Directions: Access the following link http://www.vox.com/world/2016/12/6/13860054/obama-final-speech-military
Watch the closing remarks of President Obama?s last speech to active duty troops. The President mentions numerous constitutional principles and protections during this brief video clip.
Your assignment is broken into three sections:
(a) List as many constitutional principles and protections that President Barack Obama mentions during this video. Examples include constitutional protections that appear in the Bill of Rights. Include as many as possible, I listed 19 during my first listen to the video.
(b) Discuss at least four actions that President-elect Trump proposed while running for president that could cause a constitutional crisis (the linked article identifies some of these). Identify the proposed action and what constitutional principle and/or protection is implicated.
(c) Discuss how checks and balances, separation of powers, and federalism should help temper constitutional overreaches if President-elect Trump were to pursue some of his more controversial proposals. What institutions play crucial roles in the United States that counter-act each other?
Note that five points of extra credit is a significant boost to your grade. This is a privilege I provide to you, not an inherent right. Please do not think that you can simply breeze through this assignment without putting critical thought into your conclusions. The goal is to identify constitutional principles mentioned in President Obama?s speech and controversies raised during President-elect Trump?s candidacy, then discuss structural and institutional protections provided by the constitution in section (c).
Introduction to Law
Sources of law (three branches of U.S. government):
(1) Legislative Branch ? creates laws (our Legislature (a/k/a Congress, is a bi-cameral
legislature comprised of the House of Representatives and the Senate).
a. Senate ? is comprised of 100 Senators (two from each of the 50 states),
regardless of the size of the population of any given state.
b. House of Representatives ? is currently comprised of 435 members. Each U.S.
state is represented in the House in proportion to its population as measured
in the U.S. census process. Every state is afforded at least one representative.
The most populous state, California, currently has 53 representatives, while
seven states only have one representative.
(2) Executive Branch ? tasked with enforcing the laws passed by Congress (the
President and administrative agencies)
(3)Judicial Branch ? interprets laws (the court system).
The Legislature as a source of law
? The Legislature writes, proposes, votes on, and passes (or sometimes decides not to
? A proposed law is called a bill. A bill can be proposed in either the House of
Representatives or the Senate, but must ultimately be approved by both. If both the
House of Representatives and the Senate approve a bill, it goes to the President for
his or her signature.
? There are seven steps in the legislative process that derive from the Presentment
Clause of the U.S. Constitution, which establishes a bicameral legislative process.
The seven steps are:
(1) A bill is introduced in either the House or the Senate;
(2) The bill is referred to the appropriate committee (the House and Senate are
both comprised of numerous committees and subcommittees);
(3) The bill is then referred by the committee to the appropriate subcommittee
to hold hearings in which members of the subcommittee debate the pros and
cons of the bill and propose changes to it;
(4) The bill is ?marked up? (drafted in a precise form, to include any changes
decided during the subcommittee?s hearings), and referred to the
subcommittee for a vote;
(5)If the subcommittee votes to affirm the bill, then the bill goes to the full
committee which can either accept the bill, reject the bill, or put the bill on
hold. If the committee accepts the bill, then it goes to the full House of
Representatives or the full Senate for a vote. If, for example, the entire House
of Representatives votes on a bill and approves it, then the bill goes to the
Senate. The Senate can vote to either accept the bill, reject it, change it, or do
(6)If both the House of Representatives and the Senate approve a bill, then the
bill goes to a Conference Committee to iron out any differences between the
version of the bill passed by the House of Representatives and the version
passed by the Senate.
(7)If the bill comes out of the Conference Committee and both the House of
Representatives and the Senate approve it one last time, then the bill then
goes to the President for signature.
? The President has several options when presented with a bill.
(1)If the President signs the bill, then the bill becomes a statute, and is a valid
law (a statute is a written law that has been approved by Congress and
signed by the President).
(2)If the President vetoes the bill, then the bill will not become law (although
Congress can ?override? the veto if 2/3 of all the members of the House of
Representatives and the Senate vote to do so, which is extremely rare).
(3)If the President does nothing with the bill for 10 days, then the bill becomes a
law automatically without the President?s signature, UNLESS Congress
adjourns during that 10-day period. If the current session of Congress comes
to an end during the 10-day period while the President does nothing with the
bill, then the bill does not become law (this process is called a ?Pocket Veto,?
because the President effectively vetoes the bill simply by doing nothing
(a/k/a keeping the bill in his or her pocket for 10 days).
