Introduction to Law, 7th Edition
By Beth Walston-Dunham and John D. DeLeo
By Beth Walston-Dunham and John D. DeLeo
Contents
TABLE
OF CASES | xv
PREFACE | xvii
ACKNOWLEDGMENTS | xxi
OF CASES | xv
PREFACE | xvii
ACKNOWLEDGMENTS | xxi
1 CHAPTER 2
THE HISTORICAL BASIS AND CURRENT STRUCTURE
OF THE AMERICAN LEGAL SYSTEM
THE HISTORICAL BASIS OF AMERICAN LAW | 3
Before the Government | 3
The Results of the Revolution | 5
The Influence of Political Theories | 10
Balance as the Key to Success | 11
THE MODERN LEGAL SYSTEM | 13
The Sources of Law | 13
The Hierarchy of Law | 19
Exception to the Rule of Hierarchy | 20
THE HISTORICAL BASIS AND CURRENT STRUCTURE
OF THE AMERICAN LEGAL SYSTEM
THE HISTORICAL BASIS OF AMERICAN LAW | 3
Before the Government | 3
The Results of the Revolution | 5
The Influence of Political Theories | 10
Balance as the Key to Success | 11
THE MODERN LEGAL SYSTEM | 13
The Sources of Law | 13
The Hierarchy of Law | 19
Exception to the Rule of Hierarchy | 20
2 CHAPTER 24
THE COURTS
THE PURPOSE AND EFFECT OF JUDICIAL LAW | 25
Characteristics of Judicial Law | 26
Clarification of the Law | 27
Protection of the Law | 31
THE STRUCTURE OF THE JUDICIAL SYSTEM | 32
Trial versus Appellate Courts | 32
The Federal Court System | 33
The U.S. District Courts | 34
Special Federal Courts | 34
The U.S. Courts of Appeals | 35
The U.S. Supreme Court | 36
THE STATE COURT SYSTEM | 37
THE PROCESS OF LEGAL ANALYSIS | 39
Legal Analysis of Case Law (Judicial Opinions) | 41
The Facts | 43
The Legal Issue | 44
The Law | 45
The Rule | 46
Statutory and Administrative Analysis | 52
Application of Legal Analysis | 54
THE COURTS
THE PURPOSE AND EFFECT OF JUDICIAL LAW | 25
Characteristics of Judicial Law | 26
Clarification of the Law | 27
Protection of the Law | 31
THE STRUCTURE OF THE JUDICIAL SYSTEM | 32
Trial versus Appellate Courts | 32
The Federal Court System | 33
The U.S. District Courts | 34
Special Federal Courts | 34
The U.S. Courts of Appeals | 35
The U.S. Supreme Court | 36
THE STATE COURT SYSTEM | 37
THE PROCESS OF LEGAL ANALYSIS | 39
Legal Analysis of Case Law (Judicial Opinions) | 41
The Facts | 43
The Legal Issue | 44
The Law | 45
The Rule | 46
Statutory and Administrative Analysis | 52
Application of Legal Analysis | 54
3 CHAPTER 58
LEGISLATION
THE LEGISLATIVE BRANCH | 59
THE PURPOSE OF LEGISLATION | 61
THE LEGISLATIVE PROCESS | 65
The Path from Concept to Law | 65
Constitutional Amendments | 67
The Function of Lobbyists | 67
Public Hearings and Sessions | 67
Publication of Legislation | 68
LEGISLATION AND JUDICIAL REVIEW | 69
LEGISLATION
THE LEGISLATIVE BRANCH | 59
THE PURPOSE OF LEGISLATION | 61
THE LEGISLATIVE PROCESS | 65
The Path from Concept to Law | 65
Constitutional Amendments | 67
The Function of Lobbyists | 67
Public Hearings and Sessions | 67
Publication of Legislation | 68
LEGISLATION AND JUDICIAL REVIEW | 69
4 CHAPTER 76
THE EXECUTIVE BRANCH AND ADMINISTRATIVE AUTHORITY
THE EXECUTIVE BRANCH | 77
Changes in the Electoral Process | 78
Powers and Authority of the President | 84
The Role of the President, Then and Now | 85
ADMINISTRATIVE AGENCIES | 86
The Role of the Administrative Agency | 86
