Pleasantly surprised that this chapter is under 30 pages.

This chapter centers around information exchange, since failure to warn etc. can fall under negligence.

The language you use really matters, if you say the trail will be perfect you can be sued for it not being perfect. So get your marketing department hip with the times.

An exculpatory agreement is a contract where a person or entity that is legally “at fault” tries to excuse itself from fault (also comes in clause format). Can be in either a waiver or a release.

Tort law and contract law are at odds in this case because contracts can include waiving of rights including the right to sue, while tortious acts still create accountability that can be rectified with litigation. These two pillars are at odds and so resolving disputes can get messy.

The main way that waivers turn out to be valuable is when they have the right context and they contain the right content.

Context considerations:

• Minority
  • Contracts entered into by minors are voidable
  • Parents cannot give up their children’s right to sue
    • Woodman and Hamill cases reflect opposite outcomes when injury occurs to a minor with a charge of negligence against the operator
• Public Policy
  • Some jurisdictions will not uphold waivers
  • Consideration whether an essential service is being provided
    • e.g. waivers not valid in medical setting
    • Tunkl vs UC Regents case sets precedent for college activity being an essential service
    • A university cannot release itself from all liability with a required waiver
  • The principle of unfair dominance is that a waiver that is one-sided will not be upheld
    • e.g. if the activity is required and no alternative is provided
  • Waivers cannot be used to violate a statuatory duty of care
    • e.g. not caring for and maintaining the premises

Content considerations:

• Terms must be conspicuous
• Language must be clear, unambiguous, and explicit
• Language cannot exonerate beyond negligence
  • Gross negligence, reckless behavior, and intentional torts cannot be waived away
• Decision whether to use exculpatory clause is important
  • Must be consistent with mission of org

Sample Agreement to Participate:

On the one hand, a vital chapter for TSL and for karate stuff. On the other hand, probably going to get covered again in the Sport Facility Mgmt course, so ¯\_(ツ)_/¯

This chapter has two main thrusts: premises liability, the extension of liability materials from the previous chapter; and legality surrounding construction and operation of sport facilities. It’s a beefy chapter (almost 50 pages!!) but that seems reasonable when considering there’s an entire course on this chapter separately.

People at events must be classified as one of the following:

• Invitee: a person granted permission to be on the premises by the owner and who brings economic benefit to the owner
  • Business invitee is there for the owner’s economic gain
  • Public invitee is anyone attending something on public property
  • Invitees are owed a duty of reasonable care (same as in chapter 15)
• Licensee: a person granted permission to be present but brings no economic benefit
  • Licensees are owed only safety from intentional harm
  • Liability can still exist if the owner knows about something dangerous and the licensee does not
• Trespasser: a person not granted permission to be present but is present anyway
  • Owner has only the duty of not wantonly inflicting injury on trespassers (except in Texas, HEYOOOOO)
  • Child trespassers are still owed some care due to the attractice nuisance doctine where private property with something children will want to get involved with (e.g. swimming pool) grants the duty of ordinary care by the owner

Defenses against premises liability:

• Open and obvious danger
  • If the danger is open and obvious it can protect a defendant from liability claims
  • Exception: deliberate encounter exception where the operator must be able to account for the typical behavior of the participants
  • Exception: distraction doctrine where participants may be distracted (e.g. by mascots) and thus not able to react to open and obvious danger
• Recreational use statutes
  • Immunity on this basis covered in chapter 15

Duties owed to invitees:

• Duty to design the facility safely
• Duty to warn
• Duty to inspect
  • Actual notice: dangers discovered during inspection
  • Constructive notice: dangers that would have been discovered by competent inspection but weren’t because inspection was not done or not done properly
• Duty to repair dangers
• Duty to provide emergency medical assistance
  • There’s some really sad stories in here about AEDs

Spectator injuries

• In tort law, it is rare to be liable for third party harm, but venue owners/operators do have that obligation
• Safe Place statutes can elevate the obligations on venue owners
• Alcohol increases the foreseeability of injuries and mayhem
  • The dram shop acts increase penalties against commercial enterprises when intoxicated individuals or minors are served alcohol and then go on to injure someone else
• Injuries from sports projectiles are covered under limited liability rules (so long as the owner puts up a screen and provides warnings they have sufficiently protected the spectators)

There’s a whole section on the legalities of publicly financed stadiums, teams building new venues and changing cities, and acquiring land through eminent domain.