(4) President Line-Item Vetoes are Unconstitutional ? although this was not
covered in the Kubasek text, this is a useful concept to know. Line Item
Vetoes refer to the power of a chief executive authority (e.g., the President or
Governor) to nullify or cancel specific provisions of a bill, usually a budget
item, without vetoing the entire bill. Congress actually passed the Line Item
Veto Act of 1996 to help the President curtail ?pork barrel spending?
projects, but the U.S. Supreme Court held the Act was unconstitutional in its
1998 decision, Clinton v City of New York. The Court found that the exercise of
the line item veto was the equivalent of a unilateral amendment or repeal of
only parts of a bill, which violated the Presentment Clause of the U.S.
Constitution that outlines how a bill is passed into law via the bicameral
legislative process. Thus, it is useful to know that when the President vetoes
a bill, he must veto the entire bill and cannot pick and choose what
provisions of a bill he wishes to veto and keep. Vetoing a bill is an all-ornothing
action taken by the President. If Presidents ever gain the power to
make line item vetoes, it will have to derive from an amendment to the U.S.
? Study Question: what are the differences between a bill, statute, and a law? A ?bill? is
a proposed law that has not yet been passed by Congress and signed by the
President. A ?statute? is a written law that has been passed by Congress and signed
by the President (note that at a state level, such as Michigan, statutes are passed by
both chambers of the Legislature (State House and State Senate) and signed by the
Governor. Lastly, a ?law? is a broad term that includes statutes, common law
decisions from courts, and administrative rules (which are similar to statutes but
promulgated by administrative agencies via the quasi-legislative function of
rulemaking). Thus, a ?law? is an umbrella term used to describe various things like
statutes, but also other types of laws.
The Judicial Branch as a source of law
– The Judicial Branch of government is essentially the nation?s court system. It is the
function of the judicial branch to interpret statutes in order to determine what the
statutes mean, to resolve legal disputes, and to make sure that statutes do not
violate the U.S. Constitution.
o Marbury v Madison (1803) – This seminal U.S. Supreme Court case
established the Supreme Court?s power of judicial review. The right of
judicial review gives the U.S. Supreme Court the ultimate power to check
excesses of either the legislative or executive branch. Chief Justice John
Marshall proclaimed in this opinion that:
? ?It is emphatically the province and duty of the Judicial Department
[the judicial branch] to say what the law is. Those who apply the rule
to particular cases must, of necessity, expound and interpret that rule.
If two laws conflict with each other, the Courts must decide on the
operation of each.?
– ?Common Law? or ?Case Law? ? is the system whereby courts look to previous court
decisions as precedent to help guide and decide the outcome of cases. The theory
behind this system is that, if a court interprets the law by looking at how other
courts have interpreted it in the past, then we will have a more consistent
application of the law because courts will consistently issue similar decision in
– Bind Authority versus Persuasive Authority:
o A decision from the same court one is currently in, or a higher court with
appellate review, is considered a ?binding precedent,? meaning the court is
required to follow it. This judicial doctrine is called stare decisis. For
example, if a case is before the Federal District Court for the Eastern District
of Michigan (located in Detroit), then previous decisions by the District Court
will be binding precedent that must be followed. This is also true for
decisions made by the Sixth Circuit Federal Court of Appeals (which holds
appellate review over the Federal District Courts in Michigan), as well as the
United States Supreme Court, which has appellate review over all Federal
Courts in the United States since it is the federal court system?s ?court of last
o See pages 20-21 of the Kubasek text for a map and outlines of the U.S. federal
court system. Note that although Colorado is a different color than the other
states comprising the Tenth Circuit Federal Court of Appeals, Colorado is in
fact in the Tenth Circuit.
– A decision from a lower court or another court that does not hold appellate review
over the court one is in, is not binding precedent (so the court would not be
required to follow it under the doctrine of stare decisis). However, a nonbinding
decision may still be used as ?persuasive? authority. For example, in the Federal
District Court in Detroit, a Michigan Supreme Court decision would not be
considered binding precedent, because it is from a state court instead of a federal
court. Similarly, a decision from the Ninth Circuit Federal Court of Appeals (which
has appellate jurisdiction over federal cases from California and other states
indicated on the page 20 map) would not be binding in the Federal District Court in
Detroit, since it is within the Sixth Circuit. However, cases from the Ninth Circuit
could be offered as persuasive authority (a suggestion for what the judge might
consider doing, since other courts have done it that way before).
