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Chapter 1 Notes: Lawmaking, Interpretation, and Early Case Analysis

Introduction: Lawmaking, interpretation, and the imperfect sausage of law

  • The process of making laws can be messy and compromise-filled (the “sausage-making” metaphor).
  • Democratic processes influence lawmaking; efficient rules might require different governments, but we study the imperfect reality under our current system.
  • Today’s focus: how to deal with laws that are hard to understand for regular people and even harder for lawyers and judges to interpret.
  • Plan for today:
    • Explore methods of legal interpretation and how they shape outcomes.
    • Look at specific cases to sharpen legal analysis skills.
    • Preview Chapter 2 on ethics and introduction to ethical problem solving alongside legal analysis.
  • Administrative notes:
    • Make sure you’re linked to MindTap (MindTap = MindTap in the textbook’s platform) and complete Chapter 1 exercises.
    • Expect a 30-question quiz at the end of Topic 1, open-book and open-notes, to be taken in the instructor’s app outside class.
  • Preview of a hypothetical: how a law about campus security weapons would be interpreted by judges and officials.

The Umpire vs. The Judge: interpreting law through baseball rules

  • Some argue that a judge’s role is like an umpire: call balls and strikes, avoid injecting personal values.
  • Chief Justice Roberts’ view: “It is all about calling balls and strikes, not playing the game.” Nobody goes to see the umpire; the game continues regardless of calls.
  • The class will test this theory using baseball rules as a model for interpretation.
  • Activity setup:
    • Tom acts as the umpire; two team managers (Brooklyn and Catery) argue their positions.
    • Focus: the baseball strike zone and what constitutes a strike vs. a ball.

The Strike Zone: a concrete rule with interpretation challenges

  • Defined rule for MLB strike zone:
    • The zone is the area over home plate from the midpoint between the batter’s shoulders and the top of the pants, down to a point just below the kneecap.
    • A strike call requires part of the pitched ball to cross over home plate within this zone.
  • Diagrammatic description: home plate resembles a little house; the zone’s top boundary is midway between shoulder line and pants line; bottom boundary is just below the kneecap.
  • Discretion and interpretation:
    • The umpire has some discretion; a literal application of the rule may yield inconsistent results depending on stance and body shape.
    • Example controversy: a batter with an unusual stance can distort where the strike zone should be, challenging a strict, text-only interpretation.
  • Debate: originalist vs. non-originalist interpretation of rules:
    • Originalist: interpret strictly by the written text and original intent; less room for adaptation.
    • Non-originalist: interpret in light of purpose and practical outcomes (e.g., what’s best for baseball);
      thus, more judicial discretion.
  • Core question: where does the law come from and how should it be interpreted when text is ambiguous?

Where is the law? Sources and kinds of law

  • Law is written and stored in many places:
    • The Constitution (federal and state) – supreme law of the land.
    • Statutes – laws passed by legislatures (e.g., Arizona statutes).
    • Administrative codes and regulations – rules created by agencies, often technical in nature.
    • Executive orders – directives from the governor or president directing agencies or contractors; may affect policy without a legislative vote.
    • Case law – decisions by appellate courts that interpret statutes and constitutional provisions.
    • The set of law books, constitutions, and digital sources (phones/computers) where laws reside.
  • Practice activity: take a look at four types of sources in Arizona:
    • A minimum wage statute for tipped employees (Arizona statute): locate at azleg.gov.
    • Ferguson v. City of Phoenix (a case): locate the case file.
    • Arizona Administrative Code: regulations on acupuncture education requirements.
    • Governor Katie Hobbs’ Executive Order 2023-1: what it covers and its scope.
  • Note on accessibility and help: students can ask for interpretive help locating these sources.

Practical statutory research (illustrative examples discussed in class)

  • Tip-based minimum wage in Arizona (statute): key takeaways from the discussion:
    • Arizona minimum wage (as of 2021) was $13 per hour.
    • For tipped employees, employers may pay up to $3 per hour less than minimum wage if tips make up the difference.
    • Thus, if tips cover the shortfall, an employee could be paid as low as 13 - 3 = 10 per hour, subject to tips meeting the difference.
  • Federal vs. state wages:
    • Federal minimum wage is lower than Arizona’s; when state law is not in effect, federal minimum wage applies (e.g., around 7$–$8 per hour, though actual numbers may vary by year).
  • Ferguson v. City of Phoenix (1998, Ninth Circuit focus discussed in class):
    • Issue: whether the 9th Circuit recognized a duty to provide access and ensure deaf individuals could call 911 effectively.
    • Facts: 911 system not recognizing a deaf caller’s beeping/beep-transmissions as valid calls; required upgrades for accessibility.
    • Outcome: federal courts entered rulings mandating accessibility improvements; the case had broad impact across multiple Western states (California, Oregon, Washington, Idaho, Hawaii, Arizona, Nevada).
    • Lawyers involved discussed at length; the case is used as context for accessibility, public service obligations, and the reach of federal law.
  • Arizona Administrative Code (acupuncture regulation):
    • Regulation requires specific educational hours and training; the discussion notes a 60-day training window exists along with broader hour-based requirements.
  • Executive Order 2023-01 (Arizona):
    • The governor issues executive orders directing state agencies and contractors on policy matters.
    • Executive orders are powerful but controversial as they do not pass through the legislative process; contrasted with statutes.
  • Takeaway: there are many sources and forms of law; interpretation requires understanding the source and its context.