This particular section is grisly and I’m pretty sure I know the basics so I don’t feel like taking notes on it.

When an event happens in a venue, the owner, operator, city, and league are usually all separate entities and thus must enter into a leasing agreement with each other. Leasing agreements have the following components:

• Right to use and occupy
  • Defines the terms and the times involved
• Rental fees
  • “Always take a percentage”
• Fee for additional services
• Revenue sharing
• Kitchen sink provisions:
  • Nonassignment clause: preventing lessee from assigning its rights to another org
  • Choice of law: identifying what state’s laws apply
  • Hold harmless: the lessor will be held harmless by the lessee in the event of any negligence or liability suits
  • Indemnification clause: the lessee will indemnify the lessor (compensate any losses as a result of injury to guests)
  • Insurance clause
  • Force majeure clause: acts outside the control of anyone can void the contract
  • Damage clause: holds the lessee responsible for damage to the venue

Tickets are “revocable licenses” and so long as the terms are spelled out, revocation can happen at any time. Personal seat licenses (PSLs) can get more complicated.

When two teams play and one team owns the venue (e.g. university court/stadium) the teams enter into a game contract. Such a contract might include:

• Location, date and time
• Financial arrangements
• Eligibility and game rules
• Termination provision
  • In the event of a breach of contract, this is how you recover that loss
• Force majeure clause
• Broadcast rights provision
• Insurance and indemnification clauses
• Complimentary tickets
• Promotional rights

There’s a big block on ADA compliance w/r/t wheelchair accessibility etc. If I ever need it I know where to look again.

There’s a little bit on surveillance of spectators including searching them. Sigh. MUH RIGHTS folks amirite.

That’s all for this! Last week of class let’s goooo!

I skipped chapter 14 because it was awful.

Part IV: Operations Management seems really important for both quidditch and karate! I sort of wish it was block 3, as the block 3 we dealt with was rough and I mailed it in. Though I guess I had a break on that block and now I can put the pedal to the metal.

This chapter is 40 pages but it looks way more interesting than some of the previous stuff.

The central idea that liability revolves around is establishing negligence (negligence is not eligible for punitive damages since punitive damages revolve around intention and negligence doesn’t count for that).

The four elements of negligence: duty, breach of duty, causation, and damages.

• DUTY: The defendant has a legal obligation to protect the plaintiff from unreasonable risk
  • In loco parentis: in place of the parent, establishes duty of teachers and coaches of minors
  • A special relationship can also occur in collegiate circumstances (college JV cheerleaders with no supervision)
• BREACH OF DUTY: The defendant has failed to meet the standard of care required.
  • Objective standard: the reasonably prudent person is the hypothetical individual who behaves rationally and if that person would suffer the injury that the plaintiff suffers, breach of duty can be established.
  • If the defendant has experience or education above the typical person they are accountable to that level of expectation
  • If the duty that was breached was a statuatory requirement, the breach of standard of care that results is called negligence per se. This automatically checks boxes 1 and 2 and the plaintiff just has to establish causation and damages.
• CAUSATION: A causal connection between the breach of duty and the resulting injury
  • When an act or failure to act directly causes the injury, it is proximate causation
  • The courts often have to address foreseeability in this context
  • I was expecting some other kind of causation in contrast to proximate causation but apparently not!!
• DAMAGES: When some actual loss or damage has been sustained as a result of the breach of duty. Threat of future harm is not sufficient.

If the four elements are established, negligence is established, but the defendant has recourses to defend against the negligence charge.

