Understanding the Law,9780324126716

Understanding the Law

by ;
Edition: 4th
ISBN13: 9780324126716
ISBN10: 0324126719
Format: Hardcover
Pub. Date: 2003-07-25
Publisher(s): South-Western College/West
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Summary

This widely accepted text discusses how various aspects of the law affect the individual. Hypothetical legal examples are interspersed throughout the text to illustrate important points of the law and to inspire lively class discussion.

Table of Contents

Preface xiii
Acknowledgments xiv
Unit 1 The Legal System and Basic Principles of Law
Introduction to Law
1(44)
Legal/Societal Relationships over Time: 1900s vs. 2000s
4(4)
What Is the Outlook for the Legal System in the Twenty-First Century?
8(1)
The English Source of U.S. Law
9(6)
Modern Common Law and Stare Decisis
12(3)
Modern Sources of U.S. Law
15(5)
Lawmaking by Legislators
15(2)
Lawmaking by the Executive Branch
17(1)
Lawmaking by Courts
17(2)
Lawmaking by the People
19(1)
Types and Classifications of Law
20(5)
Federal and State Law
20(1)
Civil and Criminal Law
20(1)
Private and Public Law
21(1)
International and Domestic Law
22(1)
Procedural and Substantive Law
23(2)
Subject Matter Classification
25(1)
The Relationship Between Law and Ethics
25(11)
What Are Ethics?
26(1)
Why Study Ethics?
26(2)
The Nature of Ethical Inquiry
28(1)
The Object of Ethics
28(1)
Ethical Standards
28(5)
Moral Reasoning
33(2)
Distinguishing Between Laws and Moral Values
35(1)
Using Court Cases
36(5)
Federal Court Decisions
37(1)
State Court Decisions
37(2)
Reading Court Cases
39(2)
Case: Eric J. v. Betty M.
41(2)
Chapter Questions and Problems
43(2)
Our Constitution
45(49)
What Is Constitutionalism?
46(2)
What Is Constitutional Law?
48(2)
What Is Judicial Review?
50(1)
What Is Separation of Powers?
51(1)
How Is the National Government Organized?
52(6)
Legislative Branch (Congress)
52(2)
Executive Branch (Presidency)
54(1)
Judicial Branch (Courts)
55(3)
What Is Federalism?
58(1)
What Constitutional Powers Belong to Citizens?
59(1)
The Police Power
60(1)
What Is the Supremacy Clause?
61(1)
What About Taxes?
62(2)
What Is the Commerce Clause?
64(2)
What Is the Bill of Rights?
66(2)
Incorporation Doctrine
67(1)
The First Amendment---and Free Speech
68(6)
Is Commercial Speech Protected?
69(1)
Is Symbolic Speech Protected? Even ``Hate Speech''?
70(2)
Free Speech and the Internet
72(2)
The First Amendment---and Freedom of Religion
74(3)
Establishment Clause
75(1)
Free Exercise Clause
76(1)
Could Guns Be Banned?
77(1)
Freedom from Unreasonable Searches
78(1)
Rights of an Accused to Due Process of Law
78(2)
Equal Protection of the Law in Education
80(3)
Affirmative Action in Education
83(1)
Right to Privacy
84(2)
Due Process and Equal Protection and Medical Testing
86(2)
Case: Thomas et al. v. Chicago Park District
88(1)
Case: Bush v. Gore
89(3)
Chapter Questions and Problems
92(2)
The Court System
94(48)
What Is a Court?
96(1)
What Is a Trial Court?
97(2)
What Is an Appellate Court?
99(1)
What Is Jurisdiction?
100(6)
Political Boundaries of State and Federal Courts
101(1)
Jurisdiction over Subject Matter
102(2)
Jurisdiction over Persons and Property
104(1)
Jurisdiction and the Internet
105(1)
How Are State Court Systems Organized?
106(2)
What Are Small Claims Courts?
107(1)
What Is the Federal Court System?
108(3)
Federal Trial Courts
108(1)
Federal Appellate Courts
109(2)
Trial Proceedings
111(25)
How Is a Civil Case Started?
112(1)
How Is a Criminal Case Started?
113(1)
What Are Pretrial Procedures?
114(3)
What Is a Jury?
117(8)
What Is an Action or Cause in Equity?
125(3)
How Is a Trial Conducted?
128(6)
How Is a Case Ended?
134(1)
What Happens if Either Party Appeals?
135(1)
A Sample Almost-Unedited State Appellate Court Decision
136(2)
Case: Trustees of Columbia University v. Jacobsen
138(2)
Chapter Questions and Problems
140(2)
Attorney-Client Relationship and Settling Disputes
142(50)
What Is the Adversarial System?
