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How to Support Arguments & Positions

Supporting positions and conclusions

Introduction

Many papers that you write in college will require you to take a position or make a conclusion. You must take a position on the subject you are discussing and support that position with supporting evidence. It’s important that you use the right kind of support, that you use it effectively, and that you have an appropriate amount of it.

If your professor has told you that you need more analysis, suggested that you’re “just listing” points or giving a “laundry list,” or asked you how certain points are related to your argument, it may mean that you can do more to fully incorporate your supporting evidence into your argument. Grading feedback comments like “for example?,” “proof?,” “go deeper,” or “expand” suggest that you may need more evidence.

What are primary and secondary sources?

Distinguish between primary and secondary sources of evidence (in this case, “primary” means “first” or “original,” not “most important”). Primary sources include original documents, photographs, interviews, and so forth. Secondary sources present information that has already been processed or interpreted by someone else.

For example, if you are writing a paper about the movie “The Matrix,” the movie itself, an interview with the director, and production photos could serve as primary sources of evidence. A movie review from a magazine or a collection of essays about the film would be secondary sources. Depending on the context, the same item could be either a primary or a secondary source: if I am writing about people’s relationships with animals, a collection of stories about animals might be a secondary source; if I am writing about how editors gather diverse stories into collections, the same book might now function as a primary source.

Where can I find evidence?

The best source for supporting evidence is the assigned resources for each week in the classroom.  Do not use outside resources unless instructed to do so by your professor. 

Other outside sources of information and tips about how to use them in gathering supporting evidence are listed below.

Print and electronic sources

Books, journals, websites, newspapers, magazines, and documentary films are some of the most common sources of evidence for academic writing.

Interviews

An interview is a good way to collect information that you can’t find through any other type of research and can provide an expert’s opinion, biographical or first-hand experiences, and suggestions for further research.  Consult with your professor before conducting interviews or using interviews in support of positions.

Personal or professional experience

Using your own personal or professional experiences can be a powerful way to appeal to your readers. You should, however, use these experiences only when it is appropriate to your topic, your writing goals, and your audience. Personal or professional experience should not be the  only forms of supporting evidence in a paper.

Using evidence in an argument

Does evidence speak for itself?

Absolutely not. After you introduce supporting evidence into your writing, you must explain why and how this evidence supports your position.   You have to explain the significance of the supporting evidence and its function in your paper. What turns a fact or piece of information into supporting evidence is the connection it has with a larger claim or argument: evidence is always evidence for or against something, and you have to make that link clear.

As writers, we sometimes assume that our readers already know what we are talking about; we may be wary of elaborating too much because we think the point is obvious. But readers can’t read our minds: although they may be familiar with many of the ideas we are discussing, they don’t know what we are trying to do with those ideas unless we indicate it through explanations, organization, transitions, and so forth. Try to spell out the connections that you were making in your mind when you chose your evidence, decided where to place it in your paper, and drew conclusions based on it. Remember, you can always cut prose from your paper later if you decide that you are stating the obvious.

Always write as if the reader knows absolutely nothing about the topic.

Here are some questions you can ask yourself about a specific bit of supporting evidence:

· OK, I’ve just stated this point, but so what? Why is it interesting? Why should anyone care?

· What does this information imply?

· What are the consequences of thinking this way or looking at a problem this way?

· I’ve just described what something is like or how I see it, but why is it like that?

· I’ve just said that something happens—so how does it happen? How does it come to be the way it is?

· Why is this information important? Why does it matter?

· How is this idea related to my thesis? What connections exist between them? Does it support my thesis? If so, how does it do that?

· Can I give an example to illustrate this point?

Answering these questions may help you explain how your evidence is related to your overall argument.

How can I incorporate evidence into my paper?

There are many ways to present supporting evidence. Often, your evidence will be included as text in the body of your paper, as a paraphrase, or summary. Sometimes you might include graphs, charts, or tables; excerpts from an interview; or photographs or illustrations with accompanying captions.

Quotations

DO NOT USE quotations in assignments in this course.  The only exception is if you are referring to an original, one-of-kind document, such as the U.S. Constitution.

Paraphrasing

When you paraphrase, you take a specific section of a text and put it into your own words. Putting it into your own words doesn’t mean just changing or rearranging a few of the author’s words: to paraphrase well and avoid plagiarism, try setting your source aside and restating the sentence or paragraph you have just read, as though you were describing it to another person. Paraphrasing is different than summary because a paraphrase focuses on a specific, brief bit of text (like a phrase, sentence, or paragraph). You’ll need to indicate when you are paraphrasing someone else’s text by citing your source correctly, just as you would with a quotation.  Refer to the module in Content, “How to Use APA” for instructions and examples for proper APA citation.

When might you want to paraphrase?

· Paraphrase when you want to introduce a writer’s position.

· Paraphrase when you are supporting a specific point and need to draw on a certain place in a text that supports your position—for example, when one paragraph in a source is especially relevant.

· Paraphrase when you want to present a writer’s view on a topic that differs from your position or that of another writer; you can then refute writer’s specific points in your own words after you paraphrase.

· Paraphrase when you want to comment on a particular example that another writer uses.

· Paraphrase when you need to present information that’s unlikely to be questioned.

Summary

When you summarize, you are offering an overview of an entire text, or at least a lengthy section of a text. Summary is useful when you are providing background information, grounding your own argument, or mentioning a source as a counterargument. A summary is less nuanced than paraphrased material. It can be the most efficient and effective way to incorporate several sources.  When you are summarizing someone else’s argument or ideas, be sure this is clear to the reader and cite your source appropriately.

Statistics, data, charts, graphs, photographs, illustrations

Sometimes the best evidence for your argument is hard facts or visual representation of a fact. This type of evidence can be a solid backbone for your argument, but you still need to create context for your reader and draw the connections you want him or her to make. Remember that statistics, data, charts, graph, photographs, and illustrations are all open to interpretation. Guide the reader through the interpretation process. Again, always, cite the origin of your evidence if you didn’t produce the material you are using yourself.  Do not overuse this type of supporting evidence.

Do I need more supporting evidence?

Let’s say that you’ve identified some appropriate sources, found some evidence, explained to the reader how it fits into your overall argument, incorporated it into your draft effectively, and cited your sources. How do you tell whether you’ve got enough evidence and whether it’s working well in the service of a strong argument or analysis? Here are some techniques you can use to review your draft and assess your use of evidence.

Make a reverse outline

A reverse outline is a great technique for helping you see how each paragraph contributes to proving your thesis. When you make a reverse outline, you record the main ideas in each paragraph in a shorter (outline-like) form so that you can see at a glance what is in your paper. The reverse outline is helpful in at least three ways. First, it lets you see where you have dealt with too many topics in one paragraph (in general, you should have one main idea per paragraph). Second, the reverse outline can help you see where you need more evidence to prove your point or more analysis of that evidence. Third, the reverse outline can help you write your topic sentences: once you have decided what you want each paragraph to be about, you can write topic sentences that explain the topics of the paragraphs and state the relationship of each topic to the overall thesis of the paper.

Play devil’s advocate or doubt everything

This technique may be easiest to use with a partner. Ask your friend to take on one of the roles above, then read your paper aloud to him/her. After each section, pause and let your friend interrogate you. If your friend is playing devil’s advocate, he or she will always take the opposing viewpoint and force you to keep defending yourself.  If your friend is a doubter, he or she won’t believe anything you say. Justifying your position verbally or explaining yourself will force you to strengthen the evidence in your paper. If you already have enough evidence but haven’t connected it clearly enough to your main argument, explaining to your friend how the evidence is relevant or what it proves may help you to do so.

Writing Introductory Sentences & Paragraphs

Introductions

The role of introductions:  introductory paragraphs and sentences

Introductions and conclusions can be the most difficult parts of papers to write. Usually when you sit down to respond to an assignment, you have at least some sense of what you want to say in the body of your paper. You might have chosen a few examples you want to use or have an idea that will help you answer the main question of your assignment; these sections, therefore, may not be as hard to write. And it’s fine to write them first! But in your final draft, these middle parts of the paper can’t just come out of thin air; they need to be introduced and concluded in a way that makes sense to your reader.

Your introduction and conclusion act as bridges that transport your readers from their own lives into the “place” of your analysis. If your readers pick up your paper about education in the autobiography of Frederick Douglass, for example, they need a transition from contemporary life to temporarily enter the world of nineteenth-century American slavery. By providing an introduction that helps your readers make a transition between their own world and the issues you will be writing about, you provide readers with the tools they need to get into your topic and care about what you are saying. Similarly, once you’ve hooked your readers with the introduction and offered evidence to prove your thesis, your conclusion can provide a bridge to help your readers make the transition back to their daily lives.

Why bother writing a good introduction?

The introduction of a paper will provide your readers with their initial impressions of your argument, your writing style, and the overall quality of your work.   A concise, engaging, and well-written introduction will start your readers off thinking highly of you, your analytical skills, your writing, and your paper.

Your introduction is an important road map for the rest of your paper and conveys a lot of information to your readers. You let them know what your topic is, why it is important, and how you plan to proceed with your discussion. In many academic disciplines, your introduction should contain a thesis that will assert your main argument. Your introduction should also give the reader a sense of the kinds of information you will use to make that argument and the general organization of the paragraphs and pages that will follow. After reading your introduction, your readers should not have any major surprises in store when they read the main body of your paper.