DEFENSES AGAINST NEGLIGENCE

• Statute of limitation
  • Often within 2 years
• Act of God
  • There has to be an actual natural disaster
  • The natural disaster has to be unforeseeable (not heeding warnings is once again negligence)
• Contributory and comparative negligence
  • Contributory negligence is when the plaintiff did not act as a reasonably prudent person and thus invited catastrophe, invalidating their entire claim
  • Comparative negligence is a modulation of the damages if the plaintiff and defendant are both partially at fault (percentages are established)
  • Pure comparative negligence is when the damages are modified directly by the percentages
  • Modified comparative negligence is when the damages can be completely invalidated if the plaintiff bears more than a threshold (e.g. 50%) of the fault
• Assumption of risk
  • Primary assumption of risk: the plaintiff understands and voluntarily agrees to accept the inherent risk of an activity.
    • In karate or quidditch, the activity bears inherent risk and playing voluntarily cannot make the supervisors automatically negligent if injury happens
    • Negligent supervision is not supposed to be an inherent risk, except when it is??
  • Secondary assumption of risk: the plaintiff deliberately chooses to encounter a known risk and in doing so acts unreasonably
• Immunity
  • Governmental immunity: when acting to effect law, organizations are immune to charges of negligence as per the FTCA
  • Charitable immunity: charities used to have more immunity than they do now but some may still exist
  • Good Samaritan statutes: individuals trying to help someone in distress may not be sued for negligence, depending on the state they’re in
  • Recreational use statutes: private landowners opening their land for free public use are immune to negligence charges
  • Volunteer immunity statutes: volunteers in many sports settings are protected from directly being sued
  • Sport safety acts/shared responsibility statute: similar to primary assumption of risk for a group sport activity

COMMON LIABILITY ISSUES:

• Lack of supervision
  • Quality of supervision
  • Quantity of supervision
• Improper instruction or training
  • Selection and supervision of properly qualified instructors
  • Adequacy of instruction
  • Proper progression of skill
  • Dissemination of safety rules and warnings
  • Mismatch of opponents
• Unsafe use of equipment
• Improper medical care
  • Preventative health concerns
  • Emergency medical care
    • Availability of qualified personnel
    • Clear protocol for outside emergency personnel
  • Medical malpractice
  • Fraudulent concealment
• Negligence in transportation
  • The selection of competent drivers
  • Selection of a safe mode of travel
  • Proper maintenance of vehicles
  • Proper training of drivers

Manufacturers can also be liable if their equipment is defective: Products Liability

• Negligence
  • Negligent design
  • Negligent failure to warn
  • Defenses:
    • Not the proximate cause of injury
    • Contributorily negligent
    • Assumed risk
    • Adequate warning was provided
• Strict Liability
  • The essential idea is whether something can be made sufficiently safe while still serving its purpose (social utility)
• Breach of Warranty
  • Express warranty
  • Implied warranty

WHOOF this was a big chapter! And an important one obv.

Blackboard is broken! Luckily I remember the relevant chapters were 13 and 14.

Boooo it’s another 30-pager.

Booooo the NCAA. The high schools are regulated by the NFHS.

Typical issues for high school athletics:

• Eligibility
• Home-schooled students
• Racial taunting
• Athletics associations are state actors (entwinement, as the SCOTUS ruling finds)
  • The NCAA is somehow not a state actor
  • But the NCAA can still wind up participating in state actions
  • Only state actors must grant due process (??)

I really hate the NCAA

One good thing it could do is enforce Title IX through certification, but surprise surprise, this doesn’t seem to be highly effective.

I feel really gross after readong this chapter. Probably wouldn’t be this bad if I hadn’t heard all the thing I’ve heard about the NCAA. But still sucks.

I’m skipping chapter 7 because I’m already familiar with it. Chapter 8 seems like it is probably relevant to the case study (the part relating to Title IX)

The US Dept of Labor oversees these laws and regulations. It administers the regulations set forth by the Fair Labor Standards Act, passed in 1938 (!!).

• Enterprise coverage
  • Employees who work at a company with at least $500,000 in business a year and/or have at least two employees
• Individual coverage
  • Not covered by enterprise coverage but employee regularly engages in interstate commerce or the production of goods for interstate commerce

(This really seems like just about everyone except self-employed local family businesses)

Minimum wage, overtime, etc. rules are created by the FLSA

The three-part test to determine if a salary position should be exempt:

• Salary basis test: the employee is paid a fixed salary
• Salary test: the salary must be above a minimum level
• Duties test: the salaried employee must be involved in the executive, administrative, or professional functions of the business

Assistant coaches and trainers are probably not exempt because they are not “learned professionals” nor are they “administrative” employees.