The Creation of an Administrative Agency | 88
The Delegation Doctrine | 90
Agencies Today | 91
The Operation of an Administrative Agency | 91
Authority of Administrative Agencies | 100
THE EXECUTIVE BRANCH AND ADMINISTRATIVE AUTHORITY
THE EXECUTIVE BRANCH | 77
Changes in the Electoral Process | 78
Powers and Authority of the President | 84
The Role of the President, Then and Now | 85
ADMINISTRATIVE AGENCIES | 86
The Role of the Administrative Agency | 86
The Creation of an Administrative Agency | 88
The Delegation Doctrine | 90
Agencies Today | 91
The Operation of an Administrative Agency | 91
Authority of Administrative Agencies | 100
5 CHAPTER 108
SUBSTANTIVE AND PROCEDURAL ISSUES
SUBSTANTIVE AND PROCEDURAL ISSUES | 109
The Difference between Civil and Criminal Law | 109
SUBSTANTIVE VERSUS PROCEDURAL LAW | 111
Substantive Law | 111
Procedural Law | 112
The Common Ground | 113
THE CREATION AND APPLICATION OF CIVIL PROCEDURE LAW | 115
Creating Laws of Procedure | 115
Types of Procedural Law | 115
RULES OF CIVIL PROCEDURE 116
Pretrial Proceedings | 116
Stages of Trial | 135
Rules of Evidence | 142
Rules of Appellate Procedure | 145
Appellate Procedure | 146
SUBSTANTIVE AND PROCEDURAL ISSUES
SUBSTANTIVE AND PROCEDURAL ISSUES | 109
The Difference between Civil and Criminal Law | 109
SUBSTANTIVE VERSUS PROCEDURAL LAW | 111
Substantive Law | 111
Procedural Law | 112
The Common Ground | 113
THE CREATION AND APPLICATION OF CIVIL PROCEDURE LAW | 115
Creating Laws of Procedure | 115
Types of Procedural Law | 115
RULES OF CIVIL PROCEDURE 116
Pretrial Proceedings | 116
Stages of Trial | 135
Rules of Evidence | 142
Rules of Appellate Procedure | 145
Appellate Procedure | 146
6 CHAPTER 152
JURISDICTION
TYPES OF JURISDICTION | 155
Subject Matter Jurisdiction | 155
Jurisdiction in Personam (Personal Jurisdiction) | 158
In Rem and Quasi in Rem Jurisdictions | 165
FEDERAL JURISDICTION | 167
Federal Question | 167
The United States as a Party | 169
Diversity of Citizenship | 169
Removal and Remand | 171
OTHER JURISDICTIONAL CONSIDERATIONS | 173
Corporations | 173
Venue | 176
Forum Non Conveniens | 177
ESTABLISHING JURISDICTION | 178
7CHAPTER 182
THE LEGAL PROFESSIONAL
WHO ARE TODAY’S LEGAL PROFESSIONALS? | 183
Judges | 184
Lawyers | 187
Paralegals | 196
Law Office Administrators | 199
Support Personnel | 199
Quasi-Legal Professionals | 201
THE NEWEST PROFESSIONAL IN THE LEGAL ARENA: THE PARALEGAL | 201
The Paralegal as a Member of the Legal Team | 201
Development of the Paralegal Profession | 203
Current Defining Standards of Competence | 208
8CHAPTER 216
THE LAW OF ETHICS
HOW LAW AND ETHICS INTERRELATE | 218
Legal Ethics and Their Impact on Professionals | 218
Ethical Standards | 219
Ethical Canons and Rules | 226
Competency | 227
Confidentiality | 232
Conflict of Interest | 233
Commitment to Zealous Representation | 243
THE RESULT OF ETHICAL VIOLATIONS | 250
9CHAPTER 254
TORTS
WHAT IS A TORT? | 259
THE DEVELOPMENT OF TORT LAW | 260
Trespass and Trespass on the Case | 260
Liability of Parties | 261
Increase in Tort Claims | 261
TERMINOLOGY IN TORTS | 262
NEGLIGENCE | 263
