Legal Concepts for Facility Managers

Linda Thomas-Mobley

• Editore: Wiley-Blackwell
• Anno: 2014
• ISBN:
  9781118786833
• Edizione: 1
• Argomento: Betriebswirtschaft
• Categoria: Industriemanagement

Legal Concepts for Facility Managers

Facility management – as any profession encompassing multiple disciplines and integrating technology, people and physical space – is not only complicated but fraught with occasions to be exposed to various legal liabilities.

Successful facility managers need the ability to manage risk well. They must understand the various ways the built environment can malfunction, anticipate the most likely problems and protect the owner's interest in such a way that the building can be safe for occupants yet productive for business purposes. The Facility Manager must therefore know the major tenets of risk avoidance, including knowledge of possible legal obstacles.

Legal Concepts for Facility Managers informs facility managers of their legal responsibilities and helps them avoid unnecessary exposure to liability. Each major legal theory is explained and illustrated with charts or case histories. Chapter discussion questions help students recall salient information and are also intended to be used as homework assignments or prompts for classroom discussions.

As with any legal textbook expressly written for professionals who are not in the practice of law, the objective of this book is to inform students about their legal responsibilities. This text is not intended for students preparing to practice the law. It can be used in any course that teaches built environment professionals how to avoid unnecessary exposure to legal liability.

Part I

Fundamentals

Introduction

This section serves as an introduction to the US legal system and its unique form of government. The chapters are written to assume that the student has no background in the subject and makes an attempt to define what “law” means. As you will quickly discover, defining the law is difficult because it is more concept or theory than specific rules.

Understanding the three main functions that include regulator, facilitator and dispute resolver is also considered. Finally, appreciating legal theory is difficult without basic knowledge of the US Government and the operation of its three branches.

Chapter 1

American Jurisprudence

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We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Constitution of The United States of America

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1.1 Introduction

Using the famous preamble to the United States Constitution is fitting to begin this chapter, and this entire text, for several reasons. The first and most important reason is because the Constitution is the supreme law of the land in the USA, and all laws must be in accord with this charter. Another reason for using the preamble is because it shows the intent of the founding fathers. All of the words not usually capitalized in the middle of a sentence, such as People, Justice and Tranquility, indicate a higher level of importance placed on these concepts by the founders. Finally, the British spelling of the word “defence” is used instead of the US English spelling of defense. This spelling hints at the origins of US Law that lie in Great Britain.

In Chapter 1, we will consider the basic theory behind US Law. This basic theory or philosophy of law is known as jurisprudence. These theories are typically debated in US law schools at the commencement of a student's course of study. They form the foundation for understanding why judges apply laws in a particular way. The process used by judges applying law to a case is one component of a larger skill set used by judges and attorneys, referred to as legal reasoning. Although deceptively simple sounding, the student is urged not to underestimate the importance of understanding legal reasoning and the resulting legal argument. Briefly, legal reasoning involves understanding what specific issue is at hand; knowing what legal theory governs this type of issue; knowing which facts are relevant to this legal theory and applying the legal theory to the facts.

At the end of this chapter the following student learning outcomes are expected:

• Discuss the concept of “law”.
• Recognize the specific functions it serves.
• Describe how law is made.
• Explain how law is implemented.
• Define the components of the US Legal System.
• Explain the formal dispute resolution process.

1.2 Definition

Defining law as it is used in the US legal system is so problematic that even our best efforts fall short. In one aspect the law is a set of rules used to maintain peace and order in society. It is also a state-recognized notion or principle such that failure to follow it can bring about punishment. Additionally, it is a set of community standards necessary for us to recognize acceptable behavior.

To get around this problem, textbook authors describe what the law does, or how the law is applied. In light of the goal of this textbook, we shall follow suit and describe the law's main functions, what the law and those who practice law hope to accomplish, and how it is applied to the built environment.

1.3 Functions

Figure 1.1 depicts the three major functions of the law. In studying US law, we see that, for the law to have existed over hundreds of years, it must serve some function useful to society. These functions can be as varied as the individuals who rely on the law. However, three functions tend to be of the most significance; namely the functions of regulator, facilitator and dispute resolver. In its regulatory function, the law controls behavior so that society can function smoothly. As a facilitator, the law is a catalyst for action by deciding whether a question is best decided by a court, another body of government such as the legislature, or not subjected to judicial review at all. Finally, the function most familiar to us all is the law's dispute resolution function, useful in settling various types of disagreements without violence.

Figure 1.1 The three major functions of US law.

The law as regulator serves to keep individuals within the accepted customs of society, thereby ensuring a smoothly functioning civilization. Without this function another system for maintaining accepted customs would be necessary. If you have ever been a part of the formation of a new club or informal social group, you have experienced the need for this regulatory function.

For example, in social media environments there are written or expressed customs and unwritten customs generally expected of members. A written custom, for example, may be that each individual may only have one account and can only post messages that are non-offensive. An unwritten custom may be the preference for short, pointed statements and the use of initialisms such as “LOL” that are understood by most members without the need for explanation. The software designer easily regulates these customs by writing computer code that limits the number of accounts at registration and controls the number of characters a user can use in a post. In this instance, the software designer, using the “law” of computer code is serving as a regulator. As in many instances across society, this regulatory function speaks to the members' sense of fairness and seeks to control excesses that may undermine the entire purpose of the community.

