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Understanding the Law

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

Understanding the Law

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

ISBN 13:
9780324126716
ISBN 10:
0324126719
Edition: 4th
Format: Hardcover
Copyright: 07/25/2003
Publisher: 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.

Preface

xiii

Acknowledgments

xiv

Unit 1 The Legal System and Basic Principles of Law

Introduction to Law

(44)

Legal/Societal Relationships over Time: 1900s vs. 2000s

(4)

What Is the Outlook for the Legal System in the Twenty-First Century?

(1)

The English Source of U.S. Law

(6)

Modern Common Law and Stare Decisis

(3)

Modern Sources of U.S. Law

(5)

Lawmaking by Legislators

(2)

Lawmaking by the Executive Branch

(1)

Lawmaking by Courts

(2)

Lawmaking by the People

(1)

Types and Classifications of Law

(5)

Federal and State Law

(1)

Civil and Criminal Law

(1)

Private and Public Law

(1)

International and Domestic Law

(1)

Procedural and Substantive Law

(2)

Subject Matter Classification

(1)

The Relationship Between Law and Ethics

(11)

What Are Ethics?

(1)

Why Study Ethics?

(2)

The Nature of Ethical Inquiry

(1)

The Object of Ethics

(1)

Ethical Standards

(5)

Moral Reasoning

(2)

Distinguishing Between Laws and Moral Values

(1)

Using Court Cases

(5)

Federal Court Decisions

(1)

State Court Decisions

(2)

Reading Court Cases

(2)

Case: Eric J. v. Betty M.

(2)

Chapter Questions and Problems

(2)

Our Constitution

(49)

What Is Constitutionalism?

(2)

What Is Constitutional Law?

(2)

What Is Judicial Review?

(1)

What Is Separation of Powers?

(1)

How Is the National Government Organized?

(6)

Legislative Branch (Congress)

(2)

Executive Branch (Presidency)

(1)

Judicial Branch (Courts)

(3)

What Is Federalism?

(1)

What Constitutional Powers Belong to Citizens?

(1)

The Police Power

(1)

What Is the Supremacy Clause?

(1)

What About Taxes?

(2)

What Is the Commerce Clause?

(2)

What Is the Bill of Rights?

(2)

Incorporation Doctrine

(1)

The First Amendment---and Free Speech

(6)

Is Commercial Speech Protected?

(1)

Is Symbolic Speech Protected? Even ``Hate Speech''?

(2)

Free Speech and the Internet

(2)

The First Amendment---and Freedom of Religion

(3)

Establishment Clause

(1)

Free Exercise Clause

(1)

Could Guns Be Banned?

(1)

Freedom from Unreasonable Searches

(1)

Rights of an Accused to Due Process of Law

(2)

Equal Protection of the Law in Education

(3)

Affirmative Action in Education

(1)

Right to Privacy

(2)

Due Process and Equal Protection and Medical Testing

(2)

Case: Thomas et al. v. Chicago Park District

(1)

Case: Bush v. Gore

(3)

Chapter Questions and Problems

(2)

The Court System

(48)

What Is a Court?

(1)

What Is a Trial Court?

(2)

What Is an Appellate Court?

(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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Understanding the Law

Understanding the Law

9780324126716

0324126719

Summary

Table of Contents

Supplemental Materials

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Amazon no longer offers textbook rentals. We do!

Understanding the Law

Understanding the Law

9780324126716

0324126719

Summary

Table of Contents

Supplemental Materials

Write a Review

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