The Concept of Duty | 263
Range of Possible Injury | 264
Degree of Duty | 267
The Standard of Care | 268
Proximate Cause | 269
Damage | 270
Res Ipsa Loquitur | 273
STRICT LIABILITY | 280
INTENTIONAL TORTS | 298
Assault | 303
Battery | 303
False Imprisonment | 303
Trespass | 307
Fraud | 307
Defamation | 308
Emotional Distress | 309
Special Damages Awarded for Intentional Torts | 309
PRODUCT LIABILITY | 310
Causes of Action | 310
Defenses | 310
Statute of Limitations | 311
EMPLOYMENT AND TORTS | 318
Employer–Employee Relationship | 318
Statutes Governing the Employment Relationships Involved in Tort Actions | 319
Employer Liability Laws | 320
Discrimination Issues | 321
MEDICAL MALPRACTICE | 322
EFFECTS OF ELECTRONIC COMMUNICATIONS ON MODERN TORT LAW | 323
TORT DEFENSES | 326
Contributory and Comparative Negligence | 326
Assumption of Risk | 326
Last Clear Chance | 327
Intentional Tort Defenses | 327
DAMAGES IN TORT ACTIONS | 329
10CHAPTER 334
FAMILY LAW
MARRIAGE AND ANNULMENT | 336
Antenuptial (Prenuptial) Agreements | 337
Requirements for Marriage | 340
Annulment | 341
Common Law Marriage | 342
The Marriage Relationship | 343
Effects of Tort and Criminal Law on Domestic Relations | 343
ENDING THE MARITAL RELATIONSHIP | 346
Jurisdiction | 346
Grounds for Dissolution of a Marriage | 347
Legal Separation | 348
Temporary Orders | 348
CUSTODY | 349
Who Gets Custody? | 351
Joint Custody | 351
Enforcement of Custody Orders | 352
CHILD SUPPORT | 363
Child-Support Guidelines | 363
Modification of Support | 364
Failure to Pay | 364
VISITATION | 367
PROPERTY AND DEBT DIVISION | 367
Separate Property | 367
Community Property | 368
Pensions and Employee Benefit Programs | 368
Marital Debts | 368
MAINTENANCE (ALIMONY OR SPOUSAL SUPPORT) | 372
NONTRADITIONAL MARITAL RELATIONSHIPS | 374
REPRODUCTIVE LAW | 383
Paternity | 384
Adoption | 385
Fertility and Surrogacy | 389
11CHAPTER 404
ESTATES AND PROBATE
WHAT IS PROBATE AND ESTATE LAW? | 406
THE FUNCTION OF THE PROBATE COURTS | 407
INTESTATE SUCCESSION | 409
TESTATE SUCCESSION | 415
Requirements of a Valid Will | 415
Will Codicils and Will Revocation | 417
Will Contests | 423
PROBATE OF ESTATES | 427
12CHAPTER 434
PROPERTY LAW
REAL PROPERTY | 436
Freehold Estates | 436
Types of Ownership between Multiple Parties | 438
Air and Subsurface Rights | 444
Incorporeal Interests | 444
Buyers’ and Sellers’ Rights | 448
Adverse Possession | 454
Rights and Duties of Ownership | 457
Condominiums | 458
Nonfreehold Estates | 460
Fixtures | 468
PERSONAL PROPERTY | 469
Bailment | 469
Lost and Mislaid Property | 471
Abandoned Property | 471
Confused Property | 471
Actions to Recover Property or Its Value | 471
INTELLECTUAL PROPERTY | 473
13CHAPTER 478
THE LAW OF CONTRACTS
ELEMENTS OF A VALID CONTRACT | 480
At Least Two Parties | 480
Parties Who Have Legal Capacity | 480
Manifestation of Assent by All Parties | 483
Consideration That Supports a Legal and Enforceable Promise | 495
THIRD-PARTY INVOLVEMENT IN CONTRACTS | 496
Third-Party Contracts | 496
Assignment and Delegation | 496
PROBLEMS IN CREATING OR ENFORCING THE CONTRACT | 501
Terms of the Contract | 501
