Fundamentals of American Law

by Morrison, Alan B.; Brennan, William J.

• ISBN13: 9780198764052
• ISBN10: 0198764057
• Format: Paperback
• Copyright: 1996-10-10
• Publisher: Oxford University Press

Summary

The American legal system today is the most significant in the world, yet until the publication of Fundamentals of American Law, there has been no book that provides both the basic rules on the theoretical understanding necessary to comprehend. This book is not simply the work of a singleauthor, but a collection of especially written essays, each by an expert in the field, all of whom are on the faculty of New York University School of Law, which is recognized as one of the elite law schools in America and which offers this book as an element of its unique Global Law SchoolProgramme.The book is written specifically for foreign lawyers and law students who have a need to deal with American Law generally, but are not seeking to become specialists in any one area. For them, it is vital to understand the basic principles of a wide range of American legal fields so they can act asinformed intermediaries between their public or private clients and their American counterparts. The book not only provides the reader with a solid foundation in American law, but will also serve as a basic reference book for the fundamentals, even as some of the details change over the years.Although initially conceived to fill a void for foreign lawyers, the book is also ideally suited for others who have a significant need to understand the basic principles of American Law and to interact with American lawyers. For this reason it will be an ideal course text for students of business,accountancy, political science, or public administration, where the enquiring student will constantly find intersections with the law.The book is more than a compendium of legal principles. Each chapter explains not only what the law is, but why it is that way. It sets forth the policy considerations in institutional factors that produce a particular law so the reader can make an independent judgement about its wisdom and perhapsits adaptibility to other cultures.

Author Biography

Alan Morrison has served as professor at both Harvard Law School and New York University Law School. He is currently a Senior Attorney for the Public Citizen Litigation Group in Washington, DC, which he co-founded with Ralph Nader.