– Published versus Unpublished Cases
o A ?published? case is one that the appellate court decides a new or important
issue, and so is published in the appropriate digest of appellate cases (recall I
passed around an appellate digest in class). Published cases are binding on
the court that issued them, as well as lower courts.
o An ?unpublished? case is one that the appellate court opted not to publish,
usually because it deals with an issue that has been previously decided, or is
merely procedural in nature. An unpublished case is not binding on any
court, but is considered persuasive authority.
Executive Branch as source of law
– At the federal level, the Executive Branch consists of the President, the President?s
staff, and the Cabinet (the heads of each executive department). Similar
arrangements are followed by each state, with the Governor as the chief executive.
– The Executive Branch is a source of law in two ways:
1. Treaty Making- the President negotiates and signs treaties, which are binding
legal agreements between different nations (treaties are not binding on the
United States until the President signs them AND the Senate votes to ratify
2. Executive Orders ? orders issued by the President to the executive
departments and administrative agencies, directing them to take certain
actions or to interpret a law in a specified way.
Administrative Agencies as a source of law
Administrative Agencies ? are the entities that actually execute the laws that Congress
passes. For example, the IRS collects taxes; EPA administers, among other laws, the Clean
Air Act and the Clean Water Act; the Social Security Administration is responsible for
paying Social Security benefits; and the Occupational Safety and Health Administration
(OSHA) administers the Occupational Safety and Health Act that protects workers? safety
and health on the job.
Administrative Agencies cover a broad area of generally characterized activities, such as:
? Regulating private conduct. For example, EPA regulates industrial and other
activities to control pollution; OSHA regulates private businesses in order to ensure
that they provide safe workplaces for employees; the Federal Trade Commission
(FTC) regulates commercial practices; and the Securities Exchange Commission
(SEC) regulates securities brokers, dealers, and issuers.
? Disbursing Entitlements. For example, in addition to the Social Security
Administration, the Centers for Medicare and Madicaid Services within the
Department of of Health and Human Services oversees Medicare and Medicaid
programs, and the Department of Agriculture is responsible for issuing food stamps
to needy persons.
? Managing Federal Property. For example, the National Park Service and Bureau of
Land Management (BLM) within the Department of Interior, manages the national
parks and BLM lands, and the USFS in the Department of Agriculture manages the
? Others Activities of Agencies ? many agency activities don?t fall within the above
categories, such as the Department of State?s issuance of passports, the Immigration
and Customs Enforcement Agency?s admission and deportation of aliens, the
National Aeronautics and Space Administration?s (NASA) space shuttle program, or
the IRS?s collection of taxes.
? Bottom Line ? The modern day administrative system, commonly referred to as the
Administrative Law or Regulatory State, is a pervasive system that has a substantial
and direct effect on private persons and businesses, whether it is in the form of
prohibiting or permitting an activity, granting or denying a benefit, or affecting the
environment in ways that can impact those who use it.
Some people consider administrative agencies to be a fourth branch of government. Why?
Administrative agencies are technically part of the Executive Branch of government. The
heads of agencies are typically appointed by the President (or, in state government, by the
Governor), and they execute the day-to-day functions of government. However,
administrative agencies also perform functions that have quasi-legislative and quasijudicial
? Rulemaking ? is a quasi-legislative function administrative agencies possess, in
which administrative agencies further develop regulatory rules based on the
agency?s enabling statute that gave it powers in the first place. Example ?if the
Michigan Legislature passes a statute that requires Michigan drivers to obtain a
driver?s license, the Legislature could then delegate to the appropriate agency (in
this instance, the Michigan Secretary of State) to power to promulgate detailed rules
governing the licensing process.
? Adjudication ? is a quasi-judicial function administrative agencies possess, in which
agency directors and/or judges preside over certain limited legal disputes involving
administrative law. Example ? Congress passes statutes that protect and regulate
the uses of designated wetlands. Congress would then delegate adjudicatory powers
to the Environmental Protection Agency (EPA) to hear challenges to the regulatory
system, such as a challenge from a landowner that wants to build a shopping mall on
designated wetlands. The initial litigation would be before the EPA in administrative
hearings, before the dispute is allowed to go to the traditional court system.
