than they otherwise might have been. Laid down the rule that a corporate officer can be held criminally liable for failure to correct a regulatory violation, even when that officer directed a lower-level employee to take corrective action. The test for liability In that case was that criminal liability would be imposed when a person, by virtue of his/her position in corporation had the responsibility and authority either to prevent the violation or to promptly correct it and failed to do so. The defendant in such a case cannot avoid liability by claiming ignorance. If the person delegates responsibility, he/she is legally accountable for the actions or inaction of delegates.
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EPA Audit Policy
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"A systematic, documented, periodic and objective review by regulated entities of facility operations and practices related to meeting enviro requirements." A means to verify enviro compliance. Incentivizes self-policing: if a firm can demonstrate that it discovered a violation and moved to correct it, the firm will not be subject to the gravity portion of any civil penalty. Also piloting web-based systems to allow firms to electronically self-disclose violations.
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Federalism
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Principle underlying system of govt established by Constitution. Means that the authority to govern is divided between two sovereigns, or supreme lawmakers. In US, two sovereigns = state and federal govts. One characteristic of federalism is allocation of the power to control local matters to local govts. This characteristic is embodied in the constitution. Under Constitution, all powers not given exclusively to the federal govt or taken from the states are reserved to the states. The federal govt has only those powers granted to it in the Constitution. Therefore whenever federal legislation affecting the environment is passed, the question of the source of authority for that regulation arises.
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Federal Presumption
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Federal presumption doctrine is used to strike down a state law that does not directly conflict with a federal law but attempts to regulate an area in which federal legislation is so pervasive that it is evident that Congress wanted only federal regulation in that general area. Most likely occurs in interstate commerce. Implied that there is no room for state regulation
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Commerce Clause Powers
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Commerce refers to trade or the exchange of goods or services. Commerce clause provides the authority for Congress to pass most of the federal enviro regulations. Clause empowers legislature to “regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” Depending on ideological makeup of the SC, interpretations vary. However, currently it is broadly interpreted, such as the bird watching allowing enviro regulation if it impacts migratory birds because of the commerce derived from bird watching.
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Restrictive Effect of Commerce Clause
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Commerce clause also interpreted as an implicit restriction on the states’ authority to regulate matters affecting interstate commerce. Under doctrine of federal preemption, if the federal govt is supposed to regulate matters affecting interstate commerce, then the states should not regulate these matters, thus it follows that states may not regulate interstate commerce. Issue of whether states violate the commerce clause is often surrounding regulation of waste, attempting to find ways to restrict the importation of out-of-state waste without violating the commerce clause and are generally failing.
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4th Amendment
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Protects against unreasonable search and seizure. Evidence obtained this way cannot be used in trial. Govt officials must first have warrant from court, that specifies items sought and who and where will be searched. Must demonstrate probable cause to obtain warrant. Applies to corporations as well.
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Due Process Clause
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"No person shall be deprived of right to life, liberty, and property without due process of law." 5th amendment prohibits federal govt, 14th prohibits states. Procedural due process: anyone charged would be given a fair trial (i.e. given notice of the crime and opportunity to approach accusers). Substantive due process: today this could include termination of welfare benefits, employee termination etc.
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Property Rights Advocates
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Takings Clause under 5th amendment says if govt takes private property for public use, it must pay the owner just compensation. Attack what they see as govt. "overreaching": wetland/species preservation, etc. Property rights advocates have been gaining momentum following Lucas v. South Carolina Coastal Council case where Lucas sued saying that a law prohibiting from building on his newly bought land constituted a taking. They are attempting to make gains in the courts as well as in the state and federal legislatures. Movement coalitions include miners, ranchers, farmers, energy companies joining forces.
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Equal Protection Clause
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14th amendment – no state shall deny to any person within its jurisdiction the equal protection of its laws. These words create the constitutional basis for concerns about environmental racism that are increasingly being raised by civil rights activists.
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Public Trust Doctrine
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Idea that the govt is a trustee for enviro quality, traces its roots back to early Roman law, in which the doctrine of public trust developed around the idea that certain common properties such as the air, seashores and rivers were held in trust by the govt for free and unimpeded public use. The leading case that established this was the Illinois Central Railroad Co. V. Illinois, where Illinois legislature passed a statute granting more than 1,000 acres of valuable land to the Illinois Central Railroad Company. The USSC affirmed the state’s title to the land and in doing so explained the concept of holding title under the public trust doctrine. (p 39) it also comes into play when the lands held in trust are threatened by proposed actions of govt.