Another exemption is available if the organization is recreational and makes most of its money in 6 months or less of the year, or does not operate more than 7 months. Can’t get around it by making multiple businesses that only operate part of the year.

Internships have their own rules. Lots of them.

Volunteers are individuals who are not paid and do not expect to be paid, for a public service, religious, or humanitarian objective. Volunteers cannot volunteer for private for-profit orgs except through their charitable endeavors.

OSHA: Safety!!!

Things OSHA regulates, relevant to sports:

• General duties
• Specific hazard standards
• Construction records and safety
• Prevention of transmissible diseases
• PPE for exposure of various kinds
• Retaliation for making reports

Worker’s compensation requires three things:

• A compensable injury must have occurred
• The injury must be accidental
• The injury must arise out of employment
  • This is the most complex one, since the employee doesn’t have to be on the premesis for this to be valid

Professional athletes are entitled to worker’s comp for injuries (was not expecting that but still happy for it). Unfortunately, student-athletes are not employees (boooooo).

That’s it! Looks like the Title IX retaliation stuff was in chapter 7 after all. It’s not too complicated so I’ll use it directly to do the thing (on pages 149-150).

Another 30-page chapter! Yee-haw!

This chapter revolves around laws regarding discrimination in hiring and firing of employees. There are a lot of protections in regular job postings to ensure the position is fairly and appropriately advertised and interviewed but when it comes to top positions a lot of the criteria are subjective and it is easy for bias to seep in.

The Rooney Rule is namedropped here, some states are adopting versions of it.

The Civil Rights Act includes Title VII, which handles employment discrimination:

• Scope
  • Employers with:
    • At least 15 employees
    • Has interstate commerce
    • Employees work at least 20 calendar weeks of the year
  • Not applicable to independent contractors
  • Exempt:
    • Tribes
    • Religious orgs
    • Bona fide orgs (country clubs/other memberships)
• Protected classes:
  • Race/ethnicity
  • Sex
    • Sexual orientation and gender are not protected but there is movement towards adding it
  • Religion
  • National origin
    • Not citizenship
  • Color
• Administration
  • The EEOC (Equal Employment Opportunity Commission) issues regulations and the courts uphold these in legal cases
  • Also releases guidelines (not legally binding)
• Remedies
  • Back pay
  • Front pay (lost future earnings)
  • Reinstatement (in case of unlawful discriminatory termination)
  • Retroactive seniority
  • Injunctive relief (block employer from illegal actions)
  • Attorney fees
  • Compensatory and punitive damages

When determining whether discrimination has occurred, the court uses two theories: disparate treatment relating to intentional discrimination, and disparate impact relating to unintentional enforcement of rules or decisions that are discriminatory in results.

• Disparate treatment
  • Direct evidence of intent
    • Must be directly related to the hiring/etc
  • Inference from circumstantial evidence comparing treatments of different employees
    • Uses the four-pronged test from the McDonnell Douglas test involved a shifting of burden between plaintiff and defendant
      • First, plaintiff must establish a prima facie case that discrimination has occurred
        • Must establish with a preponderance of evidence
      • Then, defendant must answer that it happened for some legitimate nondiscriminatory reason (SLNDR)
      • Then it falls back on the plaintiff to show that the SLNDR is a pretext
• Disparate Impact
  • Similar mechanics but must show the neutral business practice has an outsize impact on protected classes
  • Difficult to secure a victory by this route
  • Additional defense: bona fide occupational qualification
    • Theory being the protected class will not be able to do the job as well
    • Very difficult to secure such a defense
      • A BFOQ is most likely to work in a religious context

Title IX: Educational institutions that receive federal funds must make activities available to all on the basis of sex

• Three levels to determining if the Equal Protection Clause (from the 14th amendment) is being purposefully violated by the federal government
  • Strict Scrutiny: reserved for suspect classifications, and requires the court to scrutinize the law in question. Essentially if the law specifically names a protected class such as race or national origin, there has to be an overwhelmingly compelling reason for this law.
  • Intermediate Scrutiny: assumption that occasionally there may be a valid reason for differentiation based on sex or gender. Often exposes archaic notions on differences between the sexes.
  • Rational Basis Review: All other groups (not protected ones) and so long as there is any valid reason it will pass this review.