Ideally, your introduction will make your readers want to read your paper. The introduction should capture your readers’ interest, making them want to read the rest of your paper.

Strategies for writing an effective introduction

Start by thinking about the question (or questions) you are trying to answer. Your entire paper will be a response to this question, and your introduction is the first step toward that end. Your direct answer to the assigned question will be your thesis or position, and your thesis will likely be included in your introduction, so it is a good idea to use the question as a jumping off point. Imagine that you are assigned the following question:

One strategy for writing an introduction is to start off with a “big picture“ sentence or two and then focus in on the details of your position.  Decide how general or broad your opening should be. Keep in mind that even a “big picture” opening needs to be clearly related to your topic; an opening sentence that said “Human beings, more than any other creatures on earth, are capable of learning” would be too broad for our sample assignment about slavery and education. If you have ever used Google Maps or similar programs, that experience can provide a helpful way of thinking about how broad your opening should be. The question you are asking determines how “broad” your view should be. When writing, you need to place your ideas in context—but that context doesn’t generally have to be as big as the whole galaxy!

Try writing your introduction last. You may think that you must write your introduction first, but that isn’t necessarily true, and it isn’t always the most effective way to craft a good introduction. You may find that you don’t know precisely what you are going to argue at the beginning of the writing process. It is perfectly fine to start out thinking that you want to argue a specific point but wind up arguing something slightly or even dramatically different by the time you’ve written most of the paper.

The writing process can be an important way to organize your ideas, think through complicated issues, refine your thoughts, and develop a sophisticated argument. However, an introduction written at the beginning of that discovery process will not necessarily reflect what you wind up with at the end. You will need to revise your paper to make sure that the introduction, all the supporting evidence, and the conclusion reflect position you intend. Sometimes it’s easiest to just write up the supporting evidence first and then write the introduction last—that way you can be sure that the introduction will match the body of the paper.

Don’t be afraid to write a tentative introduction first and then change it later. Some people find that they need to write a tentative introduction in order to get the writing process started. That’s fine, but if you are one of those people, be sure to return to your initial introduction later and rewrite if necessary.

How to evaluate your introduction draft

Ask a friend to read your introduction and then tell you what he or she expects the paper will discuss, what kinds of evidence the paper will use, and what the tone of the paper will be. If your friend is able to predict the rest of your paper accurately, you probably have a good introduction.

Five kinds of less effective introductions

1. The placeholder introduction. When you don’t have much to say on a given topic, it is easy to create this kind of introduction. Essentially, this kind of weaker introduction contains several sentences that are vague and don’t really say much. They exist just to take up the “introduction space” in your paper. 

Example: Slavery was one of the greatest tragedies in American history. There were many different aspects of slavery. Each created different kinds of problems for enslaved people.

2. The restated question introduction. Restating the question can sometimes be an effective strategy, but it can be easy to stop at JUST restating the question instead of offering a more specific, interesting introduction to your paper. 

Example: The Narrative of the Life of Frederick Douglass discusses the relationship between education and slavery in 19th century America, showing how white control of education reinforced slavery and how Douglass and other enslaved African Americans viewed education while they endured. Moreover, the book discusses the role that education played in the acquisition of freedom. Education was a major force for social change with regard to slavery.

3. The Webster’s Dictionary introduction. This introduction begins by giving the dictionary definition of one or more of the words in the assigned question. If it is important to begin with a definition of a relevant term, it may be far more interesting for you (and your reader) if you develop your own definition of the term in the specific context of your class and assignment. You may also be able to use a definition from one of the sources you’ve been reading for class. Also recognize that the dictionary is also not a particularly authoritative work—it doesn’t take into account the context of your course and doesn’t offer particularly detailed information.  

Example: Webster’s dictionary defines slavery as “the state of being a slave,” as “the practice of owning slaves,” and as “a condition of hard work and subjection.”

4. The “dawn of man” introduction. This kind of introduction generally makes broad, sweeping statements about the relevance of this topic since the beginning of time, throughout the world, etc. It is usually very general (similar to the placeholder introduction) and fails to connect to the thesis. It may employ cliches—the phrases “the dawn of man” and “throughout human history” are examples, and it’s hard to imagine a time when starting with one of these would work. 

Example: Since the dawn of man, slavery has been a problem in human history.

5. The book report introduction. This introduction is what you had to do for your elementary school book reports. It gives the name and author of the book you are writing about, tells what the book is about, and offers other basic facts about the book.  It is ineffective because it offers details that your reader probably already knows and that are irrelevant to the thesis.

Example: Frederick Douglass wrote his autobiography, Narrative of the Life of Frederick Douglass, An American Slave, in the 1840s. It was published in 1986 by Penguin Books. In it, he tells the story of his life.

Writing an effective introduction can be tough. Try playing around with several different options and choose the one that ends up sounding best to you!

BMGT 380:  Introduction to Business Law

This course is designed to enhance your understanding of various legal principles and issues that affect business practices and decisions and their application in business environments. The focus of the course is to identify and examine legal risks and liabilities in operating a business and explore how to minimize and resolve problems associated with risks and liabilities.

The BMGT 380 course comprises five (5) legal themes, including an overview of the legal system, business organizational structures, torts, product liability, contracts, and agency law.

_________________________________________________________________________ 

The BMGT 380 course focuses on the story of a company, The Largo Group (TLG), a business consulting and research company based in Maryland that advises and conducts research for potential owners considering startup businesses and for owners operating new companies.  You and your classmates will be active participants throughout the story, acting as consultant-employees of TLG assigned to complete consulting-related and/or research assignments and projects for TLG clients.

Your TLG assignments begin with an overview of the legal system, important background for business owners.  Other TLG assignments will concentrate on four (4) categories of business law principles that present significant risks and liabilities for startup businesses:

(1) tort law, including negligence, premises liability, and product liability,

(2) contract law, including the Uniform Commercial Code sales and e-contracts,

(3) agency law, and

(4) business organizational structures, sometimes called business forms.

Starting a new business requires extensive preparation, market research, and examination of the legal environment of business.  The success of startups and new companies requires identifying the nature and scope of legal risks and liabilities that affect business practices and decisions.  Exploring ways to prevent, minimize, and resolve risks and liabilities is also essential in forming and operating a business.

The primary focus for the 380 course and assignments for TLG clients will center on the question: 

How can a business owner identify and minimize legal risks and liabilities associated with operating a business?

____________________________________________________________

Background:  The Largo Group (TLG)

After graduating with a B.S. in Management, you have been working for TLG for three years as an assistant consultant for Winnie James and Ralph Anders, senior consultants who serve clients in various industries.   Your work involves interviewing and meeting with clients, conducting research, writing office memoranda, making recommendations for clients, meeting with Winnie, Ralph, and with attorney-consultants, and coordinating and/or leading discussions for TLG’s in-house professional development seminars for its consultants.

Background:  The Formation of Viral Clean

Connor, Denise, Larisa, and Sam are all successful business owners who are friends or professional acquaintances in the business community.  Connor is a Marine veteran that operates his own small company.  Denise has been the Vice-President and Director of Marketing for a Mid-Atlantic-based carpet cleaning company with franchises on the East Coast.   Larisa owns a mid-sized, successful residential remodeling business.   Sam owns a residential cleaning service business.  

The four recently attended a Chamber of Commerce presentation about businesses that clean and sanitize buildings to prevent the spread of the COVD-19 virus.  This spurred their interest, and they went to dinner following the Chamber event to discuss possible business opportunities. 

After several meetings, they decided to start a business together.  The business would focus on using the latest technology to clean and sanitize commercial and residential structures against dangerous viruses.  They also decided that the business would be a retail and wholesale distributor for cleaning and antiviral solutions and personal protective equipment.  They agreed to pursue the possibility of launching a Maryland-based business that they would like to name Viral Clean (“Clean”).  They are committed to operating the new business as an environmentally responsible company using only chemical-free cleaning products in the new business. 

The four met several times with a business consultant to analyze market trends and demands in the cleaning industry and confirm whether Clean would likely be a viable business. Because of the COVID-19 pandemic, the market analysis showed an increased demand and need for this type of business. Consequently, the group decided to move forward with their idea to establish and market Clean.

The group plans to purchase PPE and cleaning supplies from Environmental Pro, Inc. (EPI), a mid-sized manufacturer incorporated in a nearby state, that produces chemical-free, environmentally-friendly cleaning products.  The four are familiar with the corporation as each has purchased EPI products for their respective current businesses.   The four friends intend to resell certain EPI products directly to Clean clients.  The Clean group plans to market and advertise its services and resell EPI products through print, television, radio, internet, and social media.

Clean will be headquartered in a local shopping center.  Clean headquarters will include private business management offices, a reception area, and conference meeting and planning space. Potential and existing customers will be invited to discuss proposals to purchase cleaning products and services.  The business space will also be open to the public to acquire PPE, collect information, inquire about cleaning and sanitizing services, examine cleaning supply displays, and view photos and exhibits from ongoing and past commercial jobs.

