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84 Cards in this Set

  • Front
  • Back
The phrase, “I am and always have been a conservative,” was written by whom and for what purpose?
Samuel Alito.

The phrase was found in an application letter for the position of deputy assistant attorney general in the Office of Legal Counsel (the official constitutional adviser to the president and the unofficial ideological command center during the Reagan years). It was a political appointment, so he his political and judicial philosophy had to be vetted.
After a decade on the Court, to what extent was Justice Scalia enjoying the experience?
Scalia was bored with job because he had no significant role in turning the court, and he put off justices instead of influencing them. He wasn’t very powerful because he wasn’t in the middle, like O’Connor or Kennedy. His legacy looked modest, his number of important majority opinions was very small, his theory of originalism wasn’t shared by most people on the court (not even Roberts, and Thomas was becoming more modern), the new conservative Justice Alito cited legislative history, which Scalia did not like to do. In essence, Scalia did not like his job.
How did Samuel Alito perform at his confirmation hearing?
What was his confirmation vote?
Terribly. He was a horrible witness, lacked charm, and was evasive about many questions.
The final vote in the committee was 10­8, but his confirmation vote was 58­-42. This was more than the 40 needed for a filibuster, but many of the senators voting no said that they would not support a filibuster, so his 58 got him the seat.
Since the mid-1990s, to what extent did Justice Scalia shape the Court’s majority opinions? How did his constitutional views (and personality) affect Justice O’Connor? How did Scalia view those who did not share his originalist approach to constitutional interpretation?
He changed them only modestly, almost insignificantly. He actively repelled O’Connor, pushing her toward her moderate, swing role. He also had a similar effect on Kennedy. He called people who disagreed with originalism “idiots”
How did the Court – and its opinions – change beginning with the 2006-2007 term?
Around that time, Alito had settled in and changed the Court because he was a strict conservative. Now, the conservatives had Scalia, Thomas, Alito, Roberts, and the swing vote Kennedy. Change seemed possible for the conservative movement. Among its goals were (1) expand executive privilege, as in Guantanamo Bay, (2) allow more religion in the public sphere, and (3) speed executions. Money = speech is also a conservative judicial movement goal. The Court was also issuing less opinions, as Roberts wanted to rule narrowly and unanimously, as well as write more.
In Hamdi v Rumsfeld, the executive branch wanted to avoid the writ of habeus corpus (which makes the government show you why they can hold you). Pre­Alito, the Court disagreed with Bush and upheld rights for citizens.
What happened to Justice O’Connor in her personal life after retiring from the Court?
Her husband had Alzheimer’s and stopped recognizing her in 2007, about a year after she quit. His brain deteriorated much faster than anyone had expected. He was moved to an assisted­living facility in Phoenix. However, she continued being active and involved in the community rather than staying sad, particularly in the judicial independence cause.
Generally speaking, how does international law compare with American law regarding abortion rights?
It is more restrictive of abortion rights, unlike gay rights or the death penalty.
After the confirmation of Justices Roberts and Alito, which justice came to control the outcome of numerous cases?
Usually Kennedy
Regarding Justice Ruth Bader Ginsburg, how did the confirmation of John Roberts as Chief Justice impact the direction of her judicial views? Which constitutional provision did she believe guaranteed women the right to terminate a pregnancy?
The confirmations didn’t impact the direction of her judicial views much, but she was quick to notice the reality that the court was not “impartial” and that the conservatives had been working toward their own agenda. She said that abortion rights protected women’s equality, not their privacy. They should have been based on a “woman’s
autonomy to determine her life’s course, and thus to enjoy equal citizenship stature” rather than a right to privacy.
What was Justice Ginsburg’s position in Ledbetter v. Goodyear Tire & Rubber Company (2007)?
She dissented, and actually wrote a dissent, which was highly unusual for her. The case infuriated her and she seemed to denounce her colleagues in her “fiery dissent.” She was angry because the prosecution only allowed 180 days of damages, rather than damages for the full time of discrimination. For years, the rule was that the victim would get compensation for the entire period suffered. However, the five conservatives ruled that the plaintiffs could be paid for discrimination only within the six­month statute of limitations.
Upon becoming Chief Justice, what were John Roberts’ professed goals for the Court?
Achieving more unanimity, write narrower opinions—judicial minimalism. In 2007, he failed each goal.
During the Court’s 2006-2007 term, approximately what percentage of the Court’s opinions were decided by a 5-4 margin?
Where did Justice Kennedy fit into this voting pattern? During the term, how active was Justice Clarence Thomas in oral arguments?
33%. Kennedy was usually the 5th member of the conservative bloc. It was almost impossible to win a conservative majority without him. He was the majority in every single one of 24 cases that were decided by a vote of 5­4 that term. Thomas was inactive, not asking a single question during oral arguments.
As discussed in the final chapter of The Nine, what physical change was made to the Supreme Court building?
The steps would be closed as an entrance due to security reasons. Visitors would enter from a side door at the base of the building, and allowed to leave via the marble steps.
CHAPTER XII: PROPERTY