Age discrimination is also covered by the ADEA and is litigated in the same manner as the McDonnell Douglas method. A defense against this litigation is reasonable factors other than age (even if correlated with age, such as salary based on years of experience).

Disabilities are also protected by the ADA in the same manner as the previous. The ADAAA was passed recently so now case laws relating to this maybe outdated.

• Elements of an ADA claim:
  • Plaintiff has a covered disability
    • Includes physical, psychological, and infectious impairments
    • Now also covers perceived disabilities that could be discriminated against even without actually being disabled (e.g. cancer survivor)
  • Disability substantially limits a major life activity
  • Plaintiff was discriminated against on the basis of that disability
  • No reasonable accommodation was made

The “significant risk” exception means that if the disability actually (not just apparently) poses a threat to completing the job and/or the health of others it can be grounds for termination.

To defend, an employer need not show that the disability played no part but only that it did not play the entire part. The accommodation can also be an out if it is an undue burden.

In cases of sex discrimination for pay, suits can be brought for Title VII, Title IX, and the Equal Pay Act, depending on the particulars. The pay has to be equal for equal work, however, and if a male coach is more accomplished then he is entitled to a higher pay.

The weakness of these cases is when a male coach of a women’s sport team is less compensated than the coach of the men’s team, he has little recourse except to try and win through Title VII and Title IX. Also, if the men’s team generates more revenue but the university is marketing the men’s team more than the women’s team, that removes the university’s ability to argue that the pay discrimination is based on outside factors.

Leave discrimination takes many forms but the strongest is pregnancy leave discrimination. The Pregnancy Discrimination Act requires pregnancy to be treated the same as any other leave.

FMLA exists. lol.

The whole chapter basically revolves around the legal theory of respondeat superior which is also known as vicarious liability. Essentially, if an employee or whoever is doing something on behalf of an organization, that organization bears some liability for mishaps that occur as a result of doing the thing. These are some examples of places where it does or does not apply:

• Road mayhem
  • If your employee is conducting business for you on a journey, but on their off hours they create mayhem, you are not at fault
• Ratification
  • If you egg on one of your employees for doing shady stuff and then bad things happen, you are at fault
• Negligent hiring
  • If you hire someone shady without doing due diligence and shady things happen you are at fault
• Negligent retention
  • If one of your employees is doing bad things and you don’t stop it you are at fault
• Independent contractors
  • If you have an independent contractor and you are not exercising specific control over them, you are not at fault
  • Unless you didn’t do your due diligence in contracting them, then you are at fault (negligent selection)
• Volunteers
  • If your volunteer is doing something specifically under your control and shady stuff happens you are at fault
• Collegiate athletes
  • If you are a university and your student athlete punches someone you are not at fault (unless there was some patten you ignored maybe?)

So yeah that was fun.

Alriiiiight.

Contract law is concerned with clarifying and enforcing the will of the parties in determining agreements. The principles of how contracts are normally interpreted are called canons of interpretation. Some of these are:

• Interpret the contracts as integrated wholes in a way that makes an overarching sense
• In the event of an ambiguity, the document will be interpreted most strictly against the party that drafted the document

When writing a contract, consider the worst case scenario. But we already knew that.

The four fundamental aspects of a contract:

• Agreement
  • A contract begins with an offer, which can be accepted or counteroffered
• Consideration
  • The exchange of value (money, goods, services, etc)
  • The courts do not litigate the value of each side, or adjudicate whether a deal is unfair in the relative value of each side
• Capacity
  • The legal competence to enter into the contract
  • Minors, the intoxicated, and the mentally incompetent are not eligible for entering contracts
• Legality
  • The enforceability depends on the legality of the terms

Oral contracts are difficult to enforce, and are not permitted for the following sport-related contracts due to statutes of fraud:

• Agreements for the sale of land or interest in land
• Contracts for $500 or more
• Contracts that cannot be completed within one year

When a contract is not fulfilled, it is a breach of contract, and the injured party may attempt to get their remedy through the court through contract damages. Here is some more contract vocab:

