The postings should reflect individual comprehension and inquires of the material and include supporting information that is properly referenced. The initial posts should be the minimum of a short paragraph and a maximum of two paragraphs (approximately 250 words). Also 2 references
Chapter 1
Chapter 1.10 The Legal System
The United States has become an increasingly litigious society; annually, millions of lawsuits are filed by citizens seeking legal remedy to problems they have encountered in the course of their personal or professional lives. Therefore, recreation and sport managers must understand the basic components of the complex United States legal system, including origins of the law, the legal system, and the legal process.
FUNDAMENTAL CONCEPTS
Origins of the Law
There are multiple sources of law including Constitutional law and laws enacted, enforced, and interpreted by the three branches of government.
A constitution is a document that sets forth the basic principles of government, including limits on government power. The federal government, as well as all 50 states, has a constitution; each constitution provides citizens many protections.
Additionally, the federal and state governments each have three branches that exist as a source of law: the legislative branch, which is responsible for enacting new laws and amending existing laws through federal or state legislatures; the executive branch, which enforces existing laws through elected officials or administrative agencies; and, the judicial branch which interprets constitutions or other existing laws through the federal and state court systems.
Legislative Branch
A Congress (or legislature), either state or federal, is the legislative branch of the government, comprised of elected officials in the Senate and in the House of Representatives.
Executive Branch
Often times, statutes require further explanation to be applied to real-life scenarios. This guidance typically comes in the form of regulations created by the executive branch, or an administrative agency created by the executive branch. Regulations are rules and administrative codes issued by governmental agencies at all levels, municipal, county, state and federal. Although they are not laws, regulations have the force of law, since they are adopted under authority granted by statutes, and often include penalties for violations.
Judicial Branch
Whether the source of law is a constitution, a statute, or a regulation, the judicial branch is charged with interpreting and applying the law by adjudicating legal claims. When a court makes a decision in a legal case, and authors a written opinion, the decision is referred to as case law; the collective body of case law is called common law.
The Legal System
Once laws are created, they must be interpreted and applied to particular circumstances; as discussed above, this interpretation/application occurs in the judiciary, or court systems.
Federal Court System
The federal court system uses a hierarchal approach, meaning that cases originate in lower courts, and when appropriate, may be appealed to higher level courts. The lowest tier in the federal hierarchy is the District Court level; District Courts are the courts of origin in the federal court system.
If a party to the lawsuit does not feel the law was properly interpreted or applied in the District Court, he or she may appeal the case on the basis of legal error; in other words, ask a higher level court to review the case for mistakes of law. The middle tier in the federal hierarchy is known as the Circuit Courts.
Lastly, a party may choose to again appeal his or her case to the highest tier in the federal court system, the United States Supreme Court (USSC). To appeal a case to this highest level, the party must request certiorari by filing a petition asking the USSC to hear the case; the USSC will either grant or deny this request.
State Court System
Each state has its own court system. Similar to the federal court system, most states also use the hierarchal approach, separating the courts into three levels. Most states have trial courts of either limited or general jurisdiction, appellate courts, and a supreme court.
Administrative Court System
The vast majority of recreation and sport lawsuits are filed in state or federal courts. Administrative courts sit as fact-finding bodies that apply these regulations.
Jurisdiction
Given that more than one court system exists, it is necessary to understand when it is appropriate to use each one. Selecting the proper court system requires a determination of which court has jurisdiction; a courts ability to hear a case and provide remedy.
A court must have both personal jurisdiction, which is power over the parties in the case, and subject matter jurisdiction, the power to hear the type of case.
The Legal Process
The following discussion is not intended to cover completely all procedural elements of a legal case.
Trial Phase
Standing. The legal right to file a lawsuit is called standing. To establish standing, a plaintiff must establish that he or she sustained a harm, that the court has the power to provide a remedy, and that the plaintiff has an interest in the outcome of a case.
Parties to the Lawsuit. The plaintiff (s) is the party filing the lawsuit; this is the individual or group that has allegedly suffered harm and seeks legal remedy from the court. The defendant(s) is the party against whom the claim is filed. Also, some cases are filed as class action lawsuits, meaning that a large group of people are filing a lawsuit collectively against a defendant.
Jurisdiction.
Filing the Complaint. After the plaintiff has identified the appropriate jurisdiction to file the lawsuit, he or she will formally commence the legal process by filing a complaint. A complaint is a formal pleading to the court that must state both the factual and legal basis for the claim. When a complaint is filed, the court will issue a summons, which gives the name and file number of the lawsuit and instructs the defendant to file an answer or other response.
Filing the Answer. After a complaint is filed, and summons issued, a defendant has a specific period of time, typically 30 or 60 days, in which to file an answer with the court. An answer is a pleading to the court, filed by a defendant, which responds to each allegation in the complaint.
Discovery and Motions. After the defendant files an answer, both parties to the lawsuit enter the discovery and motions phase. Discovery is the period of time during which both parties gather facts and information to be used as evidence in a trial. Motions are formal requests made to the court seeking a specific action or decision. Some common motions include:
(1) a motion for judgment on the pleadings, which asserts that no cause of action exists even if everything in the complaint were true;
(2) a motion to dismiss, oft en based on expiration of the statute of limitations or filing in the wrong jurisdiction; and
(3) a motion for summary judgment, which is filed when one party believes that no questions of fact are present in the case, and the legal issue can be decided as a matter of law.
Settlement, Alternative Dispute Resolution, or Trial. After the motion and discovery phase is complete, the parties in the case will proceed towards a final resolution, which can be reached in many ways. First, the parties may settle the case; this occurs as a result of negotiations between the parties to reach a result that both sides agree with. A settlement is carried out using formal contractual agreements that are filed with the court; often times, settlement agreements are not made public and only the parties to the case know the final result.