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Sovereignty
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US has a federalist system in which there are two sovereigns or supreme law makers, the state govts and federal govt. For treaties to work each country is a sovereign power in itself and needs to get the govts to agree to things using their own domestic laws.
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NGOs
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Organizations that are neither part of govt nor conventional for-profit businesses. Usually set up by ordinary citizens, they may be funded by govts, foundations or businesses. Some avoid funding altogether and are run by volunteers.
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UN Security Council
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Primary source of enforcement of international law. It has limited executive authority to enforce the provisions of its charter and to maintain peace and security. However, it does not have any enforcement authority over international law in general and is limited because it requires unanimity of all its members before it can act. Has primary responsibility for the maintenance of international peace and security. It has 15 members, each member has one vote.
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International Court of Justice
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Established by the UN its impact has been limited because it decides only cases submitted by parties who agree to be there. The ICJ has jurisdiction to decide cases that are submitted to it. In addition the court may render advisory opinions at the request of the General Assembly or any other competent body of the UN. One obvious problem is that when one party is the transgressor, that party is obviously going to be reluctant to submit the dispute to the court. If the court is asked to render a nonbinding advisory opinion, the effect of that advice is likely to be nil, especially if the opinion suggests the payment of reparations. It is rare that cases come to this court. Even if a judgment is rendered, enforcement is difficult, the UN Security Council can ‘decide upon measures to be taken to give effect to the judgment’ however because it is vague they don't and so the judgment is ignored.
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Conventional International Law
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Conventional law comprises some 20 multilateral treaties governing enviro issues and more than 275 bilateral agreements that contain references to enviro issues. Conventional international enviro law can trace its roots back to the UN conference on the Human Environment in Stockholm in 1972. This two week meeting produced the Stockholm Declaration which was subsequently adopted by the UN General Assembly. It contained 26 principles, an action plan consisting of 109 recommendations, and a resolution on institutional and financial arrangements. Topics covered include fundamental human rights, management of human resources, the relationship between development and the environment, etc. the principles are important because they consolidated the existing rules of international enviro law while also providing guidance for the future of this body of law. A second agreement, the World Charter for Nature was adopted by the UN general assembly with the US casting the only dissenting vote.
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Customary International Law
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A source of international law, its source is in the general principles of law that are recognized by civilized nations and in the judicial decisions and teachings of respected jurists. 4 basic principles that have been codified by the International Law Association and the International Law Commission. 1) good neighborliness – no state is entitled to use land in a way that would infringe upon the rights of others. 2) Duty of due diligence – obligation to protect the rights of other states, use diligence to prevent and abate pollution. 3) Equitable utilization of shared resources. 4) Duty to inform and cooperate.
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Stockholm Declaration
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Conventional international environmental law can trace its roots back to the UN conference on the Human Environment in Stockholm in 1972. This two week meeting produced the Stockholm Declaration which was subsequently adopted by the UN General Assembly. It contained 26 principles, an action plan consisting of 109 recommendations, and a resolution on institutional and financial arrangements. Topics covered include fundamental human rights, management of human resources, the relationship between development and the environment, etc. the principles are important because they consolidated the existing rules of international environmental law while also providing guidance for the future of this body of law.
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United Nations Environmental Program (UNEP)
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Special body created by UN General Assembly which has done much to effectuate world-wide enviro policies. Mandate is to assess, monitor and protect the human environment by seeking solutions to pollution and human-made contamination, promoting environmentally sound economic and social developments in urban and rural areas. Also engages in cooperative ventures with other organizations. Created to effectuate the action plan set forth in Stockholm Declaration.
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NAFTA
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Treaty designed to make trade freer. Caught interest of environmentalists, as it requires that laws be based on “scientific principals” and “risk assessment” when legislating any enviro, health and safety laws. Because US laws are often based on political compromise as well as science, some of the laws do not meet these standards.
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WTO
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Organization that intends to supervise and liberalize international trade. It officially commenced 1995 during a revision of the GATT and deals with the regulation of trade between participating countries; it provides a framework for negotiating and formalizing trade agreements, and a dispute resolution process aimed at enforcing participant’s adherence to WTO agreements. The Committee on trade and the environment operates under the auspices of the WTO. Gave substantial legislative, executive, and judicial authority (including authority to impose sanctions), to an international body in which U.S. would have equal voting power as other nations and no veto power. WTO rulings pose conflicts with U.S. enforcement, as well as multilateral environmental agreements (MEAs), could try to undermine other regulations.