Remember: The Legislative Branch must delegate the power/authority to an
administrative agency, and agencies only have those powers that are expressly delegated to
them by the Legislative Branch. Administrative agencies are commonly delegated the
power to make rules governing the conduct of business and labor in certain areas. This
authority is delegated because it is viewed as being in the public interest, convenience and
necessity ? because the Legislature cannot develop nuanced/detailed rules of conduct for
each and every statute it passes.
Why does Congress sometimes grant quasi-legislative and quasi-judicial powers to
administrative agencies? There are two main reasons:
1. Expertise ? first, administrative agencies are the experts in their practice
field. Thus, Congress will often direct a specific agency to enact
administrative rules to implement the programs it is tasked with overseeing
and reach the broader goals set forth in the applicable statute, because the
specific agency has a greater understanding and expertise in the area
compared to Congress. Example ? EPA has much better understanding of
environmental issues than Congress, since it is comprised of scientists,
engineers, etc., while Congress is filled with politicians.
2. Judicial Economy – second, quasi-judicial powers (requiring parties to litigate
in an administrative hearing before appealing that decision to the court
system) prevents courts from being overwhelmed and clogged with lawsuits.
Instead, these lawsuits are first handled by the agency that has an expertise
in the pertinent subject matter, so the person deciding the case is an expert
in the field and it reduces the number of cases in the court system.
While administrative agencies are technically part of the Executive Branch, some people
consider administrative agencies to be a fourth branch of government because they
perform quasi-legislative and quasi-judicial functions in addition to their executive
Classifications of Law ? for the exam, be prepared to discuss and define the differences
between civil law and criminal law; public law and private law; substantive law and
– Civil Law v Criminal Law:
– Civil Law ? is comprised of federal and state statutes governing litigation
between parties to a legal dispute. Rather than prosecutors, there are
plaintiffs, who are usually private individuals or businesses suing other
individuals or businesses (the defendants) to obtain compensation for an
alleged breach of a private duty (e.g., tort law and contract disputes). To
succeed in a civil law case, the plaintiff usually only has to prove his or her
claims by a preponderance of the evidence, which is a ?more likely than not?
– Criminal Law ? comprised of federal or state statutes that prohibit wrongful
conduct such as arson, murder, and larceny. The purposes of criminal law are
punitive, rehabilitative, restitutive, and deterrence. Crimes are generally
divided into felonies and misdemeanors. States, not the federal government,
are the primary actors in the criminal law system, since each state has the
right to pass different criminal laws under the United States? system of
federalism. In order to succeed in prosecuting an alleged criminal, the state
acting through a prosecutor must prove the allegations beyond a reasonable
doubt, which is the highest standard of the burden of proof.
– Substantive Law v Procedural Law:
– Substantive Law ? creates and regulates legal rights. For example, the rules of
contract law determine whether an agreement between parties is binding
and, thus, an enforceable contract. Or, the right to sue for compensatory
damages if one is a victim of a tort is a substantive right.
– Procedural Law ? set forth the rules of enforcing substantive rights in a court
of law. In effect, procedural laws define the ground rules of litigation and
define the manner in which one obtains a remedy in court. For example,
parties to litigation have a right to appeal decisions made by a trial court
within a specified time frame after the trial court decision is made. In
Michigan, in most cases a party must appeal a trial court decision within 30
days. In this scenario, the substantive right held is the right to appeal a trial
court decision, and the procedural law is that the substantive right to appeal
must be asserted within 30 days.
– Public Law v Private Law:
– Public Law ? deals with relationships between the government and
individual citizens. Constitutional law, criminal law, and administrative law
fit within this classification. Constitutional law establishes the basic
principles and laws of the nation set forth in the U.S. Constitution, which
determine the powers and obligations of the government and guarantees
certain rights to citizens. Administrative law cover the process by which
individuals or businesses can redress grievances against regulatory agencies.
Admin law also covers the process whereby government agencies represent
individuals or classes of individuals against business entities ? for example,
when the Public Service Commission regulates natural monopolies such as
electric utilities in order to ensure just and reasonable electric rates.
– Private Law ? generally concerned with the enforcement of private duties
between individuals and/or businesses ? which touches on contact law, tort
law, and property disputes. The government is typically not a party to
litigation between private parties, although can be (e.g., property dispute
between to beachfront owners could involve issues of concern by
The American Court System (Kubasek pp 10-40)
Terms to Know:
– Plaintiff ? the party on whose behalf a complaint is filed in a civil action.
– Defendant ? the party against whom a civil action is brought against.