144(1)
Attorneys at Law
145(6)
Who May Practice Law?
146(1)
Specialization
147(1)
Associations of Lawyers
148(3)
What Are Professional Ethics?
151(7)
Confidentiality and the Attorney-Client Privilege
154(2)
Conflicts of Interest
156(2)
Frivolous Lawsuits
158(1)
Dealing with an Attorney
158(6)
Is an Attorney Necessary?
158(2)
How Do You Find a ``Good'' Attorney?
160(4)
How Do You Hire and Fire an Attorney?
164(6)
Attorney Fee Arrangements
165(3)
Financing Attorney Fees
168(1)
Financing the Client's Case
168(2)
What Is Legal Malpractice?
170(2)
Unauthorized Practice of Law
172(1)
Alternative Dispute Resolution
173(13)
Negotiation
175(1)
Mediation
176(2)
Arbitration
178(4)
Private Judging
182(1)
Ombudsperson
183(1)
Expert Fact-Finding
183(1)
Early Neutral Evaluation
184(1)
Mini-Trial
184(1)
Summary Jury Trial
184(1)
Partnering
184(1)
Conclusions Regarding ADR
185(1)
Case: New Hampshire v. Gordon
186(1)
Case: Equal Employment Opportunity Commission v. Waffle House, Inc.
187(3)
Chapter Questions and Problems
190(2)
Administrative Law
192(35)
What Is Administrative Law?
193(6)
Agency Process
193(1)
Substantive Law of Agencies
194(1)
Focus on Agency Process
195(1)
What Is an Administrative Agency?
196(1)
Executive Departments
196(2)
Independent Administrative Agencies
198(1)
State Agencies
199(1)
Brief History of U.S. Administrative Law
199(1)
Creation of Administrative Agencies
200(3)
Administrative Procedure Act (APA)
201(1)
Delegation of Power
201(1)
State Administrative Agencies
202(1)
Leading Areas of Administrative Law
203(4)
Business Finance
203(1)
Communications
204(1)
Employment Practices
204(1)
Environment
205(1)
Energy
205(1)
Free Enterprise and Healthy Competition
206(1)
Other Areas of Administrative Law
207(1)
Agency Power, Process, and Action
207(11)
The Independence of Agencies
207(1)
Regulations and Rulemaking
208(3)
Investigation
211(2)
Enforcement
213(2)
Alternative Dispute Resolution
215(1)
Adjudication
215(3)
Limits on Agency Power
218(4)
Political Control
218(1)
Constitutional Guarantees
218(1)
Public Accountability
218(1)
Judicial Review of Agency Action
219(3)
Case: Nash v. Auburn University
222(3)
Chapter Questions and Problems
225(2)
Crimes: Public Wrongs
227(71)
What Is a Crime?
230(5)
Federal Crimes
234(1)
Who Are Parties to a Crime?
235(1)
What Is the Corpus Delicti?
236(1)
Felony, Misdemeanor, or Infraction?
237(2)
What Are Crimes Against the Person?
239(10)
Murder
239(3)
Manslaughter
242(1)
Rape
243(2)
Extortion
245(1)
Kidnapping
246(1)
Robbery
246(1)
Mayhem
246(1)
Assault and Battery
247(1)
Hate Crimes
247(1)
Terrorism
248(1)
Stalking
249(1)
What Are Crimes Against Property?
249(3)
Arson
249(1)
Burglary
250(1)
Theft
250(1)
Receiving Stolen Property
250(1)
Identity Theft
251(1)
What Are Crimes Against Public Health, Safety, and Welfare?
252(1)
What Are Crimes Against Public Decency and Morals?
253(3)
What Are Some Examples of Other Crimes?
256(3)
White-Collar Crimes
256(2)
Miscellaneous Crimes
258(1)
What Are Some Defenses to Crimes?
259(5)
Self-Defense
259(1)
Duress
260(1)
Is Lack of Mental Capacity a Defense?
261(2)
What Is Entrapment?
263(1)
What Is the Statute of Limitations for Crime?
264(1)
Victim's Rights
265(2)
When Are Police Permitted to Search and Seize?
267(4)
What Procedures Lead to a Criminal Trial?
271(6)
Accusatory Pleading
271(2)
Arrest
273(1)
Booking
274(1)
Bail
275(1)
Arraignment
276(1)
Plea Bargain
276(1)
Preliminary Hearing
276(1)
What Are the Constitutional Rights of an Accused?
277(4)
Can Innocent Persons Be Convicted?
279(1)
Terrorism Issues
280(1)
What Is the Punishment of Convicted Persons?