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General Agreement on Tariffs and Trade
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Multilateral agreement regulating international trade. Purpose was the “substantial reduction of tariffs and other trade barriers and the elimination of preferences on a reciprocal and mutually advantageous basis”. It was negotiated during the UN conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the International Trade Organization. Nations have the right to enact any environmental, health and safety laws as long as they are “necessary” and are the “least trade-restrictive” way of resolving the problems. Meaning things such as boycotting tuna caught by fishing methods that kill dolphins is no longer allowed.
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Cartagena Protocol on Biosafety
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purpose was to addres s the growing concern about genetically modified organisms and biotechnology. It ensures that countries have the necessary information before deciding to allow such organisms into their nation. The US is not a signatory. An international agreement on biosafety as a supplement to the Convention on Biological Diversity. The Biosafety protocol seeks to protect biological diversity from potential risks posed by genetically modified organisms resulting from modern biotechnology. It makes clear that products from new technologies must be based on the precautionary principal and allow developing nations to balance public health against economic benefits. E.g. it lets countries ban imports of GMO’s if they feel there is not enough scientific evidence that the product is safe. The total number of parties is 166 including Afghanistan and the European Union.
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UN Convention on Biological Diversity
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A treaty requiring signatory nations to establish policies to slow the loss of planet and animal species. Developed nations with technology will cooperate with nondeveloped nations that have the diverse species of rainforest flora and fauna to develop new pharmaceuticals. Bush opposed the treaty on the grounds that it would not adequately protect biotechnology but when Clinton took office he signed the treaty. The battle for ratification has been a long one, still awaiting ratification. an international legally binding treaty with three main goals. 1. Conservation of biological diversity, 2. Sustainable use of its components and 3. Fair and equitable sharing of benefits arising from genetic resources. Its objective is to develop national strategies for the conservation and sustainable use of biological diversity. It is often seen as the key document regarding sustainable development. It was opened for signature at the Earth Summit in Rio in 1992.
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World Commission on Environment and Development (Brundtland Commission)
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also known as Brundtland Commission, its mission is to unite countries to pursue sustainable development together, wanted to formulate long-term strategies to attain sustainable development by the year 2000 and beyond. It was established to rally countries to work and pursue sustainable development together. Greatest accomplishment was the publication of Our Common Future – report based on data gathered from public hearings in a dozen cities around the world and essentially said that humanity has the ability to make development sustainable – to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs. The organization Center for Our Common Future was started in 1988 to take the place of the commission.
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World Bank
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one of the primary sources of funding for projects in developing countries. As such it has the potential to play an extremely influential role in environmental policies worldwide. Before mid-1980s environmental factors were not a consideration in the World Bank’s lending decisions and many criticized it for not considering social impacts. Today however, when a project is being considered, the environmental department of the World Bank does a preliminary screening and it is rated according to its potential impact upon the environment. The bank set a goal of increasing the investment in renewable energy and energy efficiency 20%. But the latest NGO analysis of World Bank energy sector lending shows their loaning three times more pubic money for climate destroying fossil fuel investments than environmentally sustainable renewable energy projects.
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Global Environment Facility
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unites 183 countries in partnership with international institutions, civil society organizations and the private sector to address global environmental issues while supporting national sustainable development initiatives. Today the GEF is the largest public funder of projects to improve the global environment. an independently operating financial organization, the GEF provides grants for projects related to biodiversity, climate change, international waters, land degradation, the ozone layer, and persistent organic pollutants.
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Transboundary Pollution
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transboundary pollution has been around for years. It generally arises either by pollution generated in one area being transported great distances before falling to earth or when two or more nations border on a common resource and one nation pollutes the common resource to the detriment of the other.
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Convention on Long Range Transboundary Air Pollution
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the first internationally legally binding instrument to deal with the problems of transboundary air pollution was the Convention on Long Range Transboundary Air pollution signed in 1979. The fundamental principles involve protecting humans and the environment from air pollution by limiting, reducing and preventing long range transboundary air pollution, developing policies and strategies to combat air pollution and sharing information on methods of air pollution reduction. After the entry into force of LRTAP in 1983, several additional protocols were developed to strengthen it and make its objectives more concrete.
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Basel Convention
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main source of international law for hazardous wastes is the Basel Convention, which entered into force in 1992 and has 168 parties however the US has signed but not ratified and so is not a party. The objectives are threefold, to minimize the generation of hazardous wastes, to dispose of such wastes as close to the source as possible, and to reduce the movement of hazardous wastes.