The potential Cleaner owners recently attended a startup business seminar sponsored by the local chapter of the Small Business Administration.  Following the seminar, the owners began to define the nature and scope of the work necessary to prepare a plan for the startup business.  They realize this process requires time, thoughtful analysis, and clear guidelines.

They also recognize the need for professional business consultants, such as TLG, to guide their startup for Clean.  Consequently, the four have hired TLG to advise and guide them through the startup process for Clean.

Clean Owner Profiles:

Connor:    

Connor is a veteran of the United States Marine Corps.  Although he retired from the military, he operates his own business. 

He wants an initial 30%-40% interest in Clean but wants to limit his future capital commitment until he is confident the business is operating smoothly and profitably.  He does, however, want the option to acquire others’ interests if they die or leave the company for any reason.   He also wants to take out money from the business, in the form of salary, benefits, expenses, and/ dividends, as appropriate, as soon as Clean has a healthy net profit margin.

Connor is most concerned about liability. Although he trusts the other owners as “straight shooters” and successful business persons, he is uneasy about working with a group of investors with whom he has no previous business connections.  He wants to limit his liability in the business to no more than his capital contribution, and he prefers complete protection.  If possible, he wants Key Man Insurance for the owners to have protection if one owner can no longer contribute to the business for any reason.

Connor wants a managerial position so he can make decisions for day-to-day operations.  He believes he is the best person to run the business as he currently owns a maid service and understands how to run a successful cleaning service business.

Denise: 

Denise is a first-generation college graduate of Spelman College.  Denise’s parents raised her in Baltimore, MD.  However, both of her maternal grandparents were leaders in the Civil Rights Movement in Georgia in the 1960s. 

Although Denise will be a Clean business owner, she plans to retain her V.P. position with the carpet cleaning company.  Denise wants a 25% interest and prefers to minimize additional investments to protect her cash assets needed for her other businesses.  Her main goal is to realize a return on her investment as quickly as possible.

Denise wants to minimize her personal liability and protect her interests in the event of bankruptcy or the death of any of the other owners.

Denise wants to participate in long-term business decisions and major decisions about spending and organizational commitments. Still, she does not want to be involved in day-to-day business activities.  She favors hiring a general manager to run the business, preferably one with commercial cleaning experience.

Larisa:   

Larisa has an MBA from the Wharton Business School at the University of Pennsylvania.  Her family immigrated from Mexico in the 1980s.  Before leaving Mexico, Larisa’s parents owned a cleaning business in Mexico City. 

Larisa initially wants to invest up to 40% and is willing to invest another 5% because she knows startup businesses often need more capital.  She favors a larger, rather than a smaller, stake in the company.  She wants to take out as much money as possible from the business as soon as financially possible.

Larisa wants to minimize personal liability, as well as liability for the business.  She realizes the future of the industry is uncertain, and she wants maximum protection against all pitfalls.

Larisa wants to use her MBA.  Larisa, therefore, is willing to be involved in day-to-day business operations and has the time to do so because her other business is running smoothly with competent managers.  She wants to play a vital role in establishing the structure, business environment, and culture for Clean along with the other owners.   However, she believes that a skilled general manager with commercial cleaning experience would be optimal.

Sam: 

Sam is a recent graduate of Montgomery Community College.  In college, he majored in Operations Management and Business Analytics. 

Sam is willing to commit to an investment of 51% interest in Clean but is agreeable to a lesser interest. 

Sam wants to minimize his personal liability and prefers to limit it to his capital investment but is willing to negotiate.

With a maximum interest of 51%, Sam wants complete control over business operations; even with a lesser interest, he wants a strong managerial position.  Sam wants all owners with a minority interest to be silent in the day-to-day management of Clean.

Writing Concluding Paragraphs

Writing Conclusions

Introductions and conclusions can be difficult to write, but they’re worth investing time in. They can have a significant influence on a reader’s experience of your paper.

Just as your introduction acts as a bridge that transports your readers from their own lives into the “place” of your analysis, your conclusion can provide a bridge to help your readers make the transition back to their daily lives. Such a conclusion will help them see why all your analysis and information should matter to them after they put the paper down.

The conclusion allows you to have the final say on the issues you have raised in your paper, to synthesize your thoughts, to demonstrate the importance of your ideas, and to propel your reader to a new view of the subject. It is also your opportunity to make a good final impression and to end on a positive note.

Your conclusion can go beyond the confines of the assignment. The conclusion pushes beyond the boundaries of the prompt and allows you to consider broader issues, make new connections, and elaborate on the significance of your findings.

Your conclusion should make your readers glad they read your paper. Your conclusion gives your reader something to take away that will help them see things differently or appreciate your topic in personally relevant ways. It can suggest broader implications that will not only interest your reader, but also enrich your reader’s life in some way. It is your gift to the reader.

Strategies for writing an effective conclusion

One or more of the following strategies may help you write an effective conclusion:

· Play the “So What” Game. If you’re stuck and feel like your conclusion isn’t saying anything new or interesting, read each statement from your conclusion, and ask, “So what?” or “Why should anybody care?” Then ponder that question and answer it.

Here’s how it might go: You ask: Basically, I’m just saying that education was important to Douglass. So what? Your answer: Well, it was important because it was a key to him feeling like a free and equal citizen.  You ask:   Why should anybody care? Your answer: That’s important because plantation owners tried to keep slaves from being educated so that they could maintain control. When Douglass obtained an education, he undermined that control personally.  

Return to the theme or themes in the introduction. This strategy brings the reader full circle. For example, if you begin by describing a scenario, you can end with the same scenario as proof that your essay is helpful in creating a new understanding. You may also refer to the introductory paragraph by using key words or parallel concepts and images that you also used in the introduction.

· Synthesize, don’t summarize. Include a brief summary of the paper’s main points, but don’t simply repeat things that were in your paper. Instead, show your reader how the points you made and the support and examples you used fit together. Pull it all together.

· Include a provocative insight or quotation from the research or reading you did for your paper.

· Propose a course of action, a solution to an issue, or questions for further study. This can redirect your reader’s thought process and help her to apply your info and ideas to her own life or to see the broader implications.

· Point to broader implications. For example, if your paper examines the Greensboro sit-ins or another event in the Civil Rights Movement, you could point out its impact on the Civil Rights Movement as a whole. A paper about the style of writer Virginia Woolf could point to her influence on other writers or on later feminists.

Strategies to avoid

· Beginning with an unnecessary, overused phrase such as “in conclusion,” “in summary,” or “in closing.” Although these phrases can work in speeches, they come across as wooden and trite in writing.

· Stating the thesis for the very first time in the conclusion.

· Introducing a new idea or subtopic in your conclusion.

· Ending with a rephrased thesis statement without any substantive changes.

· Making sentimental, emotional appeals that are out of character with the rest of an analytical paper.

· Including evidence (quotations, statistics, etc.) that should be in the body of the paper.

Four kinds of ineffective conclusions

· The “That’s My Story and I’m Sticking to It” Conclusion. This conclusion just restates the thesis and is usually painfully short. It does not push the ideas forward.  Example: In conclusion, Frederick Douglass was, as we have seen, a pioneer in American education, proving that education was a major force for social change with regard to slavery.

· The “Sherlock Holmes” Conclusion. Sometimes writers will state the thesis for the very first time in the conclusion. You might be tempted to use this strategy if you don’t want to give everything away too early in your paper. You may think it would be more dramatic to keep the reader in the dark until the end and then “wow” him with your main idea, as in a Sherlock Holmes mystery. The reader, however, does not expect a mystery, but an analytical discussion of your topic in an academic style, with the main argument (thesis) stated up front. Example: (After a paper that lists numerous incidents from the book but never says what these incidents reveal about Douglass and his views on education): So, as the evidence above demonstrates, Douglass saw education as a way to undermine the slaveholders’ power and also an important step toward freedom.

· The “America the Beautiful”/”I Am Woman”/”We Shall Overcome” Conclusion. This kind of conclusion usually draws on emotion to make its appeal, but while this emotion and even sentimentality may be very heartfelt, it is usually out of character with the rest of an analytical paper. A more sophisticated commentary, rather than emotional praise, would be a more fitting tribute to the topic. Example: Because of the efforts of fine Americans like Frederick Douglass, countless others have seen the shining beacon of light that is education. His example was a torch that lit the way for others. Frederick Douglass was truly an American hero.

· The “Grab Bag” Conclusion. This kind of conclusion includes extra information that the writer found or thought of but couldn’t integrate into the main paper. You may find it hard to leave out details that you discovered after hours of research and thought, but adding random facts and bits of evidence at the end of an otherwise-well-organized essay can just create confusion. Example: In addition to being an educational pioneer, Frederick Douglass provides an interesting case study for masculinity in the American South. He also offers historians an interesting glimpse into slave resistance when he confronts Covey, the overseer. His relationships with female relatives reveal the importance of family in the slave community.

PLEASE READ “essential information about this course” before proceeding – this is essential.  

General Instructions for Learning Activities   

Read/watch all assigned materials listed for the week in Overview above

Use only assigned materials to complete Learning Activities; please do not use the internet unless otherwise instructed

Include in-text citations and a Reference List for in-text citations in APA format 

Write in correct, complete sentences, in paragraph format unless otherwise instructed

Refer to course materials, cases, and/or statutes to support conclusions in discussion postings. 