• Compensatory damages are moneys paid to allow the individual injured by the contract breach to help them fulfill the contract elsewhere
  • Mitigation of damages is obligatory within reason, that one must go to another reasonable length to complete the deal elsewhere rather than automatically get the maximum possible payout
    • A difficult example is in a university coach. If the university breaches its contract with the coach, through mitigation of damages the coach is obligated to seek employment elsewhere, but cannot be compelled to take a job that is inferior in compensation, geography, status, etc.
• Specific performance is when the courts compel someone to fulfill a contract because the property involved is unique and no amount of money can remedy the breach
  • Not applicable to personal service contracts, as one cannot enforce intention to complete a task (such as play a sport) effectively
• Contracts may contain liquidated damages provision in the case that the cost of a breached contract cannot be determined
  • Courts do not uphold penalty provisions in contracts that charge money for breach without the money being a remediation for the contract
• Rescission is a tool to undo a contract, as in repairing fraud, and restitution is returning the goods/services of the contract.
  • Very short paragraph, doesn’t really give a lot of info but these are probably just for undoing fraudulent contracts
• Promissory estoppel is what can happen when one party relies on the promise of another and is injured in the subsequent happenings. The three parts of the P.E. are:
  • A promise is made that should reasonably be expected to induce reliance
  • The reliance occurs based on the promise
  • Some detriment occurs to the party that relied upon the promise
    • This is how verbal promises that put someone into a bad position can be made whole
• A contract may be unenforceable if there exists an unconscionable disparity of bargaining power (e.g. one party dictated all terms)
  • The NLI (National Letter of Intent) for collegiate sports may represent a huge disparity of power
• Organizations act through their representatives. The organization is the principal and the person acting on behalf of the principal is the agent.
  • Agents have actual authority provided by the principal to engage in certain transactions and these powers are provided by and limited by the principal.
  • If the agent goes beyond their limitations and conveys more powers than they have, this is called apparent authority.
• Contracts for employment must delineate duties and responsibilities
  • Collegiate coaches must have NCAA stuff in their contracts
• A reassignment clause gives the employer the right to transfer the employee to a different position
  • If an employee is reassigned so that they cannot complete their duties, this is called constructive discharge which is equivalent to termination
• Compensation has to be clearly spelled out in contracts
  • Compensation can include perquisites (perks) and these can include shares of profits from all kinds of things.
• Contracts can include a rollover clause in that the contract will automatically renew if notified every year.
  • Contracts also have language that defines what is just cause for termination and can include morals clauses.
• Contracts can contain restrictive covenant or non-compete clauses to protect the interests of the employer.
• Other contract stuff
  • Athletically related income: NCAA coaches must report all income outside the university
  • Arbitration clause: yup
  • At-will employee: gross
• Even an at-will employee cannot be fired for certain things related to public policy:
  • Discrimination on basis of race, ethnicity, gender, age
  • Whistleblowing
  • Cooperating with an investigation
  • Filing unfair labor practice charges
  • Complaining about or reporting OSHA violations

WHEW.

There’s more though. Tort relates to employment as well:

• Defamation: truth is a complete defense to a defamation claim, so companies usually just say true things.
  • Qualified privilege allow protection to employers providing references for employees
• Negligent misrepresentation
  • making offers you can’t back up can be costly
• Fraud
  • Failure to disclose dirt on a predator is fraud if you only say nice things but not if you say nothing at all
• Tortious interference with contract relations
  • Poaching clients

CHRIST.

Introduction: THIS CHAPTER WILL NOT MAKE YOU A LAWYER

Some handy vocab, much of which I already knew but is handy anyway:

• Constitution: foundational document that sets the basic operating principles of a government including limitations
• Statute: written law created by legislation body (congress, etc)
• Regulation: rules built to enforce (“operationalize”) the statutes created
  • Example: Title IX is one paragraph, but to enforce it the US Dept of Education has written pages of regulations
• Common law/case law: the application of existing laws to particular cases, established by jurisprudence
• Jurisdiction: the authority of a particular court to resolve a dispute
  • Diversity of citizenship jurisdiction escalates a state law dispute to federal level (e.g. if residents of different states, or resolving an excess of $75,000)
• Concurrent jurisdiction: the fact that state courts can also have jurisdiction on resolving federal cases
• Certiorari: the appeal to the supreme court (denial of certiorari means the lower court’s decision stands)
• Appeals can only be made in the case of legal error, in that the existing law was not properly applied to the case

Criminal court is for crimes, while civil court is for non-crimes (though I think the book is really skipping over defining what a crime is). A tort is a civil wrong other than a breach of contract. This is usually for causing body or property harm, or harming someone’s ability to make money e.g. slander.