– Complaint ? the initial pleading in a case that names the parties, the basis for the
court?s subject matter jurisdiction, the facts on which the plaintiff?s claims are based,
and the relief that the plaintiff is seeking.
– Summons ? order by the court to the defendant to appear before the court at a
certain time and place.
– Service ? providing the defendant with a copy of the summons and complaint.
– Jurisdiction ? is the power of a court to hear a case and issue a binding decision.
There are many different forms of jurisdiction: original v appellate; personal v in
rem v subject matter; and exclusive v concurrent.
– Original Jurisdiction v Appellate Jurisdiction
– Original Jurisdiction (a/k/a TRIAL COURT) ? where a lawsuit begins. The
court of original jurisdiction is the trial court. This is where evidence is
offered and facts are decided by the fact finder, who is either a jury or judge.
This is where the traditional idea of a ?trial? takes place, e.g., opening
statements, questions or witnesses, closing statements, verdict.
– Appellate Jurisdiction ? where the decision of the trial court is appealed to.
The court of appeals has authority to review the trial court?s decisions to
make sure that the law and procedure were applied correctly. There are no
new facts on an appeal, merely consideration of the law and procedure as
applied by the trial court and found within the trial court records and
transcripts. Appellate courts do not conduct new trials, although they can
order retrials at the court of original jurisdiction by remanding the case back.
Oral arguments are common before a panel of appellate judges, where each
party is given around 20 minutes to orally argue its written appellate
– Personal Jurisdiction v In Rem Jurisdiction
– Personal Jurisdiction (in personam jurisdiction) ? Jurisdiction over the
person. A court acquires personal jurisdiction over the plaintiff when the
complaint is filed. A court acquires personal jurisdiction over a defendant
when the defendant is served with process (the summons and complaint).
Defendants can timely challenge a court?s personal jurisdiction over him or
her. If personal jurisdiction is not challenged by the defendant in the
procedurally required time frame, it is considered waived.
– In Rem Jurisdiction ? jurisdiction over the property itself, specifically over a
thing that is subject of a lawsuit. The power of a court to render a decision
that affects property directly rather than the owner of the property. Example
? a Michigan resident owns land in Ohio and fails to pay taxes on the land.
Authorities in Ohio could bring an In Rem lawsuit against the property itself
(the land) to recover the value of the unpaid taxes, which would likely
involve selling the property.
Readings on Personal Jurisdiction
Worldwide Volkswagen Corp v Woodson (1980):
– The issue in this case was whether, under the due process clause in the 14th
Amendment to the U.S. Constitution, an Oklahoma court may exercise personal
jurisdiction over a non-resident corporation whose only connection with Oklahoma
is that an automobile sold by the corporation in New York was involved in an
accident in Oklahoma.
– The Due Process Clause of the 14th Amendment to the U.S. Constitution requires that
no person be deprived of life, liberty, or property without due process of law (which,
in simple terms, means notice, an opportunity to be publicly heard, and a fair
hearing). U.S. Supreme Court held that a defendant must have sufficient ?minimum
contacts? in a state for that state?s courts to have personal jurisdiction over
– The minimum contacts test is intended to protect defendants from unfairly being
hauled into court unexpectedly. It is centered on traditional notions of fair play and
substantial justice, meaning that there has to be some reasonableness and fairness
in the exercise of personal jurisdiction.
– Because WWV did not have an office in Oklahoma, did not do business in Oklahoma,
and did not purposefully avail itself of the privileges and benefits of doing business
in Oklahoma, WWV did not have sufficient minimum contacts for the Oklahoma
courts to exercise personal jurisdiction over it. Because WWV did not purposefully
avail itself of the opportunity to conduct business in Oklahoma, although it could
foresee that its buyers might take its car there, minimum contacts did not exist
because foreseeability alone is not sufficient to create minimum contacts. WWV did
not seek any direct benefits from Oklahoma activities sufficient to require it to
submit to personal jurisdiction there.
– WWV Minimum Contacts Test summarized ? A state court may exercise personal
jurisdiction over a nonresident defendant only so long as there exist ?minimum
contacts? between the defendant and the forum state. Isolated or fortuitous
occurrences, even if foreseeable, do not alone give rise to a determination of
sufficient minimum contacts. The foreseeability that is critical to due process
analysis is not the mere likelihood that a product will find its way into the forum
state. Rather, it is that the defendant?s conduct and connection with the forum state
are such that he should reasonably anticipate being hauled into court there. When a
corporation ?purposefully avails itself of the privilege of conducting business
activities within the forum state, it has clear notice that it is subject to suit there.