What is real property?
Real property, or realty, includes land and things that are attached permanently to land. It is distinguishable from personal property in that real property is immovable.
What are examples of intangible personal property?
Property that has no physical form. This property is usually evidenced by some type of legal document that sets forth the ownership rights. A bank account is intangible property and the deposit receipt is proof of ownership. Money, stocks, and bonds are considered to be intangible property because they are paper substitutes for certain ownership rights. Trademarks, patents, and copyrights are also personal property, as are intagible rights, duties, and obligations, arising out of the ownership of physical objects. Includes the right to own, use, sell, or dispose of it as provided by law.
What is a copyright?
Trademark?
License?
Patent?
Copyright­ A grant of rights to an author from the federal government. Authors of literary pieces, musical compositions, dramatic works, photographs, graphic works of various types, video and audio recording, and computer software are protected against most unauthorized uses by placing a prescribed copyright notice on publicly disseminated copies of the work.

Trademark – A unique symbol, term, phrase, or design that a company uses to help customers identify and distinguish its product from competitors.

License – In property law, a temporary grant of authority to do specified things on the land of another.

Patent – A grant of rights to an inventor from the federal government. The inventor, or owner of the rights, has the exclusive right to make, use, license others to use, and sell an invention for a period of years (twenty years for most inventions). Patents are only granted for inventions that are beneficial, original, and involve ingenuity.
Fixture?
Fixture – An item of personal property that is the subject of both tangible and intangible property rights. It is a category of property between realty and personalty. For example when a dishwasher is classified as personalty when it is purchased at an appliance store. When it is permanently built into the buyer’s kitchen, however, it becomes a fixture.
What facts were at issue In re The Boston Beer Company Ltd. Partnership (Fed.Cir. 1999)? What commercial phrase was at issue? What did the court rule?
Boston Beer Company wanted to register a trademark, but the patent office denied this claim. The United States Patent office had said that this claim was merely descriptive. It argued that if such claims can be made about beer than it can be made about many industries. It said Boston Beer had failed to make the description definitive. Boston Beer Co said they had only instituted this trademark after they had won competitions in which someone said this about their beer. The Board of Patent office found their statement to be laudatory and puffery of advertisement. It said that all claims of such superiority should be freely available to all copetitors in any given field to refer to their products or services. They failed to apply a secondary meaning. The final court ruled that Boston Beer Co had not, on fact of case, met the merit of its burden to show that the proposed mark has acquired secondary meaning other than descriptiveness.
In re The Boston Beer Company Ltd. Partnership
What did the court rule?
The decision of the board was affirmed and Boston Beer Co. sloogan was incapable of registration as a trademark.

**Distinctiveness is an issue for federal trademark laws. The Boston Beer Company claimed it was the “best beer in America.” However, the court said that it wasn’t distinctive enough and as a result, The Boston Beer Company couldn’t use that phrase anymore.
When did Congress first pass copyright legislation? What changes did Congress make to copyright protection in the late-1990s?
Congress enacted its first copyright statute in 1790 and that statute provided authors with exclusive rights to their works for two fourteen year periods.

In 1998, Congress enacted the Sonny Bono Copyright Extension Act, which extended copyright protections even further, to the life of the author plus seventy years for works that were produced after 1978 and to a maximum of 95 years for works produced prior to 1978.
What is the “fair use” doctrine in copyright law?
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

Fair Use Law (pg 439)
1. Commercial v Educational use? (Educational usually allowed)
2. Nature of copyrighted work
3. Amount and substantiality of portion used
4. Effect of use upon potential market value of work
What did the court rule in BMG Music v. Gonzales (7th Cir. 2005), regarding the defendant’s downloading of multiple copyrighted songs?
What defenses did she present?
The court sided with BMG and allowed it to seek statutory damages, upholding the lower court ruling. She was charged for 30 songs, at $750 per count. The defendant claimed she was “sampling” them to see which ones she wanted to buy.