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Stockholm Convention on persistent organic pollutants
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persistent organic pollutants are particularly problematic as they resist degradation and bioaccumulate. The signing of the Stockholm convention took place in 2001, with a $20,mill gift from Canada to help developing countries reduce POPs. There are currently 151 signatories and 177 parties. The US has signed but not ratified. The parties must work to minimize total anthropogenic releases of POPs with the goal of ultimate elimination as well as taking appropriate measures to deal with the disposal of waste containing POPs.
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Organization for Economic Cooperation and Development
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an international economic organization of 34 countries founded in 1961 to stimulate economic progress and world trade. It is a forum of countries committed to democracy and the market economy, providing a platform to compare policy experiences, seek answers to common problems, identify good practices and co-ordinate domestic and international policies of its members.
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Rio Summit
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delegates from more than 120 nations met in Rio to agree on a set of principles and conventions to set the world on a new environmental course, and perhaps some day eradicate the pollution that is threatening our planet. There is no consensus on the real impact of the summit on worldwide environmental policies, however some claim it has already been a success just by having people bring the idea of sustainable development before hundreds of officials of developing nations. They also created a UN sustainable development Commission that will use public criticism and pressure to hold governments accountable for achieving their goals laid out in the summit.
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Agenda 21
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an 800 page blueprint for sustainable development covering a diverse range of issues inc. hazardous waste, human health, ocean pollution, and advancement for women. The heart of this document is a program of aid to Third World nations to help them clean up their pollution and replant their forests. UN’s Economic and Social Council reported a gap in four areas of implementation. Efforts to create sustainable development have been fragmented and continually fall short of set goals, the unsustainable levels of consumption have not been significantly altered, the policies and approaches lack overall coherence and the resources needed to better implement Agenda 21 have not been forthcoming. Despite these problems it remains a valid and important plan for international progress for some of the most important international issues of the 21st century.
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Congressional Oversight
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refers to oversight by the US congress on the executive branch including the numerous US federal agencies. It refers to the review, monitoring and supervision of federal agencies, programs, activities and policy implementation. Congress exercises this power largely through its congressional committee system. Oversight, dates back to the earliest days of the Republic, also occurs in a wide variety of congressional activities and contexts including authorization, appropriations, investigative and legislative hearings by standing committees; specialized investigations by select committees and reviews and studies by congressional support agencies and staff. The authority is derived from congress’ implied powers n the constitution.
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Regulated negotiation
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a new form of rule making where each concerned interest group and the agency itself sends a representative to bargaining session lead by a mediator. After the parties reach a consensus, that agreement is forwarded to the agency. The agency is then expected to publish the compromise as a proposed rule in the federal register and follow through with the requisite rule-making procedures, although it is not bound to do so. These resolutions are much more likely to be accepted than a rule handed down as the parties that bargained now have a stake in it, although it is not possible in all situations.
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Administrative rulemaking (formal, informal, hybrid)
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administrative agencies are granted the authority to perform the legislative function of making rules or regulations by enabling statutes that bring them into existence. In some instances the procedures for implementing the rule-making function are spelled out in the enabling act, when they are not, one of three alternative models for rulemaking may be used: informal, formal or hybrid. One reason for the creation of administrative agencies is their expertise and as they are not elected their rule making is not subject to political pressure and able to act more swiftly than Congress. Informal rulemaking – primary type as it is quicker and cheaper, proposed rule published in the federal register along with explanation of authority and description of how to participate in rule-making, interested parties can submit written comments and there is discretionary oral testimony and after considering the comments the rule is published in the federal register. Some find it unfair as people don't know what is being said so can’t defend them. Formal rulemaking – similar except a public hearing is held where witnesses give testimony and are cross-examined. Hybrid attempts to combine formal & informal rule making, submission of written comments and an informal public hearing.
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Judicial review
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the power to determine whether a statute is constitutional. Although not expressly stated in the constitution, the supreme court established the right in the landmark case of Marbury v. Madison, making the SC the final arbiter of the constitutionality of every law. Judicial review gives the court ultimate power to restrict the activities of the legislative and executive branches.
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Executive vs. Independent agencies
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executive agencies are sometimes seen as less stable in terms of their regulatory policies because the administrators of these agencies who are appointed by the president may be discharged by the president at any time for any reason. Whenever a new president is elected they will place their appointees in charge of executive agencies. Often referred to as cabinet-level agencies as they are often located in a cabinet-level department. A board of commissioners is generally in charge of an independent agency. The president also appoints commissioners of independent agencies but these commissioners serve fixed terms and cannot be removed except for cause. No more than a simple majority can be members of one political party. Serving fixed terms is said to make these agencies less accountable to the will of the executive.