– Application of WWV minimum contacts test ? In WWV the mere fact that a
single Audi vehicle was sold in New York to a New York resident that
happened to be involved in an accident in Oklahoma was deemed as an
isolated and fortuitous circumstance insufficient to give rise to personal
jurisdiction. Even though it was foreseeable that a vehicle sold in one state
could be involved in an accident in another state, foreseeability alone does
not give rise to personal jurisdiction. The key is a defendant?s purposeful
actions, and whether the defendant?s conduct and connection with the forum
state availed it to the privileges and benefits of doing business there.
Southern Prestige Industries, Inc. v Independence Plating Co. (2010)
– 2010 case that shows the further development of the ?minimum contacts test?
through more refined case law.
– In this case, the court developed a five factor test for determining when a defendant
has ?sufficient minimum contacts? with the forum state.
– Southern Prestige test ? In order to establish the minimum contacts between the
nonresident defendant and the forum state, such that the maintenance of a lawsuit
does not offend traditional notions of fair play and substantial justice, the defendant
must have purposefully availed itself of the privilege and benefits of conducting
activities within the forum state and invoked benefits and protections of the laws of
the forum state. The relationship between the defendant and forum state must be
such that the defendant should reasonably anticipate being hauled into court there. To
determine whether those minimum contacts existed, the court looks at:
– The quantity of the contacts;
– The nature and quality of the contacts;
– The source and connection of the cause of action to the contacts;
– The interest of the forum state;
– The convenience to the parties.
Study Tip ? review the blue box fact pattern on p 14, dealing with the case Snowney v
Harrah?s Entertainment. Be able to articulate the minimum contacts test applied to the fact
pattern involving the casinos.
Subject Matter Jurisdiction
– Subject Matter Jurisdiction ? is the court?s power to hear a certain kind of case. The
crucial question at stake in a subject matter jurisdiction analysis is whether the case
should be in state or federal court.
– Subject matter jurisdiction is granted by law. Parties cannot agree to it or waive it
(unlike personal jurisdiction), a court either has jurisdiction over the subject matter
of the lawsuit or it does not.
– If a court lacks subject matter jurisdiction, then it must immediately dismiss the
case. A court cannot hear a case over which it lacks subject matter jurisdiction, even
if the parties agree to it.
– Overview ? Federalism in the American Court System: Not only is legislative power
split between the two levels of federal and state government, but the judicial power
is as well. Thus, in every state there is a state court system and a branch of the
federal court system. Some cases must be brought in the state courts. Other cases
(though not many) must be brought in federal courts. And still others may be filed in
either court system. The trick is to know which cases go where, and that depends on
which court has ?subject matter jurisdiction? over the case ? that is, the power to
hear the particular kind of case the plaintiff plans to file.
– Historical Context ? a major premise underlying the U.S. Constitution is that
the states function quite well in most respects and that federal interference
should be confined to those areas where there is a special need for national
policy. For example, in 1787, when the Constitution was drafted, every state
already had its own system of courts. The framers of the Constitution saw no
need to abolish those courts in favor of federal courts administered by the
national government. Instead, the framers authorized the creation of a
separate federal court system, but they only authorized those federal courts
to hear limited categories of cases that, for one reason or another, involved a
particular national interest. Jurisdiction for all other cases was left to the
courts of the states.
– State Court Subject Matter Jurisdiction ? very broad. State courts have jurisdiction
over ALL CASES that are not in the exclusive jurisdiction of the federal courts (this
concept is immensely important to understanding the American Court System!!!).
This is why state courts of original jurisdiction are called courts of ?general
jurisdiction.? 98% of lawsuits take place in state courts.
– Federal Court Subject Matter Jurisdiction ? highly limited. For a case to proceed in a
federal court, there must be federal subject matter jurisdiction. Federal courts can
have subject matter jurisdiction in two ways: (1) exclusive jurisdiction, and (2)
– Exclusive Federal Jurisdiction ? certain kinds of cases may only be brought in
federal courts, because the Legislature has passed laws requiring the federal
courts exclusive jurisdiction over the subject matter. These include admiralty
law (the law of the sea), bankruptcy law, intellectual property, federal
criminal trials, and lawsuits against the federal government.