The “meat and potatoes”: problems with poorly drafted laws and basic legal analysis

  • A Texas civil-liability draft cited in class illustrates how poorly drafted language can create broad, ambiguous liability:
    • A civil action can be brought by any person (except state/local officers) against anyone who performs or induces an abortion in violation of the subchapter, or who knowingly aids or abets such conduct, or who intends to engage in the conduct.
    • The text raises questions about who can sue (plaintiff), who can be sued (defendant), and what conduct triggers liability, leading to potential injustices and unpredictability.
    • The example underscores why careful drafting matters: vague provisions can produce unintended liability and enforcement challenges.
  • Distinctions: criminal vs civil law (why they matter for interpretation and outcomes):
    • Civil case: dispute between private parties; remedies typically monetary; burden of proof is lower; the plaintiff sues the defendant (plaintiff vs. defendant).
    • Criminal case: government prosecutes; aims to determine guilt; severe penalties (liberty, fines); higher standard of proof: beyond a reasonable doubt.
    • Summary of key terms:
    • Plaintiff: the person who brings the suit in a civil case.
    • Defendant: the party being sued.
    • Guilt vs liability: criminal cases seek guilt; civil cases seek liability (monetary responsibility).
    • Burden of proof:
      • Criminal: beyond a reasonable doubt (high standard).
      • Civil: preponderance of the evidence (more likely than not).
  • The FIREC method for case analysis (a practical tool introduced in class):
    • F = Facts: identify key facts.
    • I = Issues: determine the legal questions generated by those facts.
    • R = Rules: extract the applicable law (statutes, constitutional provisions, precedents).
    • E = Application: apply the rule to the facts.
    • C = Conclusion: reach a conclusion based on the application.
  • Discussion skills emphasized:
    • When disagreeing, focus on the position and provide evidence and logical reasoning.
    • Include references or sources when arguing (in-class practice for persuasion and rigor).
    • Be mindful of open-mindedness and the goal of persuading, not merely asserting opinions.
  • Classroom conduct and ethics:
    • Emphasis on respectful dialogue; experiences with harassment or disrespect can undermine a learning environment.
    • The class aims to create a safe, respectful space for discussing controversial topics.

Case discussions: two illustrative scenarios used in class

1) Cune v. PUBZone (a civics/ethics teaching case, not a real published decision)

  • Facts: Maria Kirkland (PUBZone owner) prohibits motorcycle gangs from entering wearing colors; gangs enter anyway and assault a patron in the men’s room after being served; jury awards damages to the victim; trial judge grants judgment for PUBZone (no liability).
  • Issue: Did the PUBZone owe a duty to protect the patron from the attack?
  • Rule (as stated by the judge in the case): The owner could not have foreseen the attack and thus had no duty to protect against an outlaw motorcycle gang.
  • Analysis (class discussion): students argue for and against foreseeability and duty; points include:
    • Foreseeability can support a duty if the business knew or should have known about a risk (e.g., danger from gangs despite a posted rule).
    • A business may have a duty to take reasonable steps to protect patrons if there is a foreseeable risk; a private establishment can still be held liable if it could have foreseen harm.
    • The discussion demonstrates how different parties interpret foreseeability and duty, and how appellate courts might decide differently depending on the jurisdiction and facts.
  • Takeaway: Real-world duties of care by private businesses depend on foreseeability and context; the exercise shows how arguments can be made on both sides and why drafting rules matters for predictable outcomes.