From Wikipedia:
Over a period of several weeks, the defendant downloaded some 1,370 copyrighted songs onto her computer using the KaZaA peer­to­peer file­sharing software, without authorization from the holders of the copyrights in the underlying compositions and sound recordings. The defendant owned compact discs containing some fraction of the songs that she downloaded. The parties disagreed on precisely how many of the defendant's downloads represented songs that the defendant already owned on CD, but it was undisputed that the defendant had never owned authorized copies of 30 of the songs she downloaded. The defendant retained at least these 30 songs on her computer's hard drive even after deciding not to purchase them on CD.
What did the court rule in BMG Music v. Gonzales (7th Cir. 2005), regarding the defendant’s downloading of multiple copyrighted songs?
What defenses did she present?
The court ruled that it was not fair use because she was using them for noneducational, commercial use. It was not for nonprofit, and it hurt the music industry and artists
because she definitely kept the songs even though she said she would buy the ones she wanted to keep. Gonzalez could not call wholesale sampling a form of fair use. Copyright laws let authors make their own decissions about how best to promote their works; copiers such as gonzalez can not ask courts to second guess the market and call wholesale copying fair use. The district court did not abuse its discretion in awarding prospective relief.
What did the court rule in In re Estate of Clayton Gulledge (Crt.App.D.C. 1996), regarding the effect of a transfer by one of two joint tenants of his interest to a third party (without the consent of the other joint tenant)?
The question was whether the estate was given in joint or in common to the son. If joint, then that meant that interest would need to be gotten at the same time. However, this was not the case since ownership was obtained at different times—the estate’s interest was in common. The transfer of one of two joint tenants to a third party, by this logic, is not permissible.
What is a joint tenancy and what are its characteristics? Can that interest be passed via inheritance?
Joint tenancy is when each tenant takes an equal, undivided interest in the ownership of property from the same source and at the same time. Includes a right of survivorship, which means that a deceased joint tenant’s rights automatically pass to the surviving joint tenants and not through the deceased’s will.
No, it cannot be passed via inheritance. Upon a death, the rights will be transferred equally to the other surviving joint tenants.
What is a tenancy in common and what are its characteristics?
Can that interest be passed via inheritance?
Sold?
Gifted?
Tenancy in common is similar to join tenancy; however, there is no automatic passing of the deceased’s rights to the surviving tenants (right of survivorship). Instead, the deceased’s rights pass according to his/her’s will.
Yes, they can be passed via inheritance, and can be sold, inherited, and given as a gift.
What is a tenancy by the entirety?
A tenancy by the entirety is limited to married husbands and wives and is ended only upon death, divorce, or mutual consent. When a tenant spouse dies, title passes to the surviving spouse. If a divorce occurs, the tenancy is converted into a tenancy in common.
With respect to community property, what are examples of separate property?
Rights that are acquired prior to marriage, spousal inheritances, and gifts received during the marriage are all separate property. However, community property states differ on whether earnings from separate property should be treated as community property.
What does the Tenth Amendment provide?
The Tenth Amendment reserves to the states any power not delegated to the federal government in Article I.
What governmental action triggered the dispute in Bowles v. United States, 31 Fd. Cl. 37 (1994)? What is the legal test for determining when a governmental regulation results in a constitutional taking of private property?
What did the court ultimately rule in the case?
Was there a compensable taking?
The Takings Clause started this entire issue.
Professor Wall was involved in, as counsel to Bowles. Bowles was denied a permit to build on a plot of land (by Marine Corp?). The government can regulate the land, but not so much that land is worthless. That is the legal test—it is only really possible to win if you can prove that the land is rendered useless because of governmental regulations.
The case involved proving that the land was only useful as a single family residence. Then, Bowles and Wall had to prove that the stilt approach (that would abide by the regulations) would be too expensive, and cost almost as much as the land if used per year. This was achieved by multiple calculations about water used, costs in cleaning/disposing of the water, The only other method that would cost less money than the land itself was the septic tank system (the whole reason for this regulation and case), and this was proven.
What governmental action triggered the dispute in Bowles v. United States, 31 Fd. Cl. 37 (1994)? What is the legal test for determining when a governmental regulation results in a constitutional taking of private property?
What did the court ultimately rule in the case?
Was there a compensable taking?
The court said that Bowles could give up the deed and be compensated because his land was rendered useless by the government regulations.
What is eminent domain?
Which amendment to the United States Constitution addresses it?
Eminent domain is the right of the government to take private property for a public purpose over the objection of a landowner. This governmental right is limited by the Fifth
and Fourteenth Amendments to the federal consitituion, which provide that government must pay just compensation to the objecting landowner whenever property is taken to benefit the public by way of the power of eminent domain.
The Fifth Amendment’s Taking Clause provides that whenever the federal government takes property to benefit the public, it must pay just compensation.
What facts were at issue in Kelo v. City of New London (2005)?
What did the Court rule?
What was the reaction of numerous States to the ruling?
State of Connecticut and New london tried to revitalize an economically distressed area of New London. The redevelopment plan sought to use the power of eminent domain to acquire the title to parcels owned by persons who rejected the city’s offers to buy them out. Kelo was unwilling to sell. She claimed the takings clause prohibited New London from acquiring her property by way of eminent domain in order to implement an economic development plan.
Justices Disagreed over whether to commit the federal judiciary to the Fifth Amendment’s taking clause to establish national standards for the nation with respect to potentially endless battles between developers and landowners. Stevens said the Takings Clause only required a condemned parcel to be used for a public purpose if the taking of the private property occurred pursuant to a carefully considered development plan.
What facts were at issue in Kelo v. City of New London (2005)?
What did the Court rule?
What was the reaction of numerous States to the ruling?
Court rejected putting a “one size fits all” affect on taking for economic development. He left it up to the states to apply this rule. The reaction was loud and negative. States increased the restrictions on the use of eminent domain.

