April 29 2013

A Quick Lesson on Subject-Matter Jurisdiction

posted by Thomas Welby

Subject-matter jurisdiction involves the authority of a court to hear a case based upon the subject-matter of the case. Subject-matter jurisdiction is distinguished between courts that retain general jurisdiction to hear a broad category of cases, and courts that retain limited jurisdiction to hear cases that fall within specific subject categories. The facts surrounding the cases determine whether a court may hear a case.

Case or Controversy

When a court has jurisdiction to hear a case, there must be an actual case or controversy that can be resolved by a court decision. If the plaintiff alleges an injury in fact, the injury must be within the zone of interest protected by statutes—either state or federal law. The plaintiff must also have standing, which involves a direct interest in the result of the case. The plaintiff must have been directly injured by the actions of the defendant—but more than an implausible or incidental interest in the outcome of the case. For example, courts typically will not hear a case based upon an individual’s status as a citizen alone without other facts that demonstrate an actual injury-in fact.

Ripeness and Mootness

Sometimes a plaintiff may have standing, but the judge may dismiss a case based upon ripeness or mootness. A case will be dismissed if it is not ripe, which means that the petitioner’s claims are too indefinite to exist as an actual case or controversy. In other words, an individual may not sue in court for an injury that has not yet occurred. Conversely, mootness is the opposite of ripeness. When a case has already been resolved by the court, or the passage of time has dissolved the case or controversy, the court will dismiss the case for being moot. In determining whether there is a current and actual injury-in-fact, the entire facts of the alleged dispute will resolve this issue.

Exclusive Jurisdiction

When a court has exclusive jurisdiction, this is the only court that may hear certain types of cases. No other courts have authority to hear a particular case, when one court retains exclusive jurisdiction.

Concurrent Jurisdiction

When more than one court has concurrent jurisdiction with each other for certain categories of cases, the plaintiff may choose to bring an action in either court.

State Courts vs. Federal Courts

In general, Congress has authority to vest exclusive jurisdiction of certain types of cases in federal court. State courts have concurrent jurisdiction to hear cases involving federal claims, when federal courts do not retain exclusive jurisdiction. State courts also have general jurisdiction to hear cases that involve state laws and statutes.

Original Jurisdiction

The plaintiff must petition the court that has original jurisdiction before proceeding to the appellate level courts. For instance, a criminal trial court has original jurisdiction to hear cases involving criminal law before an appellate court has authority to review the trial court’s decision.

Appellate Jurisdiction

Appellate jurisdiction involves a court’s authority to review decisions made by lower-level court. Appellate courts may revise decisions made by lower courts or send the case back to a lower court for review. However, one party must appeal a decision made by a lower court before the appellate court reviews the decision.

Supreme Court Original Jurisdiction

Pursuant to the Constitution, the Supreme Court has original jurisdiction over cases where a state is a party and cases involving public ministers, consuls and ambassadors. The Supreme Court also has original jurisdiction over cases between two or more states.

Byline:

Thomas Welby is a freelance writer who focuses his energies on legal issues such as Fraud, Criminal Law, Personal Injury, International Law, Business Law and others as well.

April 14 2013

You Have What it Takes to Get Over the Bar

posted by Ray Pearlman

When one does not pass the Bar exam, there is a sense of unfairness in it all. After three or four years of law school, many hours of sometimes difficult subjects, one has a few weeks to get ready to be tested-on all of it!

The Bar exam is a time of pressures and for many a step into an unknown. If one passes it fades quickly into celebration. If one does not pass, then the challenge lingers and is more complicated. Doubts creep in, and disappointment can cause a lack of confidence a loss of faith in the inevitable good outcome of so many years of hard work. One can forget-that one has everything needed to pass the Bar!

Yes, each student who successfully gets through law school has the information and the skills to pass the Bar exam. It is an opportunity that must be met with an commensurate level of preparation because getting close has no appreciable benefit, one must exceed the threshold to be rewarded. So what of those who try and do not pass the first time?

Passing the Bar is a difficult task for any student. If one were Editor of the Law Review it might be even harder because as for every student who sits for the exam: there is a weight of expectations. Everyone who had been so proudly told of the arrival and matriculation through law school might now wait to see that name in the newspaper or online as a successful candidate for admission to the State Bar. So when the results were announced and one was not on the list, there is a moment of possible severe disappointment. This is also a moment for real honesty- most who don't pass learn a great deal about the process and are better able to cope with the pressures and prepare with some greater precision. Those who do not pass might need to look deeply at themselves to see if there were things left undone. Was there a sincere and full effort? Were there one or more weaknesses that simply need to be better developed?

Taking or retaking a prep course, or a refresher can be invaluable. There are prep courses that can make one feel more test-ready. Some will even give tips on deceptive or tricky questions that have appeared on test after test. They can advise on techniques for ensuring points and improved scoring on essay questions. But in these courses as in the entire law school experience, the burden goes nowhere else, the student must persevere and endure- work very hard in order to succeed. 

The test is designed so that everyone will not pass. The great majority will pass even in the states with more difficult bar exams. For one who failed once, the moral lesson will stay for awhile. It can motivate through a second and most likely successful attempt.

This is the real message here- the will to win; to stay until there is a victory. To know that all of the necessary abilities are within and the task is to bring them to bear upon an exam. To know that it is all within reach but only if one reaches!

Byline:

Ray Pearlman is a freelance writer who focuses on Personal Injury, Divorce Law, Patent Law, Intellectual Property and other areas.