· Use in text citations and a References list for Part 1 using APA format

· Please do not use any direct quotations; summarize/paraphrase information from all resources as this demonstrates understanding of the information and its application 

 

Introductory Sentence:  Begin with an introductory sentence or brief paragraph that states your conclusion to the questions asked  (Please read writing introductory sentences)

Concluding Sentence:  End the discussion with a concluding sentence or a brief paragraph that summarizes your conclusion/what you discussed (Please read writing concluding sentences)

Support Arguments and Positions:   Please refer to the module in Content, “How to Support Arguments and Positions” (Please read writing supporting argument)

Support all conclusions in detail, specifically, in depth, and with reference to relevant assigned course materials using APA citation format

Label all parts of assignment

Use correct, complete sentences in paragraph format

Submit Learning Activities to Assignment Folder

Review Content modules:

· Writing Introductory Sentences and Paragraphs

· Writing Concluding Paragraphs

· How to Support Arguments and Positions

Part 1

Background Facts You Need To Know: 

Viral Clean (Clean) is incorporated and located in Maryland, but it engages in business in all Mid-Atlantic states. Clean uses its line of disinfectant and cleaning products, and it also sells its products to other companies via the internet.

Recently, the Delaware legislature enacted a law banning all sales and importation, until further notice, of Clean’s Shine-It surface cleaner in Delaware, The Delaware Attorney General’s Office investigated consumer complaints. It discovered that one of the ingredients in Shine-It is contaminated and causes a quick-growing mold to spread on surfaces to which it is applied. The mold can be toxic to humans and can cause damage to surfaces.

Clean wants to continue selling Shine-It in Delaware.  If Clean can sell Shine-It in Delaware, it will increase its income and profits.  Clean, therefore, intends to challenge the new law as unconstitutional, and it has consulted TLG for advice.   

Winnie and Ralph ask you to prepare a summary report of relevant constitutional law for a meeting with them and Clean’s owners.

Instructions

Report You Need to Prepare: Prepare a report that addresses the following three questions:

1. Analyze and explain whether the Delaware restriction on the sale of Shine-It violates the Interstate Commerce Clause.

Fully explain your conclusions based on constitutional law.

2. Analyze whether the doctrine of “police powers” derived from the 10th Amendment of the U.S. Constitution applies to the Delaware law.

Fully explain your conclusions based on constitutional law.

3. Discuss why it is essential for businesses to understand the impact of the Interstate Commerce Clause and state police powers.

Part 2

Background/Facts:  Determining jurisdiction in the courts can be confusing and complicated, but it is an important legal doctrine that businesses cannot ignore.  Jurisdiction can affect business operations and determine business decisions, such as where the business is located and where and how to advertise and market the business.  Where there are questions about possible jurisdiction in the courts, companies should consult an attorney.

TLG’s client, Clean, is facing other litigation and needs advice.  

Clean is located in Maryland, but it advertises aggressively in all Mid-Atlantic States of Maryland, Delaware, Pennsylvania, West Virginia, and Virginia via the internet, social media, television, and mailings.

Recently Clean contracted with ABC Corporation (ABC), incorporated in Virginia, to clean ABC’s offices in Norfolk, Virginia. ABC paid for the cleaning and sanitizing services but later was dissatisfied with the services and sued Clean in Virginia to recover the cleaning costs.  ABC is trying to decide whether it should file the case in Virginia or Maryland state court.

1. Applying the concept of personal jurisdiction to the scenario facts, discuss why you agree or disagree that the Virginia court has personal jurisdiction over Clean. 

2. Applying the concept of personal jurisdiction to the scenario facts, discuss whether the Maryland court has personal jurisdiction over Clean.

Textbook Resources

1. Introduction to Law and Legal Systems

https://saylordotorg.github.io/text_government-regulation-and-the-legal-environment-of-business/s04-introduction-to-law-and-legal-.html

2. Courts and the Legal Process

https://saylordotorg.github.io/text_government-regulation-and-the-legal-environment-of-business/s06-courts-and-the-legal-process.html

3. Constitutional Law and US Commerce

https://saylordotorg.github.io/text_government-regulation-and-the-legal-environment-of-business/s07-constitutional-law-and-us-comm.html

4. Civil Law vs. Criminal Law

https://www.diffen.com/difference/Civil_Law_vs_Criminal_Law

U.S. Constitution

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

–Preamble to the United States Constitution

The Constitution acted like a colossal merger, uniting a group of states with different interests, laws, and cultures. Under America’s first national  government, the Articles of Confederation, the states acted together only for specific purposes. The Constitution united its citizens as members of a whole, vesting the power of the union in the people. Without it, the American Experiment might have ended as quickly as it had begun.

Police Powers Law and Legal Definition

Police powers are granted to states in the 10th Amendment to the U.S. Constitution, which reserves to the states the rights and powers “not delegated to the United States,” which include protection of the welfare, safety, health and even morals of the public. Police powers denotes the basis for many regulatory subjects, such as licensing, inspection, zoning, safety regulations, and working conditions as well as law enforcement. Police powers may be used, for example to detain people or search things like vehicle.

It is a general term that expresses the fundamental power vested in every state to limit and regulate the exercise of private rights in the interest of public health, public morals, public safety, and the general welfare of the community. Governments have exercised police power to prohibit the sale of liquor and cigarettes and gambling. Cities and towns have prohibited the making of bricks in a town, the maintenance of livery stables, public laundries, billboards, public garages, coal yards and slaughterhouses.

The Police Power

Police power is the right to protect the country and its population from threats to the public health and safety. The term “police power” predates the development of organized police forces, which did not develop until the postcolonial period. In the colonial period, police power was used to control nuisances, such as tanneries that fouled the air and water in towns, to prevent the sale of bad food, and to quarantine persons who were infected with communicable diseases. Many of the colonies had active boards of health to administer the police power. This was one of the main governmental functions in the colonial period.

Under the Constitution, the states retained much of their police power but share the right to regulate health and safety issues with the federal government. Examples of the federal use of the police power are food and drug regulations, environmental preservation laws, and workplace safety laws. The states have companion laws in most of these areas, plus local public health enforcement such as restaurant inspections, communicable disease control, and drinking water sanitation. In most cases, the states share jurisdiction with the federal government and the courts will enforce whichever is the more strict law. State and local public health laws are exercises of the police power.

Jurisdiction

Jurisdiction is the authority granted by law to the courts to rule on legal matters and render judgments, according to the subject matter of the case, and the geographical region in which the issue took place. Areas of jurisdiction apply to local, state, and federal laws, which means that, for instance, a violation of federal law is tried in federal court. To explore this concept, consider the following jurisdiction definition.

Definition of Jurisdiction

Noun

1. The power and authority to administer justice by hearing and deciding legal cases

2. The territory over which such authority is exercised

3. The geographical area of a court’s legal authority, or of a law enforcement agent’s authority

Origin

1250-1300       Middle English <Latin jūris dictiōn

What is Jurisdiction

Jurisdiction is the term that refers to the limits of a legal authority. It can refer to both political territories and geographic regions, as well as the types of legal matters over which a legal body has authority. A formally authorized legal body is a court, political or governmental office, and in many situations, law enforcement agency. When a legal body holds jurisdiction, it has the authority to administer justice within that jurisdiction.

In the court system, there are three primary types of jurisdiction: subject matter, territorial, and in personam jurisdiction. If a court without proper jurisdiction hears a case, it does not have the authority to render a judgment, to provide the plaintiff with a remedy to his legal issue, or to hand down sentencing. For this reason, it is important for all parties involved to be sure the case has been filed in a court of proper jurisdiction. This is one of the first things that should be determined by the judge as well, before allowing the case to proceed.

Typically, a court holds more than one jurisdiction type in any case. This might mean the court can hear cases that originate in its geographical jurisdiction, and it has subject matter jurisdiction as well. As an example of jurisdiction, a family law court has the authority to hear and decide matters related to divorce, child custody, child support, and other related issues, if the family lives in its geographical region. Family court does not, however, have jurisdiction to hear a criminal case, even if it somehow relates to a family issue.

For example:

Jack and Anna have separated and are going through the divorce process, including a child custody battle. Anna initially left Jack after he had beat her up badly, putting her in the hospital, and sending the children to stay with their grandparents. Jack was arrested that day, and charged with felony spousal assault.

The family court is handling the issues of divorce and child custody, which are greatly affected by the behavior of the father for the past several years. It does not, however, have authority to try Jack on his criminal charges. That authority rests solely with the criminal court.

Courts of General Jurisdiction

Courts of general jurisdiction have authority to hear any type of case within its geographical and governmental jurisdiction, except where prohibited by law. These courts are often called “district courts,” or “superior courts,” depending on the state. In the state of New York, the state court of general jurisdiction is called the “Supreme Court,” which can be confusing, as it is not actually the state’s supreme court.

This means, for instance, that a state trial court of general jurisdiction might have authority to hear cases regarding a variety of subjects, within its geographical and governmental jurisdiction. In most states, however, the superior or district courts are divided by subject matter, with a specified court assigned all cases dealing with that topic. For instance, separate courts, or judges, will hear family court matters, civil lawsuits, small claims lawsuits, traffic court, drug court, and criminal court. These are known as courts of “limited jurisdiction.”