*Land was being taken for third party use such as malls, department stores, etc. It was supposed to only be taken for public use, but the City of New London won the case. The Court said that the issue was to be left up to the states, in an attempt to give more power to the residents of the state. However, the people didn’t like that because they thought that the court “didn’t do anything/not enough” or that it was ignoring the issue. (response was negative not positive)
What did the court rule in Goldstein v. Urban Development Corporation (Crt.App.N.Y. 2009), regarding the taking at issue?
The taking was constitutional, because the legislature was allowed to define “public use.”
What is a private nuisance?
Who can pursue the cause of action in court?
Private nuisance is a tort that requires proof of an injury that is distinct from that suffered by the general public. (It differs from trespass because the offensive activity does not occur on the victim’s property).

A party injured by a private nuisance can obtain both damages and injunctive relief.
What is a fee simple?
Fee simple ­ A person who holds an estate and can pass his or her interest in the estate onto heirs. This represents the maximum ownership right to land that is permissible by law.
What is a life estate?
Life Estate­ An estate owned by a person who has an estate in land for the duration of his or her life. Life estates cannot be passed on to heirs.
What is a leasehold?
A leasehold is a possessory interest in real property for a specified period of time (often a month or year) held by a person who leases property.
What is an easement?
An easement is a nonpossessory property right in land; it is one person’s right to use another person’s land. Easements are often classified as positive or negative. An affirmative easement would exist where landowner A conveys to B the right to lay a pipeline across A’s land. A negative easement would exist where A conveys part of her land to B and retains an easement that forbids B to burn trash or plant trees within five years of A’s Property line.
What is adverse possession?
What is it also known as?
What are the elements of adverse possession?
Who has the burden of proving the elements necessary to obtain title via adverse possession?
Does the law favor the landowner or the adverse possessor?
Adverse possession is one whose possession of another’s realty is open and notorious, hostile, adverse, and continuous for a legally specified period of time (often 20 years) and
can bring a “quiet title action” in court at the end of the time period and, if successful, obtain a marketable title to the property.

It is also known as “Easement by Prescription”

The adverse possessor has the burden of proving the elements necessary to obtain title via adverse possession.

The law favors the owner of the land.
What right does a finder of lost property have with respect to the property?
A finder of lost property has title that is good against everyone except the true owner. If the true owner fails to claim the item, the finder takes title, and the true owner’s ownership rights are severed.