281(5)
Punishment for Misdemeanors
281(1)
Punishment for Felonies
282(4)
What Are Parole, Probation, and Clemency?
286(2)
When Is Punishment Cruel and Unusual?
288(3)
Can a Defendant's Record Be Cleared?
291(1)
What Should You Do if Arrested?
292(1)
Case: United States v. Knights
293(2)
Case: People v. Chevalier
295(1)
Chapter Questions and Problems
296(2)
Torts: Private Wrongs
298(55)
What Are Torts and How Are They Classified?
302(1)
Torts by Intentional Conduct
303(15)
Assault and Battery
303(2)
False Imprisonment and False Arrest
305(1)
Intentional Infliction of Mental Distress
306(2)
Defamation
308(4)
Invasion of Privacy
312(1)
Conversion (Civil Theft)
313(1)
Fraud
314(3)
Bad Faith
317(1)
Torts by Negligent Behavior
318(16)
The Elements of Negligence
318(1)
Duty and Breach of Duty
318(2)
Causation: Actual and Proximate
320(5)
Intervening Causes and Shared Responsibility
325(1)
Violation of a Statute as Proof of Negligence
326(1)
Professional Malpractice
327(1)
Premises Liability
327(2)
The Injury Requirement and Damages
329(1)
What Is a Res Ipsa Loquitur Case?
330(1)
What Are Defenses to Negligence?
331(3)
Strict Liability Torts
334(6)
Workers' Compensation
334(2)
Defective Products that Cause Injury
336(4)
What Are Damages?
340(4)
Compensatory Damages
341(1)
Punitive Damages
342(2)
Nominal Damages
344(1)
What Barriers Can Prevent Collection of Damages?
344(3)
Statutes of Limitation
345(1)
Judgment-Proof Defendants
345(2)
Case: Randi W. v. Muroc Joint Unified School District
347(1)
Case: Debra Agis et al. v. Howard Johnson Co. et al.
348(2)
Chapter Questions and Problems
350(3)
Contracts: Enforceable Agreements
353(47)
An Overview of the Promises We Live By
355(2)
The Ever-Present Contract
355(1)
What Is the Uniform Commercial Code (UCC)?
356(1)
How Are Contracts Classified?
357(2)
Method of Expression
357(1)
Parties Bound
358(1)
Legal Effect
359(1)
Extent of Performance
359(1)
What Are the Requisites of a Valid Contract?
359(19)
Competent Parties
360(1)
Mutual Agreement
360(4)
Reciprocal Consideration
364(2)
Genuine Assent
366(4)
Legality in Formation and Execution
370(5)
Form Prescribed by Law
375(3)
Direct Involvement of Third Parties in Contracts
378(1)
Third-Party Donee and Creditor Beneficiaries
378(1)
Assignment of Contract Rights and Delegation of Duties
378(1)
How Are Contracts Discharged?
379(3)
What Remedies Are Available for Breach of Contract?
382(2)
What Special Protection Is Provided for Individual Consumer Contracts?
384(5)
Before-Sale Laws
385(1)
During-Sale Laws
386(2)
After-Sale Laws
388(1)
What Warranty Protection Do You Have as a Consumer?
389(1)
May a Seller Disclaim All Warranties That Otherwise Protect the Consumer?
390(3)
Case: Hamer v. Sidway
393(2)
Case: Lucy v. Zehmer
395(3)
Chapter Questions and Problems
398(2)
Unit 2 Application of Law to the Individual
Family Law
400(55)
Is the Federal Government Involved in Family Law?
403(1)
What Is Marriage?
404(5)
Common-Law Marriage
405(1)
The ``Marvin Marriage''
406(1)
Domestic Partnerships
407(1)
Gay Marriage
407(2)
What Are the Legal Consequences of Marriage?
409(6)
Obligation of Support
409(1)
Property Rights
410(3)
Civil Lawsuits Between Family Members
413(2)
What Laws Govern Parenthood?
415(11)
Prenatal Laws
415(2)
Paternity
417(1)
Surrogate-Mother Contracts
418(3)
Parenting by Same-Sex Couples
421(1)
Parental Rights and Liabilities
421(1)
Genetic Engineering and Family Planning: Legal Issues
422(1)
Curing Children Through Drugs and Transplants
423(1)
``Designer'' Babies in the Future?
423(2)
Cloning Babies
425(1)
State Protection of Minors
426(6)
Emancipated Minors
428(1)
Juvenile Court Protection
428(1)
Sexual Abuse of Children
429(2)
Maternal Abuse During Pregnancy
431(1)
How May Marriage Be Terminated?