2) Bill and Diane (two-part hypothetical: criminal vs. civil analysis)

  • Setup: Bill sells cocaine to a person who presents themselves as a DEA agent (Katrina). Diane and Bill have a separate discussion about a promise-related transaction: Diane offers to provide water for a promised payment of $500 later.
  • Part A: Bill’s case (criminal) – what is the rule and outcome?
    • Rule: It is illegal to sell drugs; in this case, to a purported DEA agent, which is illegal under federal law (drug distribution).
    • Application: Bill sold drugs to Katrina; the rule clearly applied; the likely result is guilt and federal imprisonment.
  • Part B: Diane’s case (civil) – contract-based dispute with no formal written contract.
    • Rule: Contract law governs; oral contracts are enforceable if there is evidence of an offer, acceptance, and consideration; the lack of formal writing complicates enforcement.
    • Application: If Diane can prove there was an offer and an agreed exchange (and possibly witnesses or communications), she may recover damages for breach of contract. Damages could include compensation for the value of water and potentially attorney’s fees, depending on state law.
    • Evidence considerations: whether there was a clear contract, whether communications (texts, calls) establish an offer/acceptance; one-party consent to recording may vary by state (Arizona allows one-party consent).
    • Practical note: proving an oral contract requires corroborating evidence; without it, Diane’s claim may be weak.
  • Overall learning: Distinguishing criminal (government prosecutes, high standard of proof) from civil (private dispute, damages, lower standard of proof) hinges on the nature of the case, the parties, and the relief sought.

Ethics and the study of law: Chapter 2 preview

  • The ethics module introduces ethics and social responsibility as a complement to legal analysis.
  • Pepper the Dog (an advice column) as an example of ethical reasoning applied to everyday scenarios (e.g., returning mischarged items after discovering an undercharge vs. keeping the savings).
  • Central idea: Ethics asks what one ought to do, which can diverge from what the law requires; ethics are influenced by personal, political, professional, and business values.
  • Types of ethics discussed:
    • Personal ethics: individual values and beliefs.
    • Political ethics: decisions aimed at the greater good of a community or country; may require choices that harm some to benefit others.
    • Professional ethics: rules governing professional conduct (e.g., lawyers’ duties to clients and the court; confidentiality and candor).
    • Business ethics: decision-making within business contexts; often aligned with professional ethics but may be influenced by corporate norms and incentives.
  • Discussion prompts for ethical decision-making:
    • When do laws require or conflict with ethical choices?
    • How should one balance personal values with professional responsibilities and societal expectations?
    • The course will further explore these questions as it moves into Chapter 2.
  • Assignment framework for topic one (writing exercise):
    • Students should craft an argument that uses originalism or non-originalism, explaining why their chosen approach best analyzes a given case.
    • The assignment should include recent, properly formatted citations and a 100-word comment on a peer response.
    • The rubric emphasizes content, sourcing, citations, grammar, and word count.

Key concepts and terms to remember

  • Law sources: Constitution, Statutes, Administrative Code/Regulations, Executive Orders, Case Law.
  • Legal analysis tools:
    • FIREC method: Facts, Issues, Rules, Application, Conclusion.
    • Distinctions: Criminal vs Civil law; Plaintiff vs Defendant; Guilt vs Liability; Beyond a reasonable doubt vs Preponderance of the evidence.
  • Interpretive approaches:
    • Originalism: strict textual/original intent interpretation.
    • Non-originalism: interpret in light of purposes, outcomes, and real-world implications.
  • Important formulas and definitions in context:
    • Strike Zone (as defined above): see the text for the boundaries and the condition “part of the ball must cross over home plate within the described zone.”
    • Wage and tip-credit (Arizona):
    • Minimum wage (Arizona, 2021): W_{ ext{min}} = 13 dollars per hour.
    • Tip credit allowed: C_{ ext{tip}} = 3 dollars/hour if tips make up the difference.
    • Resulting wage for tipped employees: W{ ext{tip}} = W{ ext{min}} - C_{ ext{tip}} = 13 - 3 = 10 ext{ dollars/hour} (if tips cover the shortfall).
    • Federal minimum wage is lower in general than some state rates; applicable when state law is not in effect.
    • Standards of proof:
    • Criminal: beyond a reasonable doubt (high standard).
    • Civil: preponderance of the evidence (more likely than not).
  • Practical ethics and conduct:
    • Respectful discussion norms; openness to changing minds through evidence and argument.
    • Acknowledgement that personal, political, and professional ethics can diverge; the aim is to reason about what should be done in a given context.

Quick takeaways for study and exam prep

  • Expect to analyze cases with FIREC, identify the correct legal regime (criminal vs civil), and explain why a particular outcome follows from the rules and facts.
  • Be prepared to discuss how interpretive approaches (originalism vs non-originalism) affect judicial decisions in ambiguous texts.
  • Remember the real-world relevance of law sources and the practical challenges of drafting clear statutes (as illustrated by the long example of a poorly drafted abortion-liability provision).
  • Understand how ethics interacts with law: ethics informs decisions even when the law does not mandate a particular action; professional and business ethics may shape behavior beyond legal requirements.
  • For MindTap and the reading assignment, anticipate quizzes on topics from Chapter 1 and be ready to apply FIREC, case analysis, and basic legal concepts to new scenarios.