A finder has a duty to make reasonable efforts to locate the true owner, although no expenses must be incurred to satisfy this obligation.
What did the court rule in Steuck v. Easley (Crt.App.Wis. 2010)?
The rightful owner of the land used it was a nature reserve. Steuck had the burden of proof that the owner was not using it (clear, reasonable proof). However, he lost because Easley said it was a nature reserve for him and he assumed that Steuck was a trespasser he didn’t want to confront. Presumption that rightful owner is using the land and should keep it. The court will always give the winning of the case to the owner of the land.
What facts were at issue in Favorite v. Miller (Ct. 1978)? What did the court rule?
This case concerned a dispute between ownership of a piece of a King George statue found on a piece of land (owned by plaintiff) by the defendant. Defendant heard that there may be pieces of the statue on the Davis Swamp land. He used a metal detector to find the item. He sold metal detectors for a living in addition. He found the piece, dug ten feet to obtain it, and then sold it to a Museum. Owners of Davis Swamp contested that he was not the rightful owner to the piece. In theory he was trespassing because he knew that it was not his land, had intent to find, and to remove the piece. The piece also contributed to publicity, which increased the sales of his metal detectors. Lower court ruled that Defendant was a trespasser on the land, and was not entitled to the typical finder provisions awarded in typical finders keepers cases. Court concluded that the defendant, with intent, trespassed on the property of Davis Swamp, and was not entitled to the King
George’s statue piece.
What facts were at issue in Favorite v. Miller (Ct. 1978)? What did the court rule?
The lower courts decision was affirmed based on the idea that the Defendant’s trespass was neither technical nor trivial. Concluded that the fact that the property found was embedded in the earth and the fact that the defendant was a trespasser as sufficient to defeat any claim to the property which the defendant might other­wise have had as a finder.
What facts were at issue in Kenyon v. Abel (Wy. 2001)? What did the court rule?
Defendant purchased the piece of art work at thrift store, but the piece was mistakenly given to the Salvation Army on accident. Conversion occurred. Painting was from an estate, mistakenly taken by the Salvation Army. Abel inherited all property and had rightful title to everything in the estate. Kenyon purchased the painting at the thrift store for 25 dollars. Abel sued on grounds that the painting was given via replevin or conversion. Under the UCC Codes, the DISTRICT court concluded that Abel had no intent to give the painting to the Salvation Army. Court concluded based on facts that the painting was given involunatirly to the Salvation army. The court ruled in favor of Abel based on the law of gifts and the law of conversion.
To be a gift: a present intention to make an immediate gift; actual or constructive delivery of the gift; acceptance of gift by recipient.
What facts were at issue in Kenyon v. Abel (Wy. 2001)? What did the court rule?
The court ruled that the sale of the painting by the SA constituted conversion: Abel had legal title as hier to the painting; Abel possessed the painting at the time it was removed; SA deprived Abel satisfaction and enjoyment of painting; Abel demanded return of the a painting and Kenyon refused; Abel suffered damages through the loss of a valuable asset without compensation.

**An expensive piece of art was given away even though Abel said he wanted to keep it (he had the rightful title). Abel sued for conversion. Was it a gift? No, because there was no intention to give it. Was it a voluntary transfer? No. The recipient out of luck, because there was no rightful title by the Salvation Army to sell the painting. Since the Salvation Army possessed a void title over painting, original owner was entitled to recover the painting from the third party purchaser.
What are the elements needed for a gift to be legally effectuated?
The law requires that a donor (giver of gift) make an actual or constructive delivery of the item to the donee (receiver of gift). The donee must accept for a valid gift to occur.
What rights does a good faith purchaser of converted property (i.e., property acquired by conversion) have against the true owner of the property?
A good faith purchaser has the right to title until proven otherwise in a converted property dispute.

Doctrine of Accession: if converter has acted in 1) good faith and 2) if the value of the object has increased dramatically, it is possible that the converter has acquired right to chattel by application of this doctrine. This is not to say that the converter is not liable, but only that the Π’s options are limited in that he/she can only pursue and action in trover.
What is a mutual-benefit bailment?
What legal burden does it place on the bailee?
A mutual­benefit bailment is when property is given to another without relinquishing title. Both parties recieve a mutually beneficial propsect through this turn of events. Such as leaving shoes in for repair; bailor gets fixed shoes while bailee gets money in return for services. Title of shoes is never transferred to bailee at this point, however.
The bailee has the duty to exercise reasonable care toward the bailed object. The bailee is not allowed to use the bailed object for his benefit, but may work on the object for the benefit of the bailor.
The bailor’s duties include paying the bailee and warning the bailee of any hidden dangers associated with the bailed object.
CHAPTER XIII:
ADMINISTRATIVE LAW and ADMINISTRATIVE AGENCIES