In criminal court, guilt must be established beyond reasonable doubt, while in civil court guilt is established by a “preponderance of evidence” which is a lower legal threshold to clear.

A civil case follows the following steps:

1. Bad thing happens
2. Plaintiff files complaint with the appropriate court
3. Defendant answers each charge with innocence or guilt, or motions to dismiss
4. If not dismissed, period of discovery occurs
   • Depositions: oral testimony under oath
   • Interrogatories: written testimony under oath
5. Due to deposition, one of the following may occur:
   • Out-of-court settlement
   • Summary judgment
     • Compensatory damages to cover loss/medical bills/etc
     • Punitive damages if malfeasance is determined
   • Trial on the merits
6. A trial may be concluded in many ways:
   • Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted
   • Motion for summary judgment
   • Petition for a preliminary injunction
     • Granted if all the following are met:
     • Plaintiff has a strong case
     • Plaintiff will suffer in the absence of a preliminary injunction
     • The injunction will not injure the defendant worse than not doing so will injure the plaintiff
     • The injunction will not have an adverse effect on the public interest
7. In a trial on the merits, the court generally uses canons of statuatory construction to reach a conclusion in interpretation of the laws
   • Many canons exist and they are a suite of tools, so using them is like using “thrusts” and “parries”
   • Interpretations must be made of regulations, constitutions, and common law
   • If a higher court makes a decision, it is binding to the lower courts, but persuasive to other courts not obligated to follow precedent
8. Stare decisis and precedents are supposed to make an orderly, uniform predictability to the rule of law. Not sure what country the authors think they live in but at least it’s a nice idea.

Alternative dispute resolutions (ADR):

• Arbitration
  • Final and binding
• Mediation
  • Nogiation the settlement of the dispute
• Ombudsperson

Legal resources:

• Primary legal resources
  • Laws (statutes and regulations)
  • Court decisions
• Secondary legal resources
  • Legal encyclopedias
  • Law dictionaries
  • Case summaries
  • Restatements
  • Treatises & hornbooks
  • Law reviews
  • Case digests
  • Websites & databases

Steps to doing legal research:

1. Identify the issue
2. Find the relevant law
3. Read & summarize the relevant law
4. Update the relevant law (check the latest precedents, e.g. in Shepard‘s)
5. Organize your information

Read case studies to get an idea for how existing law is applied. Boy talk about a chain of logic!

Also in the case law hypothetical examples it uses the term “transsexuals”, uh the book was published in 2014 but I bet that example was written in the first edition and people forgot to update it ^_^;

AKA the chapter that’s not in the 4th edition (but the material probably is)

Steps in preventative law (essentially an audit):

• Risk identification
  • Identifying possible sources of legal danger
• Risk assessment
  • Determining relative probability of resulting legal danger resulting from inaction
    • Use previous history
    • Use statistics and trade journal case studies
• Risk evaluation
  • Determine whether retaining this risk is in line with the mission of the organization (i.e. whether it’s worth it to keep the risk in place)
• Development of preventative law plan
  • Four possible options:
    • Risk elimination
      • Go away from the service that is causing the legal danger
      • Only done if the service is peripheral to the mission of the org
    • Risk retention
      • Live with the risk and eat the loss if it happens
    • Risk transfer
      • Insurance or other way to have a third party bear the legal risk
    • Risk control
      • Mitigate the risk with possible solutions that lower the risk without removing the service
• Implementation of the preventative law plan
  • Be sure the entire org understands these possible legal risks and why the steps proscribed to mitigate those risks are important
    • Use effective policies & procedures
    • Use contract law to your advantage
    • Develop effective training programs
    • Develop evaluation procedures