Determining Whether a Court Has Jurisdiction

In order to determine which court has jurisdiction over a legal matter certain questions must be addressed. These are:

1. Which court has jurisdiction in that geographical area (a civil lawsuit for an accident that occurred in Florida cannot generally be heard in California)

2. Which court has jurisdiction over the 
defendant
 (or over the person being charged or sued)

3. Which court has jurisdiction over the subject matter (is it family law, traffic violation, or civil lawsuit)

If the court in which any legal matter is filed lacks jurisdiction in even one of these areas, it does not have the authority to render judgment.

Subject Matter Jurisdiction

Subject matter jurisdiction is the authority of a court to hear cases involving a certain subject matter. A few examples of subject matter include bankruptcy, divorce, civil rights violations, and probate. The purpose of dividing a court system into such subject matter jurisdictions is to ensure that judges hearing certain types of cases are experienced in that area of law, as they work within it on a daily basis. It is just common sense that a judge specializing in bankruptcy cases not be allowed to hear a personal injury lawsuit.

Some types of jurisdiction, or lack thereof, can be waived by the parties, allowing the court to hear the case anyway. Subject matter jurisdiction, however, cannot be waived. If a court that does not have subject matter jurisdiction over a case makes a ruling on that case, the ruling can be invalidated.

For example:

As Alton was backing out of a parking space at the local mall, another car speeding down the aisle struck his car. While he had a stiff neck from the impact, Alton was more concerned about getting his car repairs taken care of, but the other driver’s insurance company is denying his claim.

A couple of weeks later, when Alton has to seek medical attention for the worsening pain in his neck and shoulder, he realizes he will have to file a civil lawsuit against the man who hit him, and against his insurance company. Alton knows where the courthouse is because he had hearings on his divorce there two years ago.

When Alton takes his civil lawsuit complaint to be filed with the court, he is told that the family law court cannot hear his personal injury lawsuit. Alton is redirected to the court that has subject matter jurisdiction over civil lawsuits and personal injury, to file his claim.

General Jurisdiction in State Courts vs. Federal Courts

While most states have courts of general jurisdiction, even if they have a system of courts with limited jurisdiction. On the other hand, the federal court system is limited by Article III of the U.S. Constitution as to subject matter. A primary issue in whether a federal court has jurisdiction over a civil case is whether the plaintiff has claimed a violation of the U.S. Constitution or federal law has occurred. This is referred as “federal-question jurisdiction.”

Criminal cases may be brought in either a state or federal court, depending on whose laws were violated. A defendant charged with violating a state theft law cannot be charged with that crime in a federal court. If he is accused of violating a federal law, such as trafficking in child pornography, he can be charged and tried in federal court. In some cases, a person may be charged and tried in both state and federal courts related to different elements of the same crime, and it has been ruled that this does not amount to 
double jeopardy
.

Territorial Jurisdiction

Territorial Jurisdiction refers to the authority a court has over cases within its specific geographical territory. If the court lacks territorial jurisdiction, it does not have the authority to make a ruling, or to hand down a sentence. Unlike subject matter jurisdiction, the defendant may be allowed to waive territorial jurisdiction in certain cases.

Territorial jurisdiction also applies to the geographical territory of a law enforcement agency, and therefore the prosecutor for that region. For instance, if Bob commits a crime in Bakersfield, California, the Bakersfield police have the authority to investigate, and the District Attorney for Bakersfield has the authority to bring criminal charges and prosecute the case. The criminal case would then be heard in the state court in Bakersfield.

There are certain exceptions. If someone is accused of committing crimes in more than one county or city within a single state, the crimes could be prosecuted in any of those jurisdictions, or each may choose to prosecute separately for the crime committed within its boundaries. If that person committed crimes in more than one state, or crossed state lines while committing the crime, the federal court has territorial jurisdiction.

In Personam Jurisdiction

The Latin term in personam jurisdiction, refers to a court’s jurisdiction over the person, though it also applies to an entity. Legal actions must be filed in a court that has some connection to the event, or to the parties involved. This only comes into play in certain situations. For instance, Jack drives across the boarder from his construction business in California, to do some construction repairs on a home in Nevada, then returns home. Later, the homeowner complains that Jack’s work was terrible, and that he was bilked out of his hard-earned money.

The homeowner files a civil lawsuit in Nevada, but Jack complains to the court that, because the homeowner hired the services of his business, which is based in California, it has no jurisdiction. The lawsuit should be filed in California. Generally, the Nevada court has no jurisdiction over Jack or his construction company, as they are based in another state. That court can, however, assert in personam jurisdiction, or personal jurisdiction, over Jack and his company, and hear the case where the work was done.

Police jurisdiction

Like the courts, law enforcement agencies are subject to issues of jurisdiction. Police jurisdiction refers primarily to the agency’s assigned geographic region. Within a single state, there may be several law enforcement agencies, which work together in a sort of choreographed maneuver:

· City police officers – have authority only within their city’s limits

· County sheriff’s deputies – have authority within their county, not including activities within the city limits

· State police or state troopers – have authority to act within their state, though they have authority only in limited circumstances within a county or city’s geographical regions

Each of these law enforcement agencies has their own territories, or police jurisdiction, but they work together to help ensure services are provided seamlessly between the regions. For instance, if city police chase a car across the city limits, they may be joined by county deputies to bring the chase to an end. State police often have broad authority, and are invited into the city or county jurisdictions to assist in certain cases.

Federal law enforcement officials have authority to arrest a person who has violated a federal law, regardless of which jurisdiction he is in. This is because they have authority to act when federal laws are violated, regardless of location within the U.S.

In general, a law enforcement officer does not have the authority to arrest someone outside his jurisdiction. Similarly, an off duty police officer, who is on vacation in another state, has no authority to detain or arrest someone in his official capacity as a police officer. This lack of police jurisdiction does not prevent the officer from making a citizen’s arrest while waiting for officers to arrive.

An Example of Jurisdiction

One of the first considerations for any court in the land is whether it has jurisdiction over any case brought before it. Laypeople bringing their own suit are often unaware of limitations to jurisdiction, which is understandable. This leaves the court responsible for making that determination before the case can move forward.

Foreign Company Sued over Faulty Part

In the 1980s, a young couple were riding a motorcycle which crashed because of a faulty valve that had been produced in Japan. The driver was seriously injured, and his wife, riding as passenger, was killed in the accident. The victim filed a civil lawsuit in the California court, where the victims lived, and the accident happened, against the Taiwanese distributor of the value, Cheng Shin Rubber Industrial Co. Cheng Shin Rubber had purchased the valves to use in their assembly of thousands of motorcycle wheels.

Cheng Shin filed a complaint with the court, asserting that the faulty valves had been manufactured by Asahi Metal Industry Co, in Japan, and that Cheng Shin had no knowledge that they were faulty. The complaint asked to be relieved of responsibility in the lawsuit, and that Asahi instead be held responsible. Asahi argued that the court in California had no jurisdiction over the company. The California court, however, ruled that it had personal jurisdiction based on the company’s awareness of the scope to which its products would be distributed internationally.

A series of appeals ensued, until the matter was brought before the U.S. Supreme Court in 1986. In 
Asahi Metal Indus. v. Superior Court
 the Court addressed the issue of whether the state court properly took personal jurisdiction over the Japanese company, simply by the fact that it should have known that its products, which were sold to a Taiwanese company, and shipped directly to that company, would make it into the California market.

The Court applied the following test to determine whether the state court could assert personal jurisdiction over a foreign defendant:

· What is the burden on the defendant to bring his case in a foreign land?

· What are the interests of the state in which the lawsuit was filed in the litigation?

· What is the interest of the plaintiff in litigating the matter in that state?

· Does the allowance of personal jurisdiction serve interstate efficiency?

· Does the allowance of personal jurisdiction serve interstate policy interests?

The U.S. Supreme Court ruled that California could not claim personal jurisdiction over the Japanese company, which has no presence in the U.S., does no business in the country, and owns no property in the country. The Court held that, should the California court be allowed to exercise jurisdiction over Asahi, the act would be “unreasonable and unfair.”

Related Legal Terms and Issues

· Appellate Court – A court having jurisdiction to review decisions of a trial-level or other lower court.

· Authority – The right or power to make decisions, to give orders, or to control something or someone.

· Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.

· Judgment – A formal decision made by a court in a lawsuit.

· Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.

Jurisdiction in Cyberspace

This article was edited and reviewed by 

FindLaw Attorney Writers
 | Last updated March 26, 2008

American Bar Association Section of Business Law
Cyberspace Law Committee

Coping with Personal Jurisdiction in Cyberspace
ABA Subcommittee on Internet Law Liability Report #3

Until the Internet’s advent, a business operating within one state was subject to suit only in that state. Only a business developing a national or international focus had to assess the risk of becoming subject to suit in other states or countries. Performing that risk assessment was usually simple. Traditionally, whether a particular court can exercise control over a particular defendant depends on their physical locus, described in such terms as residence, domicile or place of business. For example, a corporation can generally be sued in any state where it maintains a place of business. The Internet introduces a new dimension towards the question of where a party is subject to suit. If a company has a Web site, it has a presence everywhere that Web site can be accessed. In short, across the entire world. Over the Internet, an individual can have the same impact on entities in other states and countries as can a multi-national corporation. Now, even smaller businesses must assess the risk, arising from use of the Internet, of becoming subject to suit in other states or countries. The location of a company’s cyberassets, its maintaining a Web site, or its use of the Internet can all effect where it is subject to suit.