432(5)
Dissolution (Divorce)
432(3)
Annulment
435(1)
``Bed and Board'' Separation, Separate Maintenance, or Legal Separation
436(1)
What Are a Spouse's Rights and Duties Upon Termination of Marriage?
437(9)
Maintenance (Alimony)
437(2)
Property Division in Equitable-Distribution States
439(3)
Property Division in Community Property States
442(1)
Child Custody
443(2)
Child Support
445(1)
How May Family Law Be Modified by Contract?
446(5)
Premarital Agreements
446(3)
Separation Agreements
449(1)
Cohabitation Agreements
449(2)
Case: Johnson v. State of Florida
451(1)
Case: In the Matter of Alison D. v. Virginia M.
452(1)
Chapter Questions and Problems
453(2)
Owning and Operating Motor Vehicles
455(46)
Owning a Motor Vehicle
457(13)
Is a Special Contract Required to Purchase a Motor Vehicle?
457(1)
Warranties for Motor Vehicles
458(3)
What Are Lemon Laws?
461(1)
What Are Automobile Leases?
462(2)
What Are Automobile Recalls?
464(1)
Product Liability
465(2)
Registration of Motor Vehicles
467(2)
When and How May an Automobile Be Repossessed?
469(1)
Driving a Motor Vehicle
470(15)
Why Must Drivers Be Licensed?
470(2)
What Standard of Care Does the Law Prescribe for Drivers?
472(1)
Must Drivers Stop at Accident Scenes?
473(1)
Does a Traffic Citation Prove Civil Liability for an Accident?
474(1)
Are Owners Liable for Negligence of Other Drivers?
475(2)
Are Drivers Liable for Injuries to Guests in Their Cars?
477(1)
Driving Under the Influence (DUI)
478(2)
Must Owners Maintain Their Vehicles in Good Repair?
480(1)
Are There Special Laws for Rented Vehicles?
481(2)
Are There Special Laws for Common Carriers?
483(1)
What Is the Financial Responsibility Law?
484(1)
Purchasing Automobile Insurance
485(8)
What Types of Automobile Insurance Are Available?
486(2)
Who Is Protected by Automobile Insurance?
488(1)
What Is the Insurance Company's Duty to the Insured?
489(1)
What Is No-Fault Insurance?
489(1)
Can Automobile Insurance Premiums Be Minimized?
490(1)
What Should You Do If Involved in an Accident?
491(2)
Other Methods of Acquiring Ownership of Personal Property
493(4)
Possession
493(1)
Production
493(1)
Gifts
493(1)
Will or Inheritance
494(1)
Accession
494(1)
Confusion
495(1)
Mislaid, Lost, and Abandoned Property
495(2)
Case: Jamison v. The Pantry, Inc.
497(2)
Chapter Questions and Problems
499(2)
Renters and Landlords
501(39)
The Conflicting Perspectives of Renters and Landlords
507(2)
What Kinds of Leases Are Available?
509(2)
Legal Requirements of a Lease
509(1)
Tenancy for Years
510(1)
Periodic Tenancy
510(1)
Tenancy at Will
511(1)
Tenancy at Sufferance
511(1)
Law and Public Policy in the Landlord-Tenant Relationship
511(3)
Legal Remedies for Landlords
514(5)
Damage and Eviction
514(3)
Security Deposits
517(2)
Legal Remedies for Tenants
519(11)
Implied Warranty of Habitability
519(4)
Landlord Negligence Causing Bodily Injury
523(5)
Assigning and Subletting
528(2)
How Can a Renter's Problems Be Minimized?
530(5)
Case: Marina Point, Ltd. v. Wolfson
535(1)
Case: New Haverford Partnership v. Stroot
535(3)
Chapter Questions and Problems
538(2)
Home Ownership
540(58)
Characteristics of Home Ownership
541(1)
Amenities
542(3)
Economics
543(2)
How Do You Find Homes Available for Sale?
545(3)
New Subdivision Homes
545(1)
Pre-Owned Subdivision Homes
545(1)
Custom Home
546(1)
Other Available Homes
546(2)
What Factors Influence Home Selection?
548(2)
Fixer-Uppers
549(1)
How Do Real Estate Agents Serve Buyers and Sellers?
550(6)
Service to Sellers
550(4)
Service to Buyers
554(2)
How Is an Offer to Purchase a Home Made?
556(2)
What Is the Effect of an Accepted Offer?
556(2)
What Are Disclosure Laws?
558(3)
How Can a Buyer Finance Purchase of a Home?
561(14)
The Promissory Note
561(1)
The Mortgage
562(1)
What If a Home Owner Defaults on Monthly Loan Payments?