– Concurrent Jurisdiction ? occurs when both the state courts and the federal
courts have subject matter jurisdiction, which means the plaintiff could bring
the lawsuit in either state court of federal court.
– Concurrent jurisdiction exists in two areas (meaning either the case may be
filed in either state or federal court):
? Federal Questions and Federal Cases: Article III, s. 2 of the U.S.
Constitution authorizes federal courts to hear cases ?arising under
this Constitution, the Laws of the United States, and Treaties mad, or
which shall be made under their Authority.? Simply put, concurrent
jurisdiction exists in cases arising under federal law (U.S. Constitution,
federal statutes, or a treaty). Example ? lawsuits that are brought
under the Civil Rights Act, whereby a citizen sues a federal agent for
police brutality. Or, an employee sues his or her employer company
under a federal whistleblower statute, which authorizes an employee
fired for reporting a violation of federal regulations to obtain
reinstatement and damages from her employer.
? Diversity of Citizenship cases ? One of the major categories of cases
that the framers of the U.S. Constitution authorized federal courts to
hear is the so-called diversity jurisdiction described in Article III, s 2,
as ?cases between citizens of different states.? In diversity cases, as in
some others some others enumerated in Article III, s 2, the subject
matter jurisdiction of the federal courts is defined by who the parties
to the lawsuit are, rather than the actual subject matter of the
underlying dispute. The framers? apparent reason for singling out
diversity cases for federal jurisdiction was a fear that out-of-state
citizens could suffer prejudice if they were forced to litigate disputes
against local citizens in the local state courts.
? Diversity Requirements ? (1) Diversity of citizenship must be
complete on opposite sides of the ?v,? meaning that no plaintiff can be
from the same state as any defendant. However, the plaintiffs could all
be from the same state, or the defendants could all be from the same
state, as long as the plaintiffs are all from different states than the
defendants. (2) Additionally, the matter in controversy must be over
– Study Question – for diversity of citizenship purposes, how do you know where a
corporation?s residence is? It is where the corporation?s headquarters is located and
its principal place of business. Many times these are located in the same state,
however, sometimes a business?s headquarters and principal place of business can
– Defendant?s Right to Removal from State to Federal Court ? in concurrent
jurisdiction cases, the plaintiff may file the complaint in either state or federal court,
because both courts have subject matter jurisdiction. However, if the plaintiff files
the complaint in state court, the defendant has the right to removal in exercised
within the procedural time limits, which means the defendant can have the case
moved to federal court. When a defendant invokes the right to removal, the state
court judge is compelled to do so and has no choice but to send the case to the
appropriate federal district court. Also, remember that there is no such thing as
removal from a federal court to state, nor can a plaintiff remove a case to federal
court after filing a lawsuit in state court. In other words, the right to removal is a
right solely held by defendants in state court cases in which concurrent jurisdiction
is proven to exist.
– Note that a defendant would also hold the right to removal if the plaintiff
improperly filed a case in state courts that falls under the exclusive
jurisdiction of the federal courts such as bankruptcy cases and lawsuits
against the U.S. government.
– Venue ? is the geographic location where the case should be heard.
– Note ? venue is different from jurisdiction. Jurisdiction refers to a court?s
authority to hear and issue a binding decision in a case. Once you have
decided which court has jurisdiction (usually a state trial court or federal
trial court), you must decide which specific court is the correct one to hear
the case. For example, if you know that the case should be filed in federal
district court, do you file in the federal district court in Michigan or
California? If Michigan, do you file in the Eastern District of Michigan located
in Detroit, or the Western District of Michigan located in Grand Rapids? If you
know that the case should be filed in state trial court, which county circuit
court is the correct one?
– Venue is usually based on the resident of the defendant. Thus, if you wish to
sue a Detroit resident in federal court, you will typically file your complaint
in the Federal District Court for the Eastern District of Michigan (located in
Detroit). Or, if you wish to sue in state court, you would file your complaint in
the state trial court for Wayne County (where Detroit is located).
– Forum Non Conveniens ? a defendant may request a change of venue by
invoking the doctrine of ?forum non conveniens? which is a Latin phrase for
?this forum is not convenient.? In other words, a defendant can ask to have a
change of venue (the case moved to a different federal district court or
county) based on concerns of convenience to the parties. Unlike the
aforementioned ?right to removal,? the trial court judge has discretion in
deciding whether or not to grant a change of venue based on a forum non
conveniens argument. If the judge does not want to send the case to another
court, the judge does not have to do so.