Unconscionable Contracts | 502
Fraud in Contracts | 502
Statute of Frauds | 504
DEFENSES TO AN ALLEGATION OF BREACH OF CONTRACT | 504
REMEDIES FOR BREACH OF CONTRACT | 506
14CHAPTER 516
THE LAW OF BUSINESS
AGENCY | 518
Creation of the Agency Relationship | 519
Agent’s Duties | 519
Principal’s Duties | 520
Types of Authority | 520
Respondeat Superior | 525
SOLE PROPRIETORSHIPS | 530
PARTNERSHIPS | 531
The Nature of Partnerships | 531
Characteristics of a Partnership | 531
Limited Partnerships | 532
The Relationship of Partners | 532
Partnership Property | 533
The Life of a Partnership | 534
Partnership Dealings with Third Parties | 534
Termination or Dissolution | 541
CORPORATIONS | 542
Corporate Characteristics | 542
Creating a Corporation | 543
Types of Corporate Status | 545
Personal Corporations, Close Corporations, and Limited Liability Companies | 546
Piercing the Corporate Veil | 546
Corporate Stock | 555
The Corporate Existence | 556
Voting by Shareholders | 557
Rights of Shareholders | 558
Corporate Actions | 559
Dissolution of the Corporation | 559
Bankruptcy | 560
NEGOTIABLE INSTRUMENTS | 562
15CHAPTER 568
CRIMINAL LAW
DEFINITIONS AND CATEGORIES OF CRIME | 570
Categories of Crime | 570
Definition of Crime and the Elements of Criminal Conduct | 570
PARTIES TO CRIME | 577
Principal in the First Degree | 577
Principal in the Second Degree | 577
Accessory before the Fact | 577
Accessory after the Fact | 577
Parties to Crime under the Model Penal Code | 578
ELEMENTS OF SERIOUS CRIMES | 579
Inchoate Offenses | 579
Miscellaneous Offenses | 582
Felony Crimes | 588
Electronic Media and Crime | 592
PUNISHMENT | 593
WHITE-COLLAR CRIME | 594
DEFENSES TO CHARGES OF CRIMINAL CONDUCT | 597
Common Defenses | 597
The Insanity Defense | 598
16CHAPTER 604
CRIMINAL PROCEDURE
CRIMINAL PROCEDURE AND THE CONSTITUTION | 606
The Approach of the U.S. Supreme Court | 606
The Fourteenth Amendment: Due Process | 606
The Fourth Amendment: Search and Seizure | 608
The Fifth Amendment: Double Jeopardy and Self-Incrimination | 623
The Sixth Amendment: Speedy Trial, Impartial Jury, and Confrontation | 636
The Eighth Amendment: Bail and Cruel and Unusual Punishment | 638
STAGES OF CRIMINAL PROCEDURE | 647
Pre-Arrest | 648
Arrest and Interrogation | 649
Bail | 650
Preliminary Hearing and Arraignment | 651
Trial, Appeal, and Sentencing | 653
APPENDICES 659
APPENDIX Important Resources | 659
Glossary | 661
INDEX | 665
JURISDICTION
TYPES OF JURISDICTION | 155
Subject Matter Jurisdiction | 155
Jurisdiction in Personam (Personal Jurisdiction) | 158
In Rem and Quasi in Rem Jurisdictions | 165
FEDERAL JURISDICTION | 167
Federal Question | 167
The United States as a Party | 169
Diversity of Citizenship | 169
Removal and Remand | 171
OTHER JURISDICTIONAL CONSIDERATIONS | 173
Corporations | 173
Venue | 176
Forum Non Conveniens | 177
ESTABLISHING JURISDICTION | 178
7CHAPTER 182
THE LEGAL PROFESSIONAL
WHO ARE TODAY’S LEGAL PROFESSIONALS? | 183
Judges | 184
Lawyers | 187
Paralegals | 196
Law Office Administrators | 199
Support Personnel | 199
Quasi-Legal Professionals | 201
THE NEWEST PROFESSIONAL IN THE LEGAL ARENA: THE PARALEGAL | 201