Another option is to seek resolution using a form of alternative dispute resolution (ADR) such as arbitration or mediation.
Damages. If the defendant is found liable, damages will likely be awarded to the plaintiff (although this is not always the case). Damages are the monetary compensation awarded as a remedy for defendant liability. Damages can be compensatory (intended to compensate for harm) or punitive (intended to punish the wrongdoer and deter similar future acts).
Appellate Phase
After a trial court adjudicates a claim, either party has the opportunity to file a notice of appeal, requesting that the appropriate appellate court review the case.
On appeal, the reviewing court will use the facts of the case established at the trial court level; the appellate court is not a fact-finding court. Using those facts, the appellate court will determine whether the decision reached by the trial court was correct (affirmed), correct in part (affirmed in part), incorrect (reversed), or incorrect in part (reversed in part).
Oft en times, when the appellate court affirms or reverses a decision in part, it will also remand the case back to the trial court for further proceedings consistent with the appellate decision.
CHAPTER 1.20 Legal Research
This chapter provides information on the legal system and the legal resources tools available to sport and recreation managers, including primary resources and secondary resources.
Fundamental Concepts
Primary Legal sources
Constitutions/Statutes/Rules/ Regulations
– The United States Constitution is the supreme law of the law. It governs conduct of the federal and state governments, as well as conduct of private citizens.
– Individual State Constitutions
– US Congress and fifty state legislatures enact laws known as statutes
– United States Code is the publication of federal statutes.
– Individual states publish their statue as Civil Codes, Public Laws, Session Laws or Revised Statues
– Congress and state legislatures establish regulatory agencies (FAA, EPA) to create specific purpose rules and regulations in order to fulfill a specific purpose. These regulations are published in the Code of Federal Regulations.
Court Decisions
Federal Court
– In the federal court system, the vast majority of federal cases originate in the U.S. District Court. The U.S. District Court is the federal trial court and the first level within the federal court system.
– Any appeal from a U.S. District Court decision would be made to the appropriate U.S. Court of Appeals. The U.S. Courts of Appeals represent the second level or the intermediate appellate level in the federal court system.
– After the U.S. Court of Appeals renders its decision, a party can still request another appellate review by the U.S. Supreme Court. However, the U.S. Supreme Court is not required to hear these appeals. The U.S. Supreme Court is the highest court in the land, and its decisions are considered the supreme law of the land, which must be followed by all lower federal and state courts.
State Court
– The state court systems are organized in a similar fashion to the federal courts. Most cases will originate in the trial or district courts and then follow a similar path as federal cases with appeals going to an intermediate appellate court or directly to the state supreme court.
– Typically, only decisions made by a states Supreme Court are selected for publication in the state reporters.
Secondary sources
Secondary resources include legal Dictionaries, law articles, law journals and other written sources that summarize, explain, interpret, or analyze certain issues or topics of the law.
Additional Research Tools
In addition to secondary legal resources, research tools like: digests; electronic databases; and computerized legal research can also be used to locate primary legal resources.
Electronic and web-based research (does not replace law libraries yet)
– Electronic databases known as WESTLAW and LEXIS where one can search topically, or for a specific case or statute (law students)
– LEXIS-NEXUS Academic Universe is available through most colleges Provides research on general news topics; company, industry and market news; legal news; company financial information; law reviews; federal case law; U. S. Code; and state legal research
Research Techniques
The following six steps represent a good approach to developing a legal research plan:
Step One: Identify the Problem or Issue
Step Two: Consult an Encyclopedia or Treatise
Step Three: Read and Summarize Cases
Step Four: Locate Additional Cases and Shepardize
Step Five: Determine Any Constitutional or Statutory Connections
Step Six: Organize Your Information
It is recommended that you then organize the information as follows:
Statement of Facts: Identify the facts or circumstances that created the need to study the problem.
Statement of the Issue/Problem: State the actual issue, question, or problem that will be answered.
Identification of the Relevant Law: Identify the cases, statutes, or other information needed to understand this issue. This should include a brief summary of relevant cases, relevant statutory language, and other information needed to understand the law.
Application of the Law: This section should include a detailed analysis of the law identified in the Identification of the Relevant Law section and how it applies to the Statement of Facts section to answer the question identified in the Statement of the Issue/Problem section.
Conclusion: Discuss the anticipated effect of your analysis in the Application of the Law section.
Illustrative Case
B.A. Dusckiewicz v. Jack Carter D/B/A Jack Carter Enterprises
115 Vt. 122; 52 A.2d 788 (1947)
Facts: The plaintiff, Dusckiewicz, attended a wrestling match put on by the defendant, Carter. Dusckiewicz purchased a ringside ticket for the match. During the match, one of the wrestlers, who were both hired by Carter, was thrown out of the ring into the plaintiff, Dusckiewicz. As a result, Dusckiewicz suffered a sprained hand and wrist.
Issues: – Did the plaintiff, Dusckiewicz, assume the risk associated with attending a wrestling match? And if so, was someone being thrown out of the ring a normal or obvious risk??Were the two wrestlers independent contractors or employees of the Defendant Carter?
Holding: The court ruled for the plaintiff and granted the plaintiff a new trial.
Reasoning: While an invitee at a place of amusement ordinarily assumes the risk of an obvious danger or one that is a matter of common knowledge, it cannot be held as a matter of law that the plaintiff assumed the risk of someone being thrown out of the ring.?As for whether the two wrestlers were independent contractors or employees, the court ruled it did not matter because the Defendant, Carter, had a duty to protect his invitees.
Recent Comments