CHAPTER XIII:
ADMINISTRATIVE LAW and ADMINISTRATIVE AGENCIES

Can cabinet secretaries (such as the Secretary of Defense) be dismissed by the President at any time? What about the head of an independent federal agency?
Yes, cabinet secretaries are appointed by the president. However, congress can impose removal limits for people in independent federal agencies (such as the president can’t fire without a cause).
Do regulations passed by a federal administrative agency have the same legal force as legislation passed by Congress?
Yes, but Congress must give them that power via enabling acts. The substantive rules are the most important, as they are direct acts with notice and comment periods before they are finalized.
In terms of the ability to investigate, how do administrative agencies differs from courts?
Congress doesn’t have the manpower or specialized knowledge for certain things, so it created these agencies. Courts have to wait for an offense/complaint to be brought to them (can’t do any fact­finding), but the agencies can take initiative.
What did the court rule in Inspector General of U.S. Department of Agriculture v. Glenn (11th Cir.), regarding the federal administrator’s power to issue subpoenas?
The court affirmed the district court’s decision to enforce the Inspector General’s subpoenas.
Must an individual serving as an administrative law judge be a member of the federal judiciary?
No, they are NOT members of the federal judiciary. They perceive their function as that of implementing and administering a legislative purpose rather than as judges impartially deciding between two litigants.
What State ballot measure was at issue in Gonzalez v. Oregon (2006)? What was the substance of the “Interpretive Rule” issued by the United States Attorney General? Did the Court hold that the Attorney General had to power to issue the rule?
The Oregon Death With Dignity Act (ODWDA) was approved in a 1997 ballot. It legalized physician assisted suicide, and was very organized at the state level. However, it conflicted with the federal Controlled Substance Act of 1970 because level I drugs (most dangerous) were being administered to the patients wanting the right to die.
The interpretive rule by the attorney general basically said that using controlled substances for physician assisted suicide was illegitimate and unlawful, and was not a recognized medical practice.
Sometimes, agencies can interpret laws, but only for its own rules. The court ruled that the attorney general overstepped his bounds because he was trying to interpret Congress’s legislation. There was no authorization for him to change the law and “try to create a crime”. 6­3 vote.
Generally speaking, is judicial review a major factor in administrative law? Why or why not? How are questions of law determined? Questions of fact?
No, it is a very minor aspect. Courts do not want to get involved in overturning laws, unless there is compelling evidence. They also exercise restraint in highly technical matters. Questions of fact are usually handled by judicial deference, to check if proper procedures were followed (?). Must contact the EEOC, then submit evidence, then a hearing officer will submit any additional evidence and then a letter okaying the lawsuit will be issuied. Questions of law are more likely to be analyzed by the court.
What did the court rule in National Mining Association v. Mine Safety and Health Administration (D.C.Cir. 2008), regarding the legality of the final administrative rule adopted by the federal agency?
It was okay because although there was no specific notice and comment period, the hardened room option came up during the process of discussion, so it came about by a logical method.
What did the court rule in Ahmed v. Sebelius (D.Mass. 2010)?

In this case, Ahmed was a dermatologist who was making illegal money off of medicare. He was charged with fraud, because he backdated their visits and did not charge properly. His billing privileges were revoked because he plead guilty to obstruction (but not to fraud).
The Court denied the plaintiff’s cross­motion for judgment on the pleadings, and granted the defendant’s motion on pleadings or for summary judgment.
He appealed, saying that the billing privileges were unrelated to the charge for obstruction. He had to contact the NHIC (National Health Information Center), then request that HHS (Health and Human Services) conduct an administration law hearing, appeal to the HHS board of appeals, and then get judicial review.
There was an enabling statute that said that the physician had to apply, then reapply every 5 years for medicare billing privileges. Ahmed claimed that the felony of obstruction was about a failure to cooperate, not about theft.
However, the court ruled that the obstruction was related and could interfere with medicare, so he was not granted billing privileges.
With respect to Due Process vagueness challenge, how are economic regulations dealt with?
The Supreme Court has recognized, on many occasions, that where it would be impractical to provide predeprivation process, post deprivation process satisfies the
requirement sof the Due Process Clause. An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.
What did the Court rule in Dun & Bradstreet v. Greenmoss Builders (1985), regarding the constitutional protection afforded a consumer reporting agency’s credit report?
The Supreme Court held that a consumer reporting agency’s credit report warranted reduced constitutional protection because it concerned no public issue. The protection to be accorded a particular credit report, the court explained, depends on whether the reports content, form, and context indicate that it concerns public matter. In other words, if the report is in favor of increasing solely the credit agency, then there is little constitutional protection.
What did the court rule in Trans Union Corporation v. Federal Trade Commission (D.C.Cir. 2001)?
It ruled against the Trans Union Corporation, saying that it involved credit information (which made it illegal according to the Equal Credit Act). It could no longer collect information about consumers and sell it to third parties. Trans Unions petition for review was denied. Congress had no obligation to choose the least restricitve means of accomplishing its goals, because FCRA is not bound by Strict First Amendment Scrutiny. Trans Union Corporation had millions of continually updated extensive credit histories, and thus was unique and not like other Consumer agencies. Under the First Amendment underinclusiviness challenge, neither a perfect nor even the best available fit between means and ends is required.
CHAPTER XIII:
ALTERNATIVE DISPUTE RESOLUTION