Top of Form

Bottom of Form

Already, numerous courts have examined the question of when a defendant’s operation of a Web site creates personal jurisdiction. The decisions of these courts are not always consistent, but they are starting to reflect some common themes. This paper’s purpose is not to review the body of decisional law,[1] but to examine the emerging themes and discuss their application to actual business planning.

Personal Jurisdiction Basics

The judicial decisions to date in the United States, regardless of their result, are based upon well-developed and long established personal jurisdiction doctrines. Understanding these doctrines is essential to analyzing the emerging decisional law related to Internet use. Personal jurisdiction is based on the interaction between an affirmative statutory or common-law source law dictating the scope of the court’s jurisdiction, and limitations imposed by constitutional due process rights. State courts can always assert jurisdiction over an entity or things physically present in the state.

[2]

 State courts also assert personal jurisdiction over entities located outside of the state using “long-arm statutes.” Long-arm statutes differ from state to state, but tend to be similar. The Uniform Interstate and International Procedure Act is typical.

1.02 [Personal Jurisdiction Based upon Enduring Relationship]

A court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, this state as to any [cause of action].

1.03 [Personal Jurisdiction Based on Conduct]

(a) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a [cause of action] arising from the person’s:

(1) transacting any business in this state;

(2) contracting to supply services or things in this state;

(3) causing tortious injury by an act or omission in this state; [or]

(4) causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state…

(b) When jurisdiction over a person is based solely upon this section, only a [cause of action] arising from acts enumerated in this section may be asserted against him.

[3]

In determining whether the court has jurisdiction, the first step is to examine the applicable long-arm statute, or common-law equivalent, to determine whether the statute grants the court jurisdiction over the out-of-state defendant. The second step is to evaluate whether the exercise of jurisdiction in the particular case violates due process rights granted under the United States Constitution.

[4]

Constitutional due process is satisfied if the defendant has “minimum contacts” with the forum state so that subjecting the defendant to suit in that state satisfies considerations of “fair play and substantial justice.”

[5]

In determining whether “minimum contacts” exist, the court should consider “the relationship among the defendant, the forum, and the litigation.”

[6]

 In determining whether exercising jurisdiction will satisfy “traditional notions of fair play and substantial justice” the court should focus on the contacts in light of other factors such as:

1. the burden on the defendant;

2. the forum state’s interest in adjudicating the dispute;

3. the plaintiff’s interest in obtaining the most efficient resolution of the controversy;

4. the interstate judicial system’s interest in most efficient resolution of controversies; and

5. the shared interest of the several states in furthering fundamental substantive social policies.

[7]

Establishing jurisdiction requires “some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.”

[8]

Activities within a state that can result in a party subjecting itself to suit in that state include purposefully selling goods in the state,

[9]

 maintaining a physical office or store in the state, entering into a contract with someone in the state,

[10]

 or committing a tortious act within the state. In general, the more passive the defendant was with respect to a transaction, and the fewer events related to the transaction occurred within the forum state, the less likely the court will exercise jurisdiction over the defendant. The difficulty arises in determining when maintaining a Web site, accessible to people in a state, is an activity directed at a state sufficient to allow the state to exercise personal jurisdiction over the Web site owner.

Personal Jurisdiction, Multimedia and Broadcasting

In evaluating the ability to obtain personal jurisdiction over a defendant due to operation of a Web site, a parallel can be drawn to print publications. Print publications, like Web sites, come into contact with several jurisdictions, based on conduct that occurs primarily in one location. Print publications are created by conduct concentrated at the location of the author and publisher. The activity creating a Web site occurs in the state in which the Web site is developed, and the locus of the Web server. However, like a broadly distributed magazine or broadcast, a Web site is accessible everywhere.

The United States Supreme Court has held that a state can exercise personal jurisdiction over a publisher accused of publishing libelous material about a resident of that state when the publisher targets its economic activity at that state. In Keeton v. Hustler Magazine, Inc.[11], the United States District Court for the District of New Hampshire was able to exercise personal jurisdiction over an Ohio corporation because the defendant’s magazine circulation in the state of New Hampshire created minimum contacts with that state. Jurisdiction was appropriate because of the state’s interest in discouraging libel by the defendant against its citizens.

In a companion case, Calder v. Jones [12], the Supreme Court held that a California court could exercise personal jurisdiction against an author and editor, both resident in Florida, who had libeled a California resident in an article published in the National Enquirer newspaper. The court determined that the defendants had purposefully targeted their libelous activity at California by publishing their article containing libelous material about a California resident in a magazine which they knew was sold and circulated in California and “must reasonably anticipate being haled into court” in California.

In these cases, the tortious act is the knowing publication in the state attempting to exercise personal jurisdiction over the defendant. The results differ if the tortious act is unrelated to the act of publication. If, instead of publishing an article in a magazine or newspaper circulated in the forum state, the defendant submits advertising to a nationally circulated magazine or newspaper, the fact of that advertising is generally not sufficient to create jurisdiction, unless the claim arises from the advertising. For example, in 

IDS Life Insurance Company v. SunAmerica, Inc.,[13]

 the defendant advertised in nationally circulated newspapers and magazines and on national television, and maintained an Internet Web site. The District Court for the Northern District of Illinois held that such advertising did not involve systematic and continuous contact with the forum state, Illinois, and concluded that it did not have personal jurisdiction over the defendant.

[14]

 In Gaingolo v. Walt Disney World Co.[15] a district court judge noted that allowing national advertising to make a defendant subject to suit wherever the advertisement appeared would “substantially undermine the law of personal jurisdiction.”

Personal Jurisdiction Based on Internet Contacts

Based on the rules expressed in cases like IDS Life Insurance and Gaingolo, operating a Web site or advertising on the Internet should not, by itself, subject a party to global jurisdiction. But, based on the Keeton and Calder decisions, a person committing a tortious act using the Internet should expect to be subject to jurisdiction in the state at which the tortious act is directed. Several courts have addressed the issue of whether maintaining a Web site accessible from a state subjects the owner of the Web site to personal jurisdiction in that state.

The developing theme in the cases is to base jurisdiction on the extent to which the activity performed by maintenance of the Web site is directed toward the forum state. Important factors include the level of interactivity in the Web site, whether the Web site content is directed toward an audience including residents of the forum state, whether the Web site has been accessed by residents of the forum state, or whether a particular activity of the Web site giving rise to the cause of action was directed at the forum state. Some decisions have expressed this analysis as sorting Web sites into three categories.

[16]

 Where the defendant actively does business over the Internet directed at the forum state, the forum state can exercise jurisdiction over the defendant. Where the Web site provides a lower level of interactivity by allowing the defendant to exchange information with customers over the Internet, the court must assess the level of interactivity and commercial nature of the Web site to determine if sufficient contacts exist to warrant the exercise of jurisdiction. Where the defendant passively provides information or an advertisement on a Web site, without other contacts existing with the forum state, the forum state can not exercise personal jurisdiction over the defendant.

Most Internet jurisdiction cases, like that resulting in the Panavision International, L.P. v. Toeppen decision, involve trademark disputes involving use of the Web site domain name and hold that the forum state can exercise jurisdiction over the owner of the Web site because the infringing conduct targets the forum state and thus creates a basis for specific jurisdiction.

[17]

 As in the publishing arena, the Web site must knowingly target potential viewers in the forum state. An alleged injury related to the operation of the Web site is insufficient to create jurisdiction where the Web site operation is not directed at the forum state and no other contacts with the forum state are found.

[18]

 Further, when Web site operation is unrelated to the conduct, courts have generally not allowed exercise of general jurisdiction based on the presence of a passive advertising Web site.

[19]

One early decision is Inset Systems, Inc. v. Instruction Set, Inc.[20] A Massachusetts corporation allegedly used a Connecticut corporation’s trademark as its domain name. The defendant advertised its goods for sale using a Web site available through the contested domain name. The Connecticut “long-arm” statute[21] allows personal jurisdiction over a non-resident on any cause of action arising from business solicited within Connecticut, if the solicitation was repeated. The court concluded that advertising using a Web site, by itself, is a sufficiently repetitive contact sufficient to allow Connecticut to exercise personal jurisdiction under its “long-arm” statute. The court then, in addressing the constitutional issues, stated that:

In the present case, Instruction has directed its advertising activities via the Internet and its toll-free number toward not only the state of Connecticut, but to all states…advertisement on the Internet can reach as many as 10,000 Internet users within Connecticut alone. Further, once posted on the Internet, unlike television and radio advertising, the advertisement is available continuously to any Internet user. ISI has therefore, purposefully availed itself of the privilege of doing business within Connecticut.

The United States District Court for the Eastern District of Missouri reached a similar result in Maritz, Inc. v. Cybergold, Inc. In that case, which also involved a trademark dispute over use of a domain name, a California company advertised on the Internet and received at least 131 hits from Missouri residents. The District Court held that this was sufficient for a Missouri court to obtain personal jurisdiction over the California defendant.