The Paralegal as a Member of the Legal Team | 201
Development of the Paralegal Profession | 203
Current Defining Standards of Competence | 208
8CHAPTER 216
THE LAW OF ETHICS
HOW LAW AND ETHICS INTERRELATE | 218
Legal Ethics and Their Impact on Professionals | 218
Ethical Standards | 219
Ethical Canons and Rules | 226
Competency | 227
Confidentiality | 232
Conflict of Interest | 233
Commitment to Zealous Representation | 243
THE RESULT OF ETHICAL VIOLATIONS | 250
9CHAPTER 254
TORTS
WHAT IS A TORT? | 259
THE DEVELOPMENT OF TORT LAW | 260
Trespass and Trespass on the Case | 260
Liability of Parties | 261
Increase in Tort Claims | 261
TERMINOLOGY IN TORTS | 262
NEGLIGENCE | 263
The Concept of Duty | 263
Range of Possible Injury | 264
Degree of Duty | 267
The Standard of Care | 268
Proximate Cause | 269
Damage | 270
Res Ipsa Loquitur | 273
STRICT LIABILITY | 280
INTENTIONAL TORTS | 298
Assault | 303
Battery | 303
False Imprisonment | 303
Trespass | 307
Fraud | 307
Defamation | 308
Emotional Distress | 309
Special Damages Awarded for Intentional Torts | 309
PRODUCT LIABILITY | 310
Causes of Action | 310
Defenses | 310
Statute of Limitations | 311
EMPLOYMENT AND TORTS | 318
Employer–Employee Relationship | 318
Statutes Governing the Employment Relationships Involved in Tort Actions | 319
Employer Liability Laws | 320
Discrimination Issues | 321
MEDICAL MALPRACTICE | 322
EFFECTS OF ELECTRONIC COMMUNICATIONS ON MODERN TORT LAW | 323
TORT DEFENSES | 326
Contributory and Comparative Negligence | 326
Assumption of Risk | 326
Last Clear Chance | 327
Intentional Tort Defenses | 327
DAMAGES IN TORT ACTIONS | 329
10CHAPTER 334
FAMILY LAW
MARRIAGE AND ANNULMENT | 336
Antenuptial (Prenuptial) Agreements | 337
Requirements for Marriage | 340
Annulment | 341
Common Law Marriage | 342
The Marriage Relationship | 343
Effects of Tort and Criminal Law on Domestic Relations | 343
ENDING THE MARITAL RELATIONSHIP | 346
Jurisdiction | 346
Grounds for Dissolution of a Marriage | 347
Legal Separation | 348
Temporary Orders | 348
CUSTODY | 349
Who Gets Custody? | 351
Joint Custody | 351
Enforcement of Custody Orders | 352
CHILD SUPPORT | 363
Child-Support Guidelines | 363
Modification of Support | 364
Failure to Pay | 364
VISITATION | 367
PROPERTY AND DEBT DIVISION | 367
Separate Property | 367
Community Property | 368
Pensions and Employee Benefit Programs | 368
Marital Debts | 368
MAINTENANCE (ALIMONY OR SPOUSAL SUPPORT) | 372
NONTRADITIONAL MARITAL RELATIONSHIPS | 374
REPRODUCTIVE LAW | 383
Paternity | 384
Adoption | 385
Fertility and Surrogacy | 389
11CHAPTER 404
ESTATES AND PROBATE
WHAT IS PROBATE AND ESTATE LAW? | 406
THE FUNCTION OF THE PROBATE COURTS | 407
INTESTATE SUCCESSION | 409
TESTATE SUCCESSION | 415
Requirements of a Valid Will | 415
Will Codicils and Will Revocation | 417
Will Contests | 423
PROBATE OF ESTATES | 427
12CHAPTER 434
PROPERTY LAW
REAL PROPERTY | 436
Freehold Estates | 436
Types of Ownership between Multiple Parties | 438
Air and Subsurface Rights | 444
Incorporeal Interests | 444
Buyers’ and Sellers’ Rights | 448
Adverse Possession | 454
Rights and Duties of Ownership | 457
