1. Separation of Powers & Rules of Law Prof. Carol Swanson cswanson@hamline.edu 651-523-2138 ORIENTATION Fall 2008

2. SAMPLE EXAM…  Read the following two Contracts cases:  Dougherty v. Salt, 125 N.E. 94 (N.Y. Ct. App. 1919). Summers/Hillman casebook, pp. 47-49 Knapp/Crystal/Prince casebook, pp. 87-90  Hamer v. Sidway, 27 N.E. 256 (N.Y. Ct. App. 1891). Summers/Hillman casebook, pp. 56-58 Knapp/Crystal/Prince casebook, pp. 71-75

3. What’s the POINT?  Why do you care about “separation of powers” and “rules of law” at this early point in your legal education?  This session is all about… Understanding the importance of the relevant legal rules; Appreciating the hierarchy of applicable standards; and Evaluating the legal consequences that flow from particular scenarios:  Mastering hypotheticals in class  IRAC on law school exams  “Real Life” client dilemmas in practice

4. Dog Bite Hypothetical #1  “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?

5. The Answer? “IT DEPENDS.”

6. DEPENDS on WHAT?  What is the remedy sought? Criminal Civil Administrative  What is the controlling rule of law? 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.

7. Tasty Tidbits on DOG BITES…  74.8 million dogs in USA  Each year, you have a 1-in-50 chance of being bitten by a dog 800,000 annually require medical attention  32 fatal dog maulings in 2007  Most bites occur on owner’s property  Most victims are owner’s family & friends  www.dogbitelaw.com (Kenneth Phillips) www.dogbitelaw.com

8. Separation of Powers  Legislature U.S. Constitution, Art. 1  Executive U.S. Constitution, Art. 2  Judiciary U.S. Constitution, Art. 3

9. Formal Sources of Law?  Legislation (statutes) Different levels:  U.S. Congress  State legislatures  Municipal ordinances If constitutional, then controlling! Prospective in application (usually)  Court Decisions (case precedent, common law) Stare decisis “Distinguishing” precedent

10. What’s So Great About Stare Decisis?  Certain, Predictable Standards Private & business activities Legal counsel  Effective Judicial Administration Curb arbitrary decisions Efficiency  Justice (fairness for all?)

11. PROSPECTIVE vs. RETROACTIVE  What does prospective application mean with respect to legal claims?  What does retroactive application mean?  So it’s all about TIMING: When does a cause of action (or claim) “arise”? What general rule with respect to legislation? What general rule with respect to case authority?

12. Tug of War  Common law jurisdiction Courts are often the first lawmakers Changes usually apply retroactively  Legislature enacts statute If conflicts, overturns prior common law Usually is effective prospectively  Court then construes/interprets the statute If legislature dislikes the judicial construction, can amend legislation for clarification

13. Separation of Powers in Wonderful World of DOG ATTACKS…  Cause of Action Against Owner: Common Law: “One Bite Rule” (about 18 states) Statutes: (about 32 states)  Strict Liability  Hybrid of “One Bite Rule” & Strict Liability Other Bases for Liability  Intentional  Other public health & safety laws  Premises  Defenses:  Provocation, assumption of risk, trespass

14. Dog Bite Example, Revisited…  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, 2008, state passes a law imposing strict liability on dog owners whenever a dog bite occurs.  Lucky bites Heather on August 9, 2008.  Heather sues Lucky’s owner on February 1, 2009. What rule of law?

15. Minnesota’s Dog Bite Statute  Minn. Statutes Annotated, Section 347.22: Damages, owner liable: 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.

16. The BOTTOM LINE.  In class, on exams, in practice... KNOW & STATE the applicable rule(s) of law  Keep in mind... Separation of powers, checks & balances  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