The United States Court of Appeals for the Ninth Circuit reached a different result in another trademark case, Cybersell, Inc. v. Cybersell, Inc.,[23] because it determined that the Web site was not directed at the forum state. The plaintiff was an Arizona corporation that advertises for commercial services over the Internet. The defendant was a Florida corporation that offered Web site construction services over the Internet under the name “Cybersell.” The court found that no part of the defendant’s business was sought or achieved in Arizona. The only contact with Arizona was the fact that the defendant’s Web site was accessible over the Internet by Arizona residents. The court held that this contact, constituting mere passive advertising, was insufficient to provide a basis for jurisdiction.

Both the Inset and Cybergold cases involved a trademark dispute over a domain name being used by the defendant in interstate commerce. Thus, the cause of action was related to the defendant’s contact with the forum state. In the IDS Life Insurance Company v. SunAmerica, Inc. case, the United States District Court for the Northern District of Illinois addressed the question of obtaining personal jurisdiction over an out-of-state defendant in a tort case where the cause of action was unrelated to the Internet advertising. The Illinois “long-arm” statute allows an Illinois court to exercise personal jurisdiction over an out-of-state defendant if the defendant is doing business in Illinois by carrying on “continuous and systematic” business in the state.

[24]

 The court compared the defendant’s advertising on its Web site with the defendant’s advertisements in nationally circulated newspapers and magazines and on national television. The court concluded that maintaining advertising on a Web site, although accessible in Illinois, does not constitute an advertisement directed at Illinois and therefore Illinois could not exercise personal jurisdiction over the defendant.

International Personal Jurisdiction

Cases examining whether a Web site maintained outside of the United States can allow a United States court to exercise personal jurisdiction over the Web site owner follow the same analysis as the purely domestic cases. The first case to discuss the issue of specific jurisdiction in an international context was 

Minnesota v. Granite Gate Resorts, Inc.[26]

Granite Gate Resorts, Inc., a Nevada Corporation, advertised on the Internet a Web site known as WagerNet. WagerNet was maintained on a web server located in Belize by a Belize registered corporation. The Minnesota Attorney General took the position that his state can exercise personal jurisdiction over any party which uses the Internet to conduct any activity illegal in Minnesota. He filed a complaint against Granite Gate Resorts, Inc. alleging deceptive trade practices, false advertising and consumer fraud for advertising in Minnesota. The Minnesota Court of Appeals held that because the Web site was accessible by Minnesota residents, and because the defendant had directed its advertisements at customers in the United States, including residents of Minnesota, it could exercise personal jurisdiction over the defendant.

In 

Weber v. Jolly Hotels,[27]

 the United States District Court for the District of New Jersey addressed whether a United States court could exercise general personal jurisdiction over a foreign defendant based solely on maintenance of a passive Web site. The defendant was a hotel, located in Italy, which maintained a Web site as an advertisement. The plaintiff, a New Jersey resident, sustained injuries while visiting the hotel in Italy. On returning to the United States, the plaintiff sued the defendant in New Jersey state court,

[27]

 and claimed the New Jersey court could assert personal jurisdiction over the defendant based on its Web site. The Court determined that maintaining a Web site as an advertisement is comparable to advertising in a national magazine and is insufficient to allow the forum court to establish personal jurisdiction over the defendant. Because the defendant’s sole contact with New Jersey was its Web site, and because the injury was not related to the Web site, the court declined to exercise jurisdiction over the Italian defendant.

Owners of Web sites maintained in the United States should address whether operating the Web site will subject them to the jurisdiction of courts in other countries. Foreign courts will determine whether they can exercise jurisdiction over a defendant resident in the United States based upon the foreign country’s own rules, which may differ from those used by United States courts. Further, because widespread use of the Internet is occurring later in many foreign countries than in the United States, little or no guidance may be available to predict how a particular country’s courts might address the issue.

Nevertheless, the risk of being sued overseas does exist. For example, in the 

LG Berlin[28]

case, a German court found it could exercise jurisdiction over a defendant based in Kansas City based on the fact that the Web site operated at the defendant’s domain name was accessible at the plaintiff’s location in Germany. In another case, 

Action Asia Publishing, Ltd. v. Jake Taylor and Best Internet Communications,[29]

the Supreme Court of Hong Kong attempted to exercise jurisdiction over a California Internet service provider by issuing a Writ of Summons against the defendant. That case settled before the issue of jurisdiction was determined.

Conclusion

A company putting a Web site on the Internet should remain aware that its Web site may expand the geographic scope of its business. Depending on the nature of the business and the Web site content, the company might now be directing its activities toward customers in other states and countries. This makes it subject to foreign laws and regulations governing business activities and possibly subject to jurisdiction in foreign courts. Thinking in advance about the nature of its business and the content of its Web site will help the company assess the risk of its being hailed into a foreign court, even if definitive answers are not available.

Some protective measures may be available. The company might use click-through agreements or disclaimers to clarify a geographic focus. Trademark searches will help assess the risk of a trademark infringement suit resulting from use of the Web site and help pinpoint the location of potential plaintiffs. Where a trademark infringement suit is anticipated, a preemptive lawsuit can be filed in the company’s home state or where the domain name registrar is located. A company can perform a global review of the laws governing its industry to identify particular jurisdictions where it might become subject to suit. Once it identifies specific problem states or countries, it can obtain an opinion regarding that jurisdiction’s laws and case law regarding Web site based jurisdiction. Where a potential problem exists, the company can bring its business methods into compliance with the problem jurisdiction’s laws. No company will be able to completely predict or prevent being sued in foreign courts. However, being aware of the problem is the first step in minimizing the risk it creates.

Alternative Dispute Resolution (ADR): Overview

Created by 

FindLaw’s team

 of legal writers and editors | Last updated August 03, 2018

A wide variety of processes, practices, and techniques fall within the definition of “alternative dispute resolution.” Arbitration and mediation are the best known and most frequently used types of ADR, but not the only ones. Minitrials, early neutral evaluations, and summary jury trials are less well-known forms of ADR. Many of these ADR techniques have little in common except that negotiation plays a prominent role in each. Parties to ADR procedures generally agree that a negotiated settlement is worth pursuing before investing time and money in full blown civil litigation.

Arbitration

Arbitration is the process of referring a dispute to an impartial intermediary chosen by the parties who agree in advance to abide by the arbitrator’s award that is issued after a hearing at which all parties have the opportunity to be heard. Arbitration resembles traditional civil litigation in that a neutral intermediary hears the disputants’ arguments and imposes a final and binding decision that is enforceable by the courts. One difference is that in arbitration the disputants elect to settle any future disputes by arbitration before a dispute actually arises, whereas with civil litigation the judicial system is generally chosen by a disgruntled party after a dispute has materialized. Another difference is that the disputants to an arbitration select the intermediary who will serve as arbitrator, whereas parties to civil litigation have little to no control over who will preside as the judge in judicial proceedings.

Arbitration also resembles litigation in that many parties use arbitration as a springboard to negotiation. Parties who know that their dispute will wind up in arbitration often fail to commence serious negotiations until shortly before or shortly after the arbitration proceedings have begun. Frequently, negotiations will continue simultaneously with the arbitration proceedings, meaning the parties’ representatives will discuss settlement outside the hearing room while the hearing itself is underway inside. Arbitration can even expedite negotiations, since the parties know that once the arbitrator has issued a decision, the decision is typically final and rarely appeal-able.

There are two different forms of arbitration: private and judicial arbitration. Private arbitration is the most common form of ADR. Sometimes referred to as contractual arbitration, private arbitration is the product of an agreement to arbitrate drafted by the parties who enter a relationship anticipating that disputes will arise, but who mutually desire to keep any such disputes out of the courts. Private arbitration agreements typically identify the person who will serve as arbitrator. The arbitrator need not be a judge or government official. Instead, the arbitrator can be a private person whom the parties feel will have sufficient knowledge, experience, and equanimity to resolve a dispute in a reasonable manner. In some states, legislation prescribes the qualifications one must satisfy to be eligible for appointment as an arbitrator.

A private arbitrator’s power is derived completely from the arbitration agreement, which may also limit the issues the arbitrator has authority to resolve. Private arbitration agreements are supported in many states by statutes that provide for judicial enforcement of agreements to arbitrate and arbitrator-rendered awards. However, statutes governing private arbitration often set forth criteria that must be followed before an arbitration agreement will be binding on both parties and enforced by a court. If those criteria are satisfied, a court will normally deem the arbitrator’s decision final and enforceable. The losing party may only appeal the decision upon a showing of fraud, misrepresentation, arbitrariness, or capriciousness by the arbitrator.

Private arbitration is the primary method of settling labor disputes between unions and employers. For example, unions and employers almost always include an arbitration clause in their formal negotiations, known as collective bargaining agreements. By doing so, they agree to arbitrate future employee grievances over wages, hours, working conditions, and job security. Many real estate and insurance contracts also make arbitration the exclusive method of negotiating and resolving certain disputes that can arise between the parties entering those types of relationships.

