A Discussion of Legal Issues Affecting Big Chapters Prepared for the officer Leadership Training Materials

A DISCUSSION OF LEGAL ISSUES AFFECTING BIG CHAPTERS

PREPARED FOR THE

OFFICER LEADERSHIP TRAINING MATERIALS

Submitted by Aditya S. McDuffy, LL.M., Esq.

Chair, National Legal Review Committee

February 2001

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TABLE OF CONTENTS

CHAPTER PAGE

INTRODUCTION: SOURCES OF LAW 3

HOW TO ANALYZE A LEGAL ISSUE 4

CONTRACT LAW 6

AGENCY LAW: DUTIES IMPOSED ON MEMBERS ACTING

ON BEHALF OF THE CHAPTER 9

AGENCY LAW: ACTUAL AND APPARENT AUTHORITY 11

CONCLUSION 13

ENDNOTES 13

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INTRODUCTION: SOURCES OF LAW

One legal dictionary defines law as "the legislative pronouncement of the

rules which should guide one's actions in society; "the aggregate of those rules

and principles of conduct promulgated by the legislative authority [court

decisions], or established by local custom."1 The law stems from a number of

sources including the U.S. Constitution, federal statutes, state constitutions, state

statutes, local ordinances, state and federal court decisions, and rulings of

federal, state and local agencies. Laws vary from state to state and at times,

from community to community.

Because BIG chapters throughout the country are very active and

participate in unlimited community, professional and cultural activities, it is

impossible to define all of the laws that could potentially affect BIG members.

For this reason, this document provides general background information that BIG

members can use in conducting the day-to-day business of their chapters. This

document does not replace the need for legal counsel, and does not contain

enough information to make someone an expert in any legal matter.

This document provides a general framework for analyzing legal issues. It

then sets forth basic principles of contract and agency law that are applicable in

most states.

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HOW TO ANALYZE A LEGAL ISSUE

In order to analyze a legal issue one must identify facts underlying the

issue, determine the potential questions of law raised by those facts, identify the

applicable rules of law, analyze the application of the law to the facts, and

formulate a conclusion as to how the law will be applied. This process is referred

to as FIRAC - Facts, Issues, Rules, Analysis and Conclusion.

Whenever a legal issue arises, one must first gather all of the relevant

facts pertaining to the situation. BIG members should investigate and document

where, when, how and why a situation occurred, in addition to examining who

was involved and exactly what happened.

After the facts are gathered, one can identify potential questions of law

raised by the facts. Depending upon the situation, this phase can be very

difficult. Attorneys or persons with specialized knowledge can often identify

potential problems that are not readily apparent to others.

Research must be conducted to locate applicable laws. This phase may

involve researching ordinances, regulations or statutes. It may also involve

studying case law and/or the history underlying rules and regulations.

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Sometimes the law in a state doesn't address a specific issue. In this

instance, the law of other states may be consulted. Secondary research

materials and legal abstracts can be used as persuasive evidence that the law

should be interpreted in a particular manner. Also, arguments can be made that

current law should be changed.

When analyzing legal issues, one should examine how courts have

applied the law to other cases with similar facts. Different courts sometimes

apply the same law in different ways. The outcome of cases varies based on the

facts of each case. It is important to remember that reasonable minds can

drastically differ on any given situation. In a legal matter it is the analysis of the

judge or jury analyzing a case that is most important.

Analyzing legal issues is a complex process. Laws change from state to

state. The process for adjudicating legal issues varies from state to state.

However, FIRAC is a method for analyzing legal issues that can be universally

applied.

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CONTRACT LAW

A contract is "a promise, or set of promises, for breach of which the law

gives a remedy, or the performance of which the law in some way recognizes as

a duty."2 It is a mutually binding agreement. In