Table of Contents

Preface	p. v
List of Contributors	p. xxv
Foreword	p. xxvii
Table of Cases	p. xxxiii
Table of Legislation	p. liii
Introduction	p. 1
General Principles	p. 7
Common Law Systems	p. 9
Introduction	p. 9
The Reception of the Common Law in America	p. 12
The Growth of Legislation and Regulation	p. 14
The Continued Vitality of the Common Law	p. 15
Precedent and the Growth of the Law	p. 18
The Institutions and Method of the Common Law	p. 21
Interpretation of Statutes	p. 23
The Future of the Common Law	p. 25
The Sources and Limits of Legal Authority	p. 27
Introduction: Federalism and Separation of Powers	p. 27
The Basic Allocation of State Federal Authority	p. 28
Protection from the Burdens of Multi-State Legal Authority	p. 36
The Distinct Character of Separation of Powers Issues in the United States	p. 41
The Robust Constitutional Judiciary	p. 52
Conclusion	p. 56
Courts	p. 57
Introduction	p. 57
Methods of Selecting Judges	p. 57
Division of Judicial Workload	p. 58
Parallel Systems of Adjudication	p. 60
Litigation	p. 61
Starting a Lawsuit	p. 62
Responses to the Complaint	p. 64
Multi-Party Actions	p. 67
Discovery	p. 70
Summary Judgment	p. 73
Trial	p. 75
Appeals	p. 79
Conclusion	p. 81
An Overview of the Bill of Rights	p. 83
Introduction	p. 83
The First Amendment: The Founders' Ideal Commonwealth	p. 86
The Fourth Through Eighth Amendments: Control of the Law Enforcement Function	p. 104
The Ninth and Tenth Amendments: the Enigma of the Closing Amendments	p. 112
The Thirteenth, Fourteenth, and Fifteenth Amendments: Equality and the Second Bill of Rights	p. 115
Conclusion	p. 127
Administrative Law	p. 129
Administrative Agencies	p. 130
Independent Agencies and Separation of Powers	p. 132
Delegation	p. 133
Administrative Procedure	p. 136
Judicial Review	p. 143
Freedom of Information	p. 148
The American Legal Profession	p. 151
A Statistical Portrait	p. 151
Entering the Profession	p. 152
Regulating the Profession	p. 154
Malpractice and Related Claims	p. 157
Court Sanctions	p. 159
Right to Counsel	p. 160
Conflicts of Interest	p. 161
Confidentiality	p. 164
Adversary Justice	p. 166
Legal Fees	p. 168
Lawyers Employed by Corporations	p. 170
Marketing Legal Services	p. 171
The Judiciary	p. 173
The Future: More Competition	p. 175
Conflict of Laws	p. 177
Personal Jurisdiction	p. 178
Choice of Law	p. 184
Judgments Enforcement	p. 193
Conclusion	p. 196
State Based Laws	p. 199
Contract Law	p. 201
Introduction	p. 201
Sources of Obligation	p. 204
Contract Formation	p. 207
Identifying the Contract	p. 213
Defenses Against Enforcement	p. 217
Performance	p. 223
Remedies for Breach of Contract	p. 228
Torts	p. 239
Negligence	p. 241
Negligence Principles Applied to Some Common Activities	p. 252
Intentional Torts	p. 257
Strict Products Liability	p. 259
Conclusion	p. 261
Property	p. 263
The Nature of Ownership in America	p. 264
Taxation of Real Property	p. 266
The Power of Eminent Domain	p. 268
Government Regulation of Land	p. 270
The Ultimate Protection of Property Rights	p. 291
Criminal Law, Criminal Procedure, and Criminal Justice	p. 293
Overview of the Systems	p. 293
Substantive Criminal Law	p. 295
Criminal Procedure	p. 305
Corporations and Other Business Organizations	p. 331
Forms of Business Association	p. 331
The Process of Formation	p. 334
Raising of Capital	p. 338
Control Structure--Stockholders	p. 342
Control Structure--Directors and Officers	p. 346
Fiduciary Obligations and Standard of Care	p. 350
Corporate Distributions	p. 353
Major Corporate Changes	p. 356
Conclusion	p. 363
Commercial Law	p. 365
Introduction	p. 365
The Uniform Commercial Code	p. 369
The Common Law of Suretyship and Guaranty	p. 391
Special Treatment of Consumer Transactions	p. 394
Family Law	p. 397
Introduction	p. 397
Constitutional Principles of Family Law--The Relationship of the Family and the State	p. 399
'Public Family Law'--Child Protection, Foster Care, Termination of Parental Rights, and Adoption	p. 403
Private Family Law--Marriage, Separation, Divorce, and Related Matters	p. 413
Conclusion	p. 424
Federal Law	p. 425
Antitrust Law	p. 427
Overview: Antitrust Statutes and Enforcement	p. 427
Monopolization	p. 433
Mergers	p. 439
Horizontal Agreements	p. 444
Distribution Restraints	p. 450
Conclusion	p. 457
Bankruptcy and Other Insolvency Remedies	p. 459
Introduction	p. 459
Some General Considerations	p. 462
Introduction to Chapter 11	p. 464
The Plan of Reorganization	p. 473
Discharge	p. 478
Environmental Law	p. 481
The Origins of Contemporary Environmental Law	p. 482
The Subjects of Environmental Law and Regulation	p. 486
Distinctive Elements of United States Environmental Law	p. 491
Current Topics in United States Environmental Law	p. 501
Conclusion	p. 506
Intellectual Property Law	p. 507
Introduction to Intellectual Property	p. 507
Sources of Intellectual Property Law	p. 510
Patent Law	p. 513
Copyright Law	p. 521
Trademark Law	p. 528
Labor and Employment Law	p. 535
Rationales for and Structure of Employment Regulation	p. 535
Substantive Employment Protections	p. 539
Employment Discrimination Law	p. 543
Union Organization and Collective Bargaining Law	p. 552
Conclusion	p. 561
Regulation of Banks	p. 563
Introduction	p. 563
Policy Overview	p. 564
The Allocation of Regulatory Responsibility	p. 566
The Chartering Process	p. 568
Regulation of the Bank's Business	p. 569
Regulation of Banks' Affiliates	p. 576
International Banking	p. 577
Examinations and Enforcement	p. 579
Bank Failures	p. 580
Conclusion	p. 582
Federal Regulation of Securities	p. 583
Introduction to the United States Securities Markets	p. 583
The Systems of Regulation	p. 586
Federal Regulation of Companies Under the 1933 and 1934 Acts	p. 591
Antifraud Liability for Reporting Companies	p. 600
Insider Trading: A Species of Antifraud Liability	p. 606
Conclusion	p. 608
Taxation	p. 611
Overview of the United States Tax System	p. 611
Sources of the Law	p. 612
General Framework for Taxing 'Citizens' and 'Aliens'	p. 613
Federal Income Taxation of United States Individuals	p. 614
Federal Taxation of United States Corporations	p. 626
Federal Taxation of United States Partnerships	p. 632
Federal Taxation of Other Flow Through Entities	p. 635
Taxation of United States Persons with Foreign Income	p. 637
Taxation of United States Corporations with Foreign Income	p. 639
Anti-abuse Rules	p. 640
Taxation of Foreign Persons with United States Income	p. 642
Federal Estate and Gift Taxes	p. 645
Index	p. 647
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