Judicial arbitration, sometimes called court-annexed arbitration, is a non-binding form of arbitration, which means that any party dissatisfied with the arbitrator’s decision may choose to go to trial rather than accept the decision. However, most jurisdictions prescribe a specific time period within which the parties to a judicial arbitration may elect to reject the arbitrator’s decision and go to trial. If this time period expires before either party has rejected the arbitrator’s decision, the decision becomes final, binding, and just as enforceable as a private arbitrator’s decision.

Judicial arbitration is usually mandated by statute, court rule, or regulation. Many of these statutes were enacted to govern disputes for amounts that exceed the jurisdiction of small claims court but fall short of the amount required for trial in civil court. For example, in New York State claims for over $3,000 and for less than $10,000 must be submitted to non-binding judicial arbitration. NY CPLR Rule section 3405. Ten federal district courts also have mandatory programs for non-binding judicial arbitration that are funded by Congress. For example, rule 30 of the Local Rules of Court for the U.S. District Court for the Western District of Missouri provides that cases designated for compulsory, non-binding arbitration are those in which the damage award could not reasonably be expected to exceed $100,000.

Because judicial arbitration is mandatory but non-binding, it often serves as a means of facilitating negotiation between the parties to a dispute. Civil court calendars are frequently backlogged with hundreds of lawsuits. States hope that by mandating nonbinding arbitration for certain disputes the parties will see the value of a negotiated settlement where both parties compromise their positions, since their positions would likely be compromised were their dispute to be resolved in civil court. Seldom do litigants receive everything they ask for in their petitions, complaints, and answers.

Private and judicial arbitration are generally less costly and more time efficient than formal civil litigation. It has been estimated that the average arbitration takes 4 to 5 months while litigation may take several years. The cost of arbitration is minimal compared to civil trials as well, since the American Arbitration Association (AAA) charges only a nominal filing fee and the arbitrator may even work without a fee to broaden his or her professional experience.

Mediation

Mediation is a rapidly growing ADR technique. It consists of assisted negotiations in which the disputants agree to enlist the help of a neutral intermediary, whose job it is to facilitate a voluntary, mutually acceptable settlement. A mediator’s primary function is to identify issues, explore possible bases for agreement, discuss the consequences of reaching impasse, and encourage each party to accommodate the interests of other parties through negotiation. However, unlike arbitrators, mediators lack the power to impose a decision on the parties if they fail to reach an agreement on their own.

Top of Form

Bottom of Form

Mediation is sometimes referred to as conciliation, or conciliated negotiation. However, the terms are not necessarily interchangeable. Conciliation focuses more on the early stages of negotiation, such as opening the channels of communication, bringing the disputants together, and identifying points of mutual agreement. Mediation focuses more on the later stages of negotiation, exploring weaknesses in each party’s position, investigating areas where the parties disagree but might be inclined to compromise, and suggesting possible mutually agreeable outcomes. Conciliation and mediation typically work well when the disputants are involved in a long-term relationship, such as married partners, wholesaler and retailer, and manufacturer and distributor, to name a few. Mediation and conciliation also work well for “polycentric” problems that are not easily solved by all-or-nothing solutions, as with certain antitrust suits involving a myriad of complex issues.

Although some jurisdictions have enacted statutes that govern mediation, most mediation proceedings are voluntary for both parties. Accordingly, a mediator’s influence is limited by the autonomy of the parties and their willingness to negotiate in good faith. Thus, a mediator can go no further than the parties themselves are willing to go. Since agreements reached by mediation bear the parties’ own imprint, however, many observers feel that they are more likely to be adhered to than decisions imposed by an arbitrator or court. Disputants who participate in mediation without representation of legal counsel are also more likely to adhere to settlements when the alternative is to pursue civil litigation, where attorneys fees consume a significant portion of any monetary award granted to the parties.

Minitrials

A minitrial is a process by which the attorneys for the parties present a brief version of the case to a panel, often comprised of the clients themselves and a neutral intermediary who chairs the process. Expert witnesses (and less frequently, lay witnesses) may be used in presenting the case. After the presentation, the clients, normally top management representatives who by now are more aware of the strengths and weaknesses of their positions, attempt to negotiate a settlement of the dispute. If a negotiated settlement is not reached, the parties may allow the intermediary to mediate the dispute or render a non-binding advisory opinion regarding the likely outcome of the case were it to be tried in civil court.

Minitrials are increasingly used by businesses to resolve large-scale disputes involving product liability questions, antitrust issues, billion dollar construction contracts, and mass tort or disaster litigation. The federal government also makes use of minitrials for disputes involving telecommunications. The Code of Federal regulations establishes procedures whereby individuals and entities under investigation by the FCC can request a minitrial prior to commencement of more formal administrative proceedings. 47 CFR section 1.730.

Minitrials are often effective because they usually result in bringing top management officials together to negotiate the legal issues underlying a dispute. Early in the negotiation process, upper management is sometimes pre-occupied by the business side of a dispute. Minitrials tend to shift management’s focus to the outstanding legal issues. Minitrials also allow businesses to share information with each other and with their attorneys, providing a forum for initial face-to-face negotiations. Management also generally prefers the time-saving, abbreviated nature of minitrials over the more time-consuming and costly civil-litigation alternative. Minitrials expedite negotiations as well, by making them more realistic. Once the parties have seen their case play out in court, even in truncated fashion, the parties are less likely to posture over less relevant or meaningless issues.

Summary Jury Trials

Summary jury trials are an ADR technique used primarily in federal courts, where they provide parties with the opportunity to “try” their cases before an advisory panel of jurors, without having to face the final and possibly adverse decision of a regular jury in civil court. The purpose of the summary jury trial is to facilitate pretrial termination of cases in which a significant impediment to negotiation is disagreement between the attorneys or parties regarding a civil jury’s likely findings on liability or damages in the case. Like minitrials, summary jury trials give the parties a chance to reach a preliminary assessment of the strengths and weaknesses of their positions and proceed with negotiations from a common starting point, namely the advisory jury’s findings. Both summary jury trials and minitrials can ordinarily be scheduled and completed before formal civil cases would normally reach a court’s docket.

Summary jury trials are presided over by a judge or magistrate in federal district court. A ten-member jury venire is presented to counsel for consideration. Counsel are provided with a short character profile of each juror and then given two challenges to arrive at a final six-member jury for the proceeding. Each attorney is given one hour to describe his or her client’s case to the jury. After counsel’s presentations, the presiding judge or magistrate delivers to the jury a brief statement of the applicable law, and the jury retires to deliberate. Juries are encouraged to return a consensus verdict, but they may return a special report that anonymously lists the view of each juror as to liability and damages. After the verdict or special report has been returned, counsel meet with the presiding judge or magistrate to discuss the verdict and to establish a timetable for settlement negotiations. Evidentiary and procedural rules are few and flexible.

Early Neutral Evaluation

Early neutral evaluation is an informal process by which a neutral intermediary is appointed to hear the facts and arguments of counsel and the parties. After the hearing, the intermediary provides an evaluation of the strengths and weaknesses of the parties’ positions and the parties’ potential exposure to liability for money damages. The parties, counsel, and intermediary then engage in discussions designed to assist the parties in identifying the agreed upon facts, isolating the issues in dispute, locating areas in which further investigation would be useful, and devising a plan to streamline the investigative process. Settlement negotiations and mediation may follow, but only if the parties desire. In some jurisdictions, early neutral evaluation is a court-ordered ADR technique. However, even in these jurisdictions the parties are given the option of hiring their own neutral intermediary or having the court appoint one.

The objective of early neutral evaluation is to obtain an early assessment of the parties’ dispute by a credible outsider who has no interest in the outcome of the dispute but who has sufficient knowledge and experience to sift through the facts and issues and find the ground shared by the parties and the ground separating them. Much like in the other forms of ADR, the success of early neutral evaluation depends largely on the disputants’ faith in the neutral intermediary. It also depends in large part on the disputants’ willingness to compromise and settle the dispute. Successful early neutral evaluations can lead directly to meaningful negotiations.

Conclusion: Negotiation, ADR, and Civil Litigation

The procedures and techniques discussed above are the most commonly employed methods of ADR. Negotiation plays an important role in each method, either primarily or secondarily. However, there are countless other ADR methods, many of which modify or combine the above methods. For example, it is not uncommon for disputants to begin negotiations with early neutral evaluation and then move to nonbinding mediation. If mediation fails, the parties may proceed with binding arbitration. The goal with each type of ADR is for the parties to find the most effective way of resolving their dispute without resorting to litigation. The process has been criticized as a waste of time by some legal observers who believe that the same time could be spent pursuing the claims in civil court, where negotiation also plays a prominent role and litigants are protected by a panoply of formal rights, procedures, and rules. But many participants in unsuccessful ADR proceedings believe it is useful to determine that their disputes are not amenable to a negotiated settlement before commencing a lawsuit.

Despite its success over the past three decades, ADR is not the appropriate choice for all disputants or all legal disputes. Many individuals and entities still resist ADR because it lacks the substantive, procedural, and evidentiary protections available in formal civil litigation. For example, parties to ADR typically waive their rights to object to evidence that might be deemed inadmissible under the rules of court. Hearsay evidence is a common example of evidence that is considered by the parties and intermediaries in ADR forums but that is generally excluded from civil trials. If a disputant believes that he or she would be sacrificing too many rights and protections by waiving the formalities of civil litigation, ADR will not be the appropriate method of dispute resolution.