Transcript Professionalism & Academic Introduction

Separation of Powers &
The Rule of Law
Prof. Carol Swanson
[email protected]
651-523-2138
ORIENTATION Fall 2009
What’s the POINT?


Why do you care about “separation of powers” and
“the rule of law” at this early point in your legal
education?
This session is all about…
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

Understanding the importance of the relevant legal rules;
Appreciating the hierarchy of applicable standards; and
Evaluating the legal consequences that flow from
particular scenarios:
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

Mastering hypotheticals in class
IRAC (Issue/Rule/Analysis/Conclusion) on law school exams
“Real Life” client dilemmas in practice
Have you ever been bitten by a dog?
ice
.
tw
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or
et
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ne
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No
—
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Ye
s,
4.
Ye
s,
3.
on
ce
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2.
Yes, once.
Yes, twice.
Yes, more than
twice.
No—never!
Ye
s,
1.
If you have been bitten, was it by…
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Your own dog.
A dog owned by a
family member.
A dog owned by a
friend.
A stranger’s dog.
Some combination
of the above!
Yo
ur
o
1.
Dog Bite Hypothetical #1
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“Lucky” is tied to a post outside the school.
Heather sees Lucky and wants to pet him.
When she leans over to pet Lucky, her
Contracts textbook falls from her bag and
strikes the dog, and the dog attacks Heather.
Heather is seriously hurt.
Liability for dog’s owner?
Is Lucky's owner liable?
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No
.
2.
Yes.
No.
It depends.
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The Answer?
“IT DEPENDS.”
DEPENDS on WHAT?
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What is the remedy sought?
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Criminal
Civil
Administrative
What is the controlling rule of law?
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Where are the possible sources for the controlling rule of
law?
What is the hierarchy among those sources?
Once you know the controlling rule of law, the relevant
facts become much more clear.
Tasty Tidbits on DOG BITES…
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About 75 million dogs in USA
 1-in-50 chance of being bitten in any given year
 800,000 annually require medical attention
 Most bites occur on owner’s property
 Most victims are owner’s family & friends
Fatal dog maulings
 32 in 2007; 23 in 2008; 19+ this year (early August)
Dog Bite/Law Websites:
 www.dogbitelaw.com (Kenneth Phillips)
 www.dogsbite.org
2009 Dog Maulings (18+ fatalities)
DANGEROUS BREEDS?
Do you think that states should enact
breed-specific laws?
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No
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Yes.
No.
Not sure.
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Top Ten “Dangerous” Breeds
Separation of Powers
 Legislative

U.S. Constitution, Art. 1
 Executive

U.S. Constitution, Art. 2
 Judicial

U.S. Constitution, Art. 3
The following statement regarding the
separation of powers is TRUE:
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If a federal statute directly
conflicts with Supreme
Court authority, the statute
generally prevails.
If a state statute directly
conflicts with the common
law, the common law
prevails.
Both of the above.
None of the above.
If
a
1.
What does “Rule of Law” mean?
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IRAC
“R” stands for RULE
“R” = Applicable Legal Standard(s)
governing the issue at hand
Does it matter whether a particular result is
“right,” “fair,” “customarily true,” and/or
“morally appropriate”?
The Answer?
“IT DEPENDS.”
Formal Sources of Law?
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Legislation (statutes)
 Different levels:
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If constitutional, then controlling!
 Prospective in application (usually)
Court Decisions (case precedent, common law)
 Stare decisis
 Retroactive in application (usually)
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U.S. Congress
State legislatures
Municipal ordinances
What’s true about STARE DECISIS?
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Applies to obiter dicta,
not to holdings.
Is a distinctive feature
of common law
systems (as opposed to
civil code systems).
Does not apply when a
relevant statute
governs.
Ap
pl
1.
What’s So Great About Stare Decisis?

Certain, Predictable Standards
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Effective Judicial Administration
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Private & business activities
Legal counsel
Curb arbitrary decisions
Efficiency
Justice (fairness for all?)
PROSPECTIVE vs. RETROACTIVE
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What does prospective application mean
with respect to legal claims?
What does retroactive application mean?
So it’s all about TIMING:
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When does a cause of action (or claim)
“arise”?
What general rule with respect to legislation?
What general rule with respect to case
authority?
Prospective vs. Retroactive—
What’s TRUE?
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ju
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A judge can alter the
applicable civil
standard for a pending
case.
New legislation
presumptively applies
to matters currently in
litigation.
A
1.
Tug of War

Common law jurisdiction
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Legislature enacts statute
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If conflicts, overturns prior common law
Usually is effective prospectively
Court then construes/interprets the statute
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Courts are often the first lawmakers
Changes usually apply retroactively
If legislature dislikes the judicial construction, can amend
legislation for clarification
So what are the rules of law in the world of dog bite
liability?
Separation of Powers in Wonderful
World of DOG ATTACKS…
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Cause of Action Against Owner:
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Common Law: “One Bite Rule” (about 18 states)
Statutes: (about 32 states, but growing)
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Other Bases for Liability
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Strict Liability
Hybrid of “One Bite Rule” & Strict Liability
Intentional
Other public health & safety laws
Premises
Defenses:
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Provocation, assumption of risk, trespass
Minnesota’s Dog Bite Statute
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Minn. Statutes Annotated, Section 347.22: Damages,
owner liable:
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If a dog, without provocation, attacks or injures any
person who is acting peaceably in any place where the
person may lawfully be, the owner of the dog is liable in
damages to the person so attacked or injured to the full
amount of the injury sustained. The term "owner"
includes any person harboring or keeping a dog but the
owner shall be primarily liable. The term "dog" includes
both male and female of the canine species.
Is Lucky’s owner liable under the
Minnesota statute?
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No
.
2.
Yes.
No.
It depends.
Ye
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1.
The Answer?
“IT DEPENDS.”
Dog Bite Example,
Revisited…
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Common law rule: no civil liability for dog bites
unless the owner had prior notice of the dog’s
propensity for biting.
On August 1, 2009, state passes a law imposing
strict liability on dog owners whenever a dog bite
occurs.
Lucky bites Heather on August 9, 2009.
Heather sues Lucky’s owner on February 1, 2010.
What rule of law?
What rule of law applies?
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The common law
standard (1-bite
rule) applies.
The new state
statute (strict
liability) applies.
It depends.
Th
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1.
The BOTTOM LINE.
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In class, on exams, in practice...
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KNOW & STATE the applicable rule(s) of law
Keep in mind...
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Separation of powers, checks & balances
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Legislation RULES! (including judicial interpretation)
In the absence of legislation, COMMON LAW
Prospective & retroactive application of changes in the
rule(s) of law
Relative hierarchy of authorities within each branch