Understanding the Law

by Carper, Donald L.; West, Bill W.

• ISBN13: 9780324126716
• ISBN10: 0324126719
• Edition: 4th
• Format: Hardcover
• Copyright: 2003-07-25
• Publisher: South-Western College/West

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