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8 Cards in this Set
- Front
- Back
ADR (threshold questions)
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5 threshold issues that Cts will first decide
- Did the parties agree to arbitrate? --- Agreement must be in writing --- Agreement must be clear, explicit & unequivocal - Is the dispute w/in the scope of the arbitration clause? --- Very broad = Arbitration can decide virtually anything - Is the arbitration clause valid? --- Doctrine of severability: Validity of arb clause is determined separately from the validity of the overall K in which the arbitration clause appears --- The only way to invalidate a clause: Fraud, duress/coercion, or a matter contrary to public policy - Is there an express condition precedent to arbitration, and has it been complied w/? - SoL |
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Judicial review of ADR awards
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- Corruption, fraud, misconduct in arb proceeding
- Bias of arbitrator who was chosen to be neutral - Arbitrator exceeded its power (but usually arbitrators have virtually unlimited power (unless K otherwise)) |
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A78
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Special proceeding for judicial review of action/inaction by gov't/quasi-gov't officers/bodies
- Mandamus to compel - Prohibition - Certiorari - Mandamus to review |
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Mandamus to compel
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Purpose: To compel the performance of an act req’d by law – an act as to which no discretion is involved
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Prohibition
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Purpose: To stop a judicial officer from exercising power that exceeds the officer’s lawful jur’n (excess must be “gross” in nature)
- E.g. of “gross excess”: ∆ gets “not guilty” verdict but judge allows 2d trial for same crime; judge ordering opposing parties to depose witnesses neither party wishes to depose |
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Certiorari
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Purpose: Challenge the results of a “trial-type” hearing conducted by an administrative agency
- Trial-type: Hearing in which testimony was taken under oath w/ right of CE --- E.g.: State education dept’s revocation of Dr’s license to practice medicine - Persons w/ a vested property/quasi-property right are entitled to a trial-type hearing prior to divestiture; certiorari is the form of judicial review of agency Standard: Ct must uphold agency decision if it was supported by substantial evidence |
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Mandamus to review
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Purpose: Review any type of admin action not covered by categories 1-3; Most often, mandamus to review is used to challenge agency determination made w/o a trial-type hearing
- E.g.: Zoning variance denied by local board Standard: Ct must uphold agency determination unless it was arbitrary & capricious |
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A78 procedure
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- A78 proceedings are to be brought in NY Supreme Ct
- SoL: 4 mos from when agency action is final & binding - Relief available: --- Declaratory/injunctive --- Damages are recoverable if they are incidental to the main relief being sought |