Approximately what percentage of civil cases filed in federal district court actually go to trial?
~1%
What legislation did Congress pass in the late-1990s dealing with alternative dispute resolution (“ADR”)? What did the statute mandate with respect to: (i) who could be a mediator/professional neutral; (ii) under what circumstances a party could be ordered to mediation; and (iii) under what circumstances a party could be ordered to arbitration?
The Alternative Dispute Resolution Act (ADRA) was passed in 1998.
Which major States have implemented statewide ADR systems?
Major states such as California, Florida, and Texas, have statewide ADR systems.
In terms of ADR, can a party be forced to forfeit their right to a trial by jury?
No, litigants can be required to participate in ADR but reject those solutions in favor of jury trial. However, there is a lot of pressure to resolve the dispute.
Where in the Constitution is the right to a trial by jury in a civil case located?
Right to trial by jury in civil case is in 7th amendment, but it has not been incorporated
What facts were at issue in In re Atlantic Pipe Corporation (1st Cir. 2002)? What did the court rule?
Court ordered non­binding mediation between Pipe Co and Puerto Rico Aqueduct and Sewer Authority concerning the breakage of a pipeline. APC alleged that the district court did not have authority to require mediantion, and could not force APC to pay a share of ht eexpenses of the mediation. There are four fules followed to order mandatory non binding mediation of pending cases:
1. The courts local rules
2. Applicable Statute
3. Federal Rules of Civil Procedure 4. Court’s inherent powers
Puerto Ricos Local rules contoin only a single reference to any form of ADR. The court held that the mediation order fell outside of Puerto Rico’s Rule V for mediation, because it occurs before a private mediator, not a judicial officer. There is no statute in Puerto Rico that requires mandatory private mediation however. The complexity of the case was too much for pure mediation. Also, APC alleged the court appointed mediator was a violation and per se.
What facts were at issue in In re Atlantic Pipe Corporation (1st Cir. 2002)? What did the court rule?
The court order did not allocate costs or time, and thus did not meet substantive safeguards that are required in a mediation order.


**Remanded to lower court and ruling vacated, Puerto Rico local rules didn’t really deal with mediation. Constitution/Federal ruled don’t really control state courts. The Court had inherent power to control docket, so it ruled mediation necessary. BUT there were time and money limits to it. For example, the ADR process couldn’t be excessively expensive.
Who participates in a settlement conference?
Judges and the attorneys participate. (Do parties also participate?) ­ I DON’T BELIEVE SO.
Generally speaking, has Congress historically supported the arbitration of disputes involving commercial transactions?
Historically, no it did not. However, the Federal Arbitration Act of 1925 (FAA) established a national policy favoring the arbitration of commercial transactions. This has expanded over the years and the Supreme Court has generally gone along with Congress and the executive branch in supporting the expansion of this and other forms of ADR.
What does Rule 16 of the Federal Rules of Civil Procedure provide?
In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as:
(1) expediting disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation; and (5) facilitating settlement.
IN OTHER WORDS:
­The court may take appropriate action with respect to settlement and the use of special procedures to assist in resolving the dispute when authorized by statute or local rule. Courts may force arbitration or mediation if a statute is alotted in a particular state.
Generally speaking, has the Supreme Court favored or disfavored the expansion of arbitration and other forms of ADR?
Supported, favored
Are arbitrations awards always binding? Are the hearings always open to the public? How to the parties agree to the parameters of an arbitration? Must the agreement be in writing to be enforceable?
Arbitrations are binding once the arbitrators make a decision. Mediations, however, are not always binding. There was an exception in the Allstate case, where they referred to the arbitration as binding. The hearings are generally not open to the public. Yes, the agreement must be in writing in order to be enforceable, since there is no jury trial. Parties usually agree to parameters of arbitration prior to the arisal of a controversy. Usually in a contract or some form of a binding agreement that states arbitration will be used in a case of controversy.
What facts were at issue in Sears Authorized Termite and Pest Control, Inc. v. Sullivan (Fl. 2002)? What did the court rule?
Someone got bitten by a spider and got a personal injury. They sued for fraud, negligence, inducement. Sears had arbitration clause. Does it cover this personal injury claim? If narrowly construed, no, because not a breach of contract. However, it WAS deemed to cover it because the spider was related to the pest control contract. Sullivan must go to arbitration.
What did the court rule in Cable Connection, Inc. v. DIRECTV, Inc. (Cal. 2008)? With respect to the potential for appellate review of an arbitration award, how did the State law differ from the federal law?
Here, the parties agreed that “[t]he arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.” This contract provision is enforceable under state law, and we reverse the contrary ruling of the Court of Appeal.
The contract directs the arbitrators to apply California substantive law, but specifies that the arbitration proceedings are to be governed by federal law and the rules of the American Arbitration Association (AAA).2 The arbitration panel, in a split decision, decided that
classwide arbitration is a substantive right under California case law, and that AAA rules allow classwide arbitration unless the arbitration clause forbids it. We conclude that the majority arbitrators misapplied both California law and AAA rules, and that it is proper to return the matter to them for reconsideration under the proper legal standards.
What did the court rule in Cable Connection, Inc. v. DIRECTV, Inc. (Cal. 2008)? With respect to the potential for appellate review of an arbitration award, how did the State law differ from the federal law?
The contract allows enforcement proceedings to be brought in either state or federal court. Because the parties proceeded in state court under the CAA, we conclude that judicial review of the award is governed by state law, though the arbitration proceedings are governed by federal procedural law and AAA rules under the terms of the contract.