Condominiums | 458
Nonfreehold Estates | 460
Fixtures | 468
PERSONAL PROPERTY | 469
Bailment | 469
Lost and Mislaid Property | 471
Abandoned Property | 471
Confused Property | 471
Actions to Recover Property or Its Value | 471
INTELLECTUAL PROPERTY | 473
13CHAPTER 478
THE LAW OF CONTRACTS
ELEMENTS OF A VALID CONTRACT | 480
At Least Two Parties | 480
Parties Who Have Legal Capacity | 480
Manifestation of Assent by All Parties | 483
Consideration That Supports a Legal and Enforceable Promise | 495
THIRD-PARTY INVOLVEMENT IN CONTRACTS | 496
Third-Party Contracts | 496
Assignment and Delegation | 496
PROBLEMS IN CREATING OR ENFORCING THE CONTRACT | 501
Terms of the Contract | 501
Unconscionable Contracts | 502
Fraud in Contracts | 502
Statute of Frauds | 504
DEFENSES TO AN ALLEGATION OF BREACH OF CONTRACT | 504
REMEDIES FOR BREACH OF CONTRACT | 506
14CHAPTER 516
THE LAW OF BUSINESS
AGENCY | 518
Creation of the Agency Relationship | 519
Agent’s Duties | 519
Principal’s Duties | 520
Types of Authority | 520
Respondeat Superior | 525
SOLE PROPRIETORSHIPS | 530
PARTNERSHIPS | 531
The Nature of Partnerships | 531
Characteristics of a Partnership | 531
Limited Partnerships | 532
The Relationship of Partners | 532
Partnership Property | 533
The Life of a Partnership | 534
Partnership Dealings with Third Parties | 534
Termination or Dissolution | 541
CORPORATIONS | 542
Corporate Characteristics | 542
Creating a Corporation | 543
Types of Corporate Status | 545
Personal Corporations, Close Corporations, and Limited Liability Companies | 546
Piercing the Corporate Veil | 546
Corporate Stock | 555
The Corporate Existence | 556
Voting by Shareholders | 557
Rights of Shareholders | 558
Corporate Actions | 559
Dissolution of the Corporation | 559
Bankruptcy | 560
NEGOTIABLE INSTRUMENTS | 562
15CHAPTER 568
CRIMINAL LAW
DEFINITIONS AND CATEGORIES OF CRIME | 570
Categories of Crime | 570
Definition of Crime and the Elements of Criminal Conduct | 570
PARTIES TO CRIME | 577
Principal in the First Degree | 577
Principal in the Second Degree | 577
Accessory before the Fact | 577
Accessory after the Fact | 577
Parties to Crime under the Model Penal Code | 578
ELEMENTS OF SERIOUS CRIMES | 579
Inchoate Offenses | 579
Miscellaneous Offenses | 582
Felony Crimes | 588
Electronic Media and Crime | 592
PUNISHMENT | 593
WHITE-COLLAR CRIME | 594
DEFENSES TO CHARGES OF CRIMINAL CONDUCT | 597
Common Defenses | 597
The Insanity Defense | 598
16CHAPTER 604
CRIMINAL PROCEDURE
CRIMINAL PROCEDURE AND THE CONSTITUTION | 606
The Approach of the U.S. Supreme Court | 606
The Fourteenth Amendment: Due Process | 606
The Fourth Amendment: Search and Seizure | 608
The Fifth Amendment: Double Jeopardy and Self-Incrimination | 623
The Sixth Amendment: Speedy Trial, Impartial Jury, and Confrontation | 636
The Eighth Amendment: Bail and Cruel and Unusual Punishment | 638
STAGES OF CRIMINAL PROCEDURE | 647
Pre-Arrest | 648
Arrest and Interrogation | 649
Bail | 650
Preliminary Hearing and Arraignment | 651
Trial, Appeal, and Sentencing | 653
APPENDICES 659
APPENDIX Important Resources | 659
Glossary | 661
INDEX | 665