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Administrative adjudication
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adjudication of individual cases is another important agency activity. The number of cases heard by Administrative law judges is extremely high. It begins with an investigation, filing of complaint, filing of answer and then either settlement by consent agreement or hearing before administrative law judge, initial order of administrative law judge, appeal to administrator or board of commissioners of agency, final order of agency and appeal to Circuit court of appeals. Most agencies rely on administrative agencies to enforce their regulations and are often preferable to a trial as they are quicker, cheaper, and less resource-intensive than a trial. Administrative agency can issue a compliance order that can contain daily penalties for noncompliance.
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List of agencies (Kubasek & Silverman)
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the department of the interior and its agencies – responsible for seeking an optimal balance between economic growth and the preservation of natural resources. Bureau of land management – largest landholding entity in the US responsible for managing ~270 million acres of public land designated for recreational use or conservation. US fish and wildlife services – responsible for safeguarding and improving wildlife and wildlife habitats. National park service - administers programs that conserve scenery, natural and historic objects, and wildlife in the national parks. Department of agriculture and its agencies – U.S. Forest service – manages the nation’s forests and grasslands. Department of labor and its agencies – occupational safety and health administration – responsible for promulgating and enforcing rules that affect health and safety in the workplace. Mine safety and health administration – develops and promulgates health and safety standards for mines.
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Tort law
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the first way that the US attempted to control pollution however it has numerous issues. Under tort law a typical action brought to control pollution is a nuisance case where there is an unreasonable interference with the use and enjoyment of another’s land. Clearly pollution of the air and water interferes with the enjoyment of one’s land. Following Boomer v. Atlantic Cement Company the court has set a precedent where economic harm caused by the nuisance will be balanced against the costs of the injunction. As pollution control is expensive it is unlikely that one will win. Also it allows pollution to go on unabated, it is difficult to achieve standing as under nuisance if it affects only one person it is a private nuisance but if it affects many it is a public nuisance and only a public official can sue which they are unlikely to do as the polluting companies often supply jobs and campaign contributions. It is difficult to prove one’s case as there may be several polluters in the area and resources are expensive, large companies can draw our the legal suit driving up the price. It is also reactive rather than proactive, it only happens after the problem is already there.
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Mediation
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differs from arbitration and litigation in that the mediator makes no final decision but is simply a facilitator of communication between disputing parties. It is an informal process in which the two disputing parties select someone to help them reconcile their differences. Parties generally enter into a contract that embodies the terms of their settlement. It is used for parties with an ongoing relationship, can be quicker and often environmental cases does not fit into the one party right or wrong mode of litigation. However sometimes it is not appropriate such as cases that wish to set precedents, want to get publicity and people cannot be forced to mediate or wish only to go through the process to waste time.
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Arbitration
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the resolution of a dispute by a neutral third party outside the judicial setting. The arbitrator frequently takes a much more active role in questioning the witnesses than a judge would. And the decision rendered by the arbitrator is legally binding. The decision may be appealed through the court system but the arbitrator’s decision is rarely overturned unless the judge feels that the arbitrator exceeded the bounds of his authority. Disadvantages is that the decision does not create a legally binding precedent or the party may want the publicity generated by a law suit.
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Pretrial procedures
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pretrial begins with informal negotiations, discussing the dispute with an attorney. Legal action is then initiated once a party decides that an informal resolution is not possible and the parties enter the pleading stage of the lawsuit. Pleadings are papers filed by a party in court and then served on the opponent. The basic pleadings are the complaint, answer, counterclaim and motion to dismiss. The wronged party initiates a lawsuit by filing a complaint in the appropriate court. Then the court serves a copy of the complaint and summons on the defendant, in order to give the defendant notice of pending action. The defendant then responds, filing an answer and possible counterclaim. And then pretrial motions begin, requests by a party for the court to do something.
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Discovery
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once the initial pleadings and motions have been filed the parties gather information from each other though the process of discovery. This is done via either interrogatories – series of written questions to the opposing party, requests for documents or the taking of a deposition. As a result of discovery, each party should have knowledge of most of the facts surrounding the case.
