While television and the media dramatize and glamorize murder trials and other violent crimes, these consist of only a small fraction of the law. Even if a person has never stepped foot in a courtroom, laws and regulations are encountered in everyday life. Law is what keeps and maintains order in society. Laws exist in the form of statutes and regulations at the federal, state, and local level. There are thousands of laws touching upon nearly every topic imaginable. Laws are the product of legislation, an elected representative of the people that decides what conduct should and should not be permissible. It is thus the collective American people as a whole, acting through their elected representatives, who propose and pass laws.
The US system of government is based on checks and balances. To ensure that no one branch became too powerful, the Constitution established the three branches of government: the Legislative branch, the Executive Branch, and the Supreme Court. The Supreme Court is the only court that was specifically created by the Constitution. The Constitution provides in relevant part, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish” (U.S. Const. art III, sec. 1). As the nation’s population has grown and society ahs developed, Congress has created lower federal appellate and district courts.
The purpose of US courts is to resolve disputes between parties. Putting aside criminal cases, the goal of the courts is to sort out the facts and reach a fair and impartial solution. Courts play a particularly important role in the business environment. Each day, thousands of contracts are formed between businesses. When a party breaches a contract, the aggrieved party can sue the breaching party in a court of law. The law with regards to breach of contract places great emphasis on accountability and upholding the ideals of justice, fairness, and equity (Feldman, 2009, p. 189). A court has the power to award both legal and equitable remedies. Legal remedies include money damages. Equitable remedies, on the other hand, provide the court with more flexibility to tailor a remedy to the specific situation. Some common examples of equitable remedies include restitution, specific performance, and an injunction.
While the federal court structure and state court structures are largely similar, key differences do exist. First, the US Supreme Court declares the “law of the land.” It is binding on all lower courts. The highest courts in each state, in contrast, only have binding authority with respect to cases that arise under state law in that specific state. Other differences lie in jurisdiction. Federal courts only have jurisdiction to hear cases in two instances. First, federals court have jurisdiction to hear cases between citizens of different states (Larsen et al., 2015, § 103). This is known as diversity of citizenship jurisdiction. Second, federal courts have jurisdiction to hear cases when the amount in controversy exceeds a specified monetary amount (Larsen et al., 2015, § 103). For cases that do not fall under either of the two federal jurisdictional requirements, federal courts lack jurisdiction to hear the case.
The concept of judicial review has its roots in the US Supreme Court case Marbury v. Madison. In this 1803 case, Chief Justice Marshall boldly declared “It is emphatically the province and duty of the judicial department to say what the law is” (Marbury v. Madison, 1803, p. 177). The idea of judicial review is that courts review the actions of the legislative and executive branch for compliance with the constitution. If a statute does not comport with the constitution, or if the President takes measures that violate the constitution, it is the court’s responsibility to declare such action to be unconstitutional. While the court reviews the actions of the other branches of government, there is no branch of government ensuring that the court’s conduct remains in constitutional step. It is arguable that the self-proclaimed power of judicial review renders the Supreme Court as the most potent branch of government.
The process of bringing a case to court is extremely time consuming and expensive. If the case makes it all the way to trial, it is even more costly. With attorney fees, court costs and filing fees, expert witnesses, reports, transcripts, and other miscellaneous expenses, a case worth a relatively small amount can soon add up to thousands of dollars. For many people, the time and money it takes to file a lawsuit and navigate the court system is simply no worth the effort. Because of the enormous time and expenditures associated with the court system, forms of alternative dispute resolution (ADR) have become increasingly popular.
ADR offers an attractive alternative to the traditional court process. Over the past decade, the nation has witnessed a significant increase in the number of ADR programs used to settle disputes (Valentine-Rutledge, 1995, § 1). Because ADR affords an expedited forum to settle disputes between parties, it has become ingrained in many standard form contracts that govern business transactions. In many contracts, the parties agree by signing to submit any disputes to ADR, usually in the form of arbitration. These clauses are important because parties, by singing the document, agree to waive the right to sue in a traditional court forum in lieu of arbitration or some other type of ADR (Geibelson and Conn, 2006, p. 35). It is the rare case that a court will refuse to enforce an arbitration clause among the parties (Geibelson and Conn, 2006, p. 35). As there are inherent pros and cons in giving up the right to sue in regular court, a prudent business person should read a binding arbitration clause with a careful eye.
Arbitration is one of the most frequently used forms of ADR. In arbitration, the parties submit the dispute to the arbitrator, who issues a final decision that is usually binding. The arbitrator is a neutral 3rd party decision maker. Some advantages to arbitration over court is that arbitration is less expensive and the rules allow for much greater flexibility. The rules of evidence and proofs do not apply in arbitration, and the entire arbitration process can be hand-tailored to suit the parties’ needs. Another form of ADR is mediation. In mediation, a mediator is a neutral 3rd party who helps the parties discuss a solution. The major difference between mediation and arbitration is that mediation is not binding on the parties.
I currently work at a large public corporation. There are many overlapping state and federal laws that affect my place of employment. Because it a large employer, it is subject to federal employment discrimination laws. Federal law prohibits employers from discriminating on the basis of “race, color, religion, sex, or national origin” (Civil Rights Act of 1964, 1964). There is also emerging state anti-discrimination law that fills in the gaps of what is not covered under federal law. State anti-discrimination law prevents discrimination of the basis of sexual orientation or gender identity.
The corporation I work for has publicly traded stock on the New York Stock Exchange (NYSE). Because the corporation buys and sells securities, the corporation is subject to the rules and regulations promulgated by the Securities and Exchange Commission (SEC). These rules require the corporation to register such securities with the SEC and to file various reports and disclosures with the agency.
As a large corporation, the corporation must also comply with tax laws at both the federal and state level. The corporation is required to file its federal income tax returns as a C corporation and must make appropriate financial disclosures. It must also comply with various laws requiring that the corporation provide employees health insurance and retirement benefits in its defined benefits plan.
Civil Rights Act of 1964, 78 Stat. 241, 1964.
Feldman, S. W. (2009). Autonomy and accountability in the law of contracts: A response to
Geibelson , M. A. and Conn, B. (2006). Clause and effect. Los Angeles Lawyer, 35-42.
Larsen, S., Lindsley, W., Masek, A. and Meley, A. E. (2015). § 103. State and federal
jurisdiction over suits based on diversity of citizenship. California Jurisprudence.
Marbury v. Madison, 5 U.S. 137 (1803).
U.S. Const. art III, sec. 1.
Valentine-Rutledge, G. M. (1995). Mediation as a trial alternative: Effective use of the adr rules.
American Jurisprudence Trials.