1. Separation of Powers & The Rule of Law Prof. Carol Swanson cswanson@hamline.edu 651-523-2138 ORIENTATION Fall 2009

2. 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… 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 (Issue/Rule/Analysis/Conclusion) on law school exams  “Real Life” client dilemmas in practice

3. Have you ever been bitten by a dog? 1. Yes, once. 2. Yes, twice. 3. Yes, more than twice. 4. No—never!

4. If you have been bitten, was it by… 1. Your own dog. 2. A dog owned by a family member. 3. A dog owned by a friend. 4. A stranger’s dog. 5. Some combination of the above!

5. 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?

6. Is Lucky's owner liable? 1. Yes. 2. No. 3. It depends.

7. The Answer? “IT DEPENDS.”

8. 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.

9. Tasty Tidbits on DOG BITES…  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.dogbitelaw.com www.dogsbite.org

10. 2009 Dog Maulings (18+ fatalities)

11. DANGEROUS BREEDS?

12. Do you think that states should enact breed-specific laws? 1. Yes. 2. No. 3. Not sure.

13. Top Ten “Dangerous” Breeds

14. Separation of Powers  Legislative U.S. Constitution, Art. 1  Executive U.S. Constitution, Art. 2  Judicial U.S. Constitution, Art. 3

15. The following statement regarding the separation of powers is TRUE: 1. If a federal statute directly conflicts with Supreme Court authority, the statute generally prevails. 2. If a state statute directly conflicts with the common law, the common law prevails. 3. Both of the above. 4. None of the above.

16. What does “Rule of Law” mean?  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”?

17. The Answer? “IT DEPENDS.”

18. 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 Retroactive in application (usually)

19. What’s true about STARE DECISIS? 1. Applies to obiter dicta, not to holdings. 2. Is a distinctive feature of common law systems (as opposed to civil code systems). 3. Does not apply when a relevant statute governs.

20. 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?)

21. 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?

22. Prospective vs. Retroactive— What’s TRUE? 1. A judge can alter the applicable civil standard for a pending case. 2. New legislation presumptively applies to matters currently in litigation.

23. 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  So what are the rules of law in the world of dog bite liability?

24. 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, but growing)  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

25. 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.

26. Is Lucky’s owner liable under the Minnesota statute? 1. Yes. 2. No. 3. It depends.

27. The Answer? “IT DEPENDS.”

28. 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, 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?

29. What rule of law applies? 1. The common law standard (1-bite rule) applies. 2. The new state statute (strict liability) applies. 3. It depends.

30. 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