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Trial procedures
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the stages of a trial are jury selection, opening statements, plaintiff’s case, defendant’s case, conference on jury instructions, closing arguments, and post trial motions (p 66)
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Appellate procedures
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the court in which the case is appealed depends on the court in which the case was originally heard. To appeal a case the losing party must allege that a prejudicial error of law occurred during the trial. A prejudicial error is one so substantial that it could have affected the outcome of the case. When a case is appealed there is no new trial but rather the attorneys file briefs with the court and may present oral arguments but it is judges that render the decision. They may either affirm the lower court, or affirm but change the remedy, or reverse the decision or finally remand the case back to the lower court for a retrial. To appeal to the USSC it is either done by a writ of certiorari or an appeal of right.
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Ripeness
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Ripeness means that there exists a present controversy for which a decision is needed. Decision must have the capacity to affect the parties immediately.
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Case & Controversy
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courts render a decision only when there is a case or controversy before them, to count as a case or controversy must have three characteristics. First the parties must be in an adverse relationship to each other. Second, actual or threatened events must give rise to a live legal dispute. Third the courts must have the ability to render a final and meaningful judgment.
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Standing
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standing is the legal right to bring a lawsuit. One who has standing is said to be a proper party to pursue the action. One has standing when one is personally affected by the outcome of a case. The personal involvement is believed necessary to stimulate the party to put forth the best possible case. Sierra Club v. Morton lost the case due to lack of standing as they couldn’t show how the Disney park would affect their members. To have standing you need to have an actual or imminent injury-in-fact, it is able to be redressed by the legal action and it is attributed to the actions of the defendant.
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Attorney-Client privilege
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– in order to encourage a client’s honesty, the attorney-client privilege was established which provides that attorneys may not reveal information provided in confidence to them in conjunction with a legal matter without permission from the client. This extends to the attorney’s work product under what is known as the work-product doctrine.
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Venue
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once it is determined which court system has the power to hear the case, venue determines which of the many trial courts in that system is appropriate. It is a matter of geographic location.
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Concurrent federal jurisdiction
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many cases may be heard I neither the federal or the state court and are said to fall within the federal court’s concurrent jurisdiction so the plaintiff may file in the trial court of either system. There are two types of such cases, either if they involve a federal question or a federal treaty or if it is a diversity of citizenship. Diversity of citizenship means that the case involves citizens of different states. F a case is filed in a state court; the defendant has the right of removal, which means he or she may have the case transferred to federal court. If the plaintiff files in federal court, the case must be heard in that court. The ability to have the case heard in federal court is because a party may fear local prejudice in a state court or believe that a federal judge has more experience and knowledge and are better qualified and finally if the party feels it may be necessary to appeal to the USSC it will save a step in the appeals process.
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Exclusive federal jurisdiction
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a few types of cases may be heard only in the federal courts. Such cases are within the exclusive jurisdiction of the federal court system. Many federal environmental statutes grant exclusive jurisdiction to the federal courts.
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Subject matter jurisdiction
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the determination of which system may hear the case depends on subject matter jurisdiction. Subject matter jurisdiction is the power of a court to hear and render a decision in a particular type of case. Such jurisdiction is extremely important because when a judge renders a decision in a case over which the court does not have subject matter jurisdiction, the decision is void, or meaningless. The parties cannot grant the judge such jurisdiction; the law determines it. The state court system has subject matter jurisdiction over all cases not within the exclusive jurisdiction of the federal court system.
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State and federal courts
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in the federal court system the trial courts are the US district courts and the US is divided into 96 districts, each with at least one trial court. Almost all cases arising under the federal environmental laws will generally be heard in the federal district courts. Intermediate courts of appeals is the second level of courts in the federal system, made up of US circuit courts of appeals which hears appeals from all the district courts within its area. Court of last resort is the USSC, the final appellate court in the federal system, which also sometimes hears cases from the state systems or function as a trial court in very few cases such as suits against ambassadors of foreign nations. There is no uniform state court structure however, all states follow a general structure similar to that of the federal court system. In state court systems, trial courts or courts of original jurisdiction are distributed throughout the state. Courts of last resort is the last place to appeal often called the State Supreme Court, unless the case is accepted to the USSC.
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Adversary system
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said to be the best way to bring out the truth because each side will aggressively seek all the evidence that supports its position. With all the best evidence and arguments presented the truth should be easily discernible. Yet many people criticize it because each side is searching only for evidence that specifically supports its position and so will not bring evidence that helps the other side to court. It is also time consuming and costly as well as unfair as those with the more skillful attorneys are at a tremendous advantage. Thereby the system unfairly favors the wealthy. Also each side is looking to be a winner and thereby promotes strife between the parties breeding bad feelings.
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