In the greater society, regulatory laws are plentiful and include controls on many areas of industry, from laws against insider trading, to laws controlling fire retardant standards in children's sleepwear. The regulation function promotes an ordered society where citizens can predict the consequences of their actions. If an entrepreneur can predict the consequences of her decisions, she is able to easily assess risks and being able to assess risks allows for economic stability.

Much more subtle is the law's function as a facilitator. Since the legal system in the USA is an actual system of governmental bodies and not just one entity, it requires a facilitator to assign roles and decide which of those bodies should speak to a decision. The different branches of government perform specific and unique duties. This structure allows for the equal division of power and control among three branches of government: judicial, executive and legislative. Additionally, deciding whether or not a matter should be taken up in a state or a federal court is the job of the facilitating function of the law. Though this function is subtle, parties resolving a dispute within the rules set up by the law serving as facilitator can fully rely on decisions made by the courts. This function will be further explained in Chapter 2 when we discuss state and federal jurisdiction, and the role these play in legal decisions and legal strategy.

The law's dispute resolution function is easily understood in the context of courts making judgments for or against a party involved in a disagreement with another. This major function serves society by attempting to settle disputes in a peaceful manner. It allows people with distinct interests the opportunity to assert claims and resolve differences peacefully. This function is closest to the idea of the law as a series of rules, called the black letter rule of law. Even in the law's dispute resolution function, the regulating and facilitating functions also operate in the background.

While this short summary provides an overview of what the law is used for, it is important to remember that the functions of the law are as varied as the individuals who rely upon it. The other functions of the law will be discussed when appropriate in the hopes of demonstrating the earlier assertion made. That is, the law is not simply a list of rules to be used for dispute resolution.

1.4 Sources of law

In the instance of US laws, the source of law has a direct relationship to how the law impacts Facility Managers. The creation of law is a by-product of governing citizens. This is why it is often said that the USA is a nation of laws since the act of governing can also be an act of making law. In the US federal system, power is shared between the federal and state governments. This arrangement gives local entities some autonomy to deal with parochial issues while also protecting numerically minority populations from domination by the majority. Allowing a state like Rhode Island to control its driving age laws for its own citizens gives an amount of independence to the smaller state. Teenagers living in rural areas may require the ability to drive earlier than teenagers living in New York City. Not subjecting citizens in Rhode Island to the driving age laws of a city in New York State protects this independence.

In this system there is recognition that a central government is still necessary to govern certain issues on behalf of all citizens. It would be a confusing situation if, for example, each state independently controlled currency, foreign relations and defense of the nation. In contrast, issues such as building codes and sales tax are better controlled at the state level.

1.4.1 United States Constitution

The creation of any organization requires a basic set of rules to provide a framework for operation. This concept applies to all systems including the system of the US Government. The governing charters for the USA include the Declaration of Independence, the Constitution and the Bill of Rights. The US Constitution regulates power among the federal government and government branches, federal government and the states, and all governments and the people.

This basic framework—this Constitution of the United States—also comprises the primary law in the USA. It and its amendments enumerate the basic rights of the citizens of the United States, and detail the three chief branches of the Federal Government and their jurisdictions. Figure 1.2 illustrates the Legislative, Executive and Judicial branches, how they relate to the Constitution and each other, and which government officials are connected to the various branches.

Figure 1.2 Branches of US Government.

In addition to being a major source of US law, the constitution is also important for understanding the structure of the government, its basic goals and how these goals are achieved.

However historically noteworthy, constitutional law does not play a significant role in the day-to-day operations of the built environment. Notable exceptions to this blanket statement include issues involving public contracts and timeliness of the application of certain human rights. In addition, each state has its own constitution, which directs the separation of powers among the state legislative, state executive and state judicial branches of government, and the protection of state citizens from the abuse of power by citizens of other states.

1.4.2 Statutory law

Because of growth, there is sometimes the need for expanding and updating the Constitution. This modification to our laws can be accomplished by several means, one of which is enacting legislation by a representative congress elected by the people. In addition to modifying the law by amending the Constitution, congress also enacts legislation. The word “legislation” is used interchangeably with Statutory Law. Proposed new ideas or bills that are approved according to the rules set by the Constitution become statutory law and are also identified as statutes. Figure 1.3 depicts a high level flowchart of the path an idea takes to become a law in the federal legislative process. Other levels of government have their own processes but many are similar to the federal process.

Figure 1.3 Pathway from idea to law.

Each year, legislation proposed by congress has, and continues to add to, rules in the constitution. This expands the total number of laws and creates an additional source of law, called “statutes”, in the US system. There are many more statutes than there are distinct laws in the constitution. Both the constitution's rules and the rules contained in statutes have the weight of law and are applied by the courts in dispute resolution.

Even though legislation is used to expand the constitution, these laws are ...