563(2)
Types of Financing
565(10)
What Is Escrow?
575(3)
Closing Costs
577(1)
The Legal Significance of Close of Escrow
578(1)
What Is Title Insurance?
578(2)
Role of Attorney in Home Transactions
580(1)
How May Title to Your Home Be Held?
581(2)
Selling Your Home Yourself
583(1)
How Is a Home Taxed?
584(2)
What Is Fire Insurance?
586(1)
What Is Neighbor Law?
586(6)
Help from Local Officials
587(1)
Help from CC&Rs
587(2)
Help from Court
589(3)
Case: Stambovsky v. Ackley
592(2)
Case: Van Camp v. Bradford
594(3)
Chapter Questions and Problems
597(1)
Employee and Employer Rights and Duties
598(59)
The Changing Work Environment
599(1)
How Does the Law Affect Workers and the Workplace?
600(1)
Legal Classification of Employees
601(6)
Principal--Agent Relationship
601(2)
Employer--Ordinary Employee
603(2)
Contracting Employer--Independent Contractor
605(2)
Is There a Constitutional Right to Work?
607(1)
Laws Against Discrimination
608(19)
Types of Discrimination
609(1)
The Role of the EEOC
610(1)
Race and Color Discrimination
610(2)
National-Origin Discrimination
612(1)
Religious Discrimination
613(1)
Gender Discrimination
614(4)
Equal Pay for Equal Work
618(1)
Age Discrimination
619(2)
What Is Meant by ``Affirmative Action'' in Employment Practices?
621(2)
Americans with Disabilities Act
623(4)
What Are the Basic Duties of Employees?
627(2)
Duty to Follow Lawful Instructions
627(1)
Duty of Care
628(1)
Duty of Loyalty
629(1)
What Are the Basic Rights and Common Benefits of Employees?
629(13)
At Will and Just Cause Employment
630(3)
What Is the Minimum Wage?
633(1)
Working Conditions
634(1)
Fringe Benefits
635(1)
Retirement Benefits
635(2)
Family and Medical Leave
637(2)
Privacy Rights
639(3)
Rights Regarding Unions
642(5)
Statutes Governing Labor--Management Relations
643(4)
Arbitration of Employment Disputes
647(4)
Case: Price Waterhouse v. Hopkins
651(2)
Case: Raymond J. Gonzales v. Southwest Security and Protection Agency, Inc.
653(2)
Chapter Questions and Problems
655(2)
Wills, Trusts, and Probate
657(44)
What Is Estate Planning?
659(1)
What Tax Burdens Can the Estate Planner Reduce or Avoid?
660(1)
Taxes on Lifetime Gifts
661(1)
Matters Concerning Wills
661(11)
What Is a Will?
661(3)
How Does One Create a Valid Will?
664(4)
How Does One Revoke a Will?
668(1)
Can a Probate Court Distribute Property Contrary to the Terms of a Will
669(1)
What If the Testator Is the Victim of Undue Influence?
670(1)
What Happens to the Estate of a Person Who Dies Without Leaving a Will?
671(1)
Matters Concerning Probate
672(4)
Can Probate Be Avoided?
673(1)
What Are the Duties of an Executor?
674(2)
What Is the Uniform Probate Code?
676(1)
What Are Living Wills and Other Advance Directives?
676(3)
Does a Terminally Ill Person Have the Legal Right to Commit Suicide?
679(2)
Matters Concerning Trusts
681(2)
What Are Trusts?
681(2)
Who May Be a Trustee and What Does a Trust Cost?
683(1)
What Are the Duties of a Trustee?
683(1)
Are There Different Types of Trusts?
683(7)
Irrevocable Inter Vivos Trusts
684(1)
Revocable Inter Vivos Trusts
684(1)
What Is a Living Trust?
685(2)
Testamentary Trusts
687(1)
Marital Life Estate Trusts
687(1)
The Rule Against Perpetuities
688(1)
Taxation of Generation-Skipping Trusts
688(1)
Are There Other Uses of Trusts?
688(2)
Is Joint Tenancy an Effective Way to Avoid Probate?
690(1)
What Are Conservatorships and Guardianships?
690(1)
Principal Elements of Estate Planning
691(3)
Case: Estate of Dorothy Southworth v. North Shore Animal League
694(2)
Case: McConnell v. Beverly Enterprises-Connecticut, Inc.
696(2)
Chapter Questions and Problems
698(3)
Appendix A: Case Brief 701(4)
Appendix B: Declaration of Independence 705(3)
Appendix C: Constitution of the United States of America 708(16)
Appendix D: Legal Research 724(11)
Endnotes 735(14)
Glossary 749(52)
Index 801

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