**In California, parties could have agreement for limited appeal of arbitration, whereas they couldn’t in federal laws.
Pursuant to the Federal Arbitration Act (“FAA”), what are the grounds for a court vacating an arbitration award?
1. Procured by corruption, fraud, unjust means
2. Corrupt arbitration
3. Prejudice by arbitrators
What facts were at issue in Allstate Insurance Company v. Mottolese (Ct. 2002)? What did the court rule?
The issue at hand was whether the trial court violated the underlying defendant’s constitutional right of access to the courts. It was not, and the sanction on the plaintiff was lifted. Trial court referred the case to nonbinding arbitration. Court annexed arbitration program. Arbitrator ruled in favor of Morgan and damages of 2450. Distasio asked for trial court to vacate arbitration award and restore the case to the jury trial list. Plaintiff, had said he would pay no more than 2050 dollars for damages to defendant in a pretrial conference. This was seen as the court as bad conduct and in bad faith. Court ruled that an issue of 400 dollars difference was a drain on judicial resources and tax payers money. Because Distasio properly exercised his statutory right to a trial de novo and the plaintiff properly complied with the trial court's request to be present at the pretrial hearing, court concluded that the trial court abused its discretion when it imposed sanctions.
What facts were at issue in Allstate Insurance Company v. Mottolese (Ct. 2002)? What did the court rule?
Writ of error was granted and the matter was remanded with direction to vacate the order of sanctions.

**There was a “nonbinding arbitration” (which may be mediation). Judge found Allstate in contempt for not settling over a $400 difference. It was wasting the courts’ time of sqaubblingoversuchasmalldifference. However,thiswasnotallowed(youcan’tforce a settlement). Can sanction if mediation required.
What is a mediator’s goal at a mediation?
Are mediations always nonbinding?
How structured is the mediation process?
Mediation focuses on settlement, not victory at trial. They have no formal power to make a decision: their role is that of a facilitator. There is no formal hearing. It is informal, unstructured, and inexpensive. They are almost always nonbinding.
What is a summary jury trial?
A minitrial?
Summary jury trial: --operates pursuant to local court rules. Usually for damage cases

Minitrial: isn’t a trial--parties make presentations. Usually for business disputes. It is basically a mock trial. Presenters will educated the managers about the dispute, and let the managers make the decisions on their own. They can often devise creative solutions to resolve the dispute outside of legal judiciary actions. Some courts schedule minitrails only after parties agree to participate, or they are done before a trial and have a larger scope of discovery and evidence.
What facts were at issue in Team Design v. Gottlieb (Crt.App.Tenn. 2002)?
What did the court rule?
The band, Baille and the Boys, thought that their producer, Inersound would pay for artwork and album covers for their new album. However, a letter unbeknownst to the band, had been deliverd by their manager saying that the Bonaguras (the band) would pay for the artwork and cover album. The art wor company was never paid, and filed suit against The Band’s Manager. The parties agreed to binding mediation EVENTUALLY after a trial but were not aware of the procedures to be used in the mediation process. The judgement was issued and Team Design stated they did not know the procedures that were going to be used in the mediation. The court ruled that the Trial Court did not have the right to offer a binding mediation (mediations can not be binding, only arbitration), and that the mediation was improper because the trial judge was the mediator which is not allowed in a mediation. It must be a neutral third party. These facts were substantive and affected the outcome of the mediation.
What facts were at issue in Team Design v. Gottlieb (Crt.App.Tenn. 2002)?
What did the court rule?
The court ruled that the mediation decisions would be unenforced and sent the parties back before a new trial court.