List of Figures. Acknowledgments About the Author

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Contents List of Figures Preface Acknowledgments About the Author xxi xxiii xxvii xxix PART A LAWS AND COURTS CHAPTER 1. OUR LEGAL SYSTEM 3 1.1 Common Law versus Civil Law 4 1.1.1 Common Law 4 1.

4.2.1 The Structure of the Federal Trial Courts 11 1.4.2.2 The Structure of the Federal Circuit Courts 12 1.4.2.3 The U.S. Supreme Court 13 1.4.3 State and Local Court Systems 13 1.4.4 Subject-Matter Jurisdiction 14 1.

1 Contents List of Figures Preface Acknowledgments About the Author xxi xxiii xxvii xxix PART A LAWS AND COURTS CHAPTER 1. OUR LEGAL SYSTEM Common Law versus Civil Law Common Law Civil Law How Laws Are Made Checks and Balances Federal versus State Law The U.S. Court System Trial versus Appellate Courts The Federal Court System The Structure of the Federal Trial Courts The Structure of the Federal Circuit Courts The U.S. Supreme Court State and Local Court Systems Subject-Matter Jurisdiction Diversity Jurisdiction Administrative Agencies Rulemaking Rulemaking Process Enforcement and Adjudication 23

2 xii Contents CHAPTER 2. RESOLVING DISPUTES Settling Disputes Through Negotiations Elements of a Settlement Agreement Regulatory Environment of Dispute Resolution Civil Litigation Personal Jurisdiction Venue Personal Jurisdiction over Nonresidents Personal Jurisdiction over Out-of-State Property Standing to Sue Standing to Sue in Contract Cases Standing to Sue in Tort Cases Standing to Sue in Criminal Cases Civil Procedure Commencing Civil Litigation Complaint and Summons Defendant s Answer Cross-Claim and Third-Party Claims Pretrial Motions Motion for Default Judgment Motion to Dismiss Motion for Summary Judgment Jury Selection Opening Statements Direct Examination, Cross-Examination, and Redirect Examination Types of Evidence Hearsay Closing Arguments Jury Instructions, Jury Deliberations, and Verdict Alternative Dispute Resolution Arbitration Pros and Cons of Arbitration Other Types of Alternative Dispute Resolution Mediation Minitrials Summary Jury Trials 62

3 Contents xiii PART B CONTRACTS CHAPTER 3. CONTRACT FUNDAMENTALS Regulatory Environment of Contract Law Basic Legal Requirements of Contract Formation The Contract Parties The Writing Requirement The Parol Evidence Rule Void, Voidable, and Unenforceable Contracts Agreement Validity of Offer and Acceptance Objective Theory of Contracts Unilateral versus Bilateral Contracts Examples of Offer and Acceptance Rejection and Counteroffer Termination of Offer by Operation of Law Involuntary Assent Duress Fraud Mistake Undue Influence Express Contracts versus Implied Contracts Consideration Gift Promises Moral Obligations Illusory Promises Requirements Contracts and Output Contracts Past Consideration Preexisting Duties or Obligations Legal Capacity Minors Intoxicated Persons Mentally Incompetent Persons Corporations and Legal Capacity Lawful Purpose Contracts That Restrain Trade Exculpatory Clauses Liability Waivers Indemnification Severing Illegal Provisions from the Contract 105

4 xiv Contents CHAPTER 4. CONTRACTS AT WORK Discharge of Contract Discharge by Performance Substantial Performance Defenses to Breach of Contract Claims Discharge by Agreement Accord and Satisfaction Failure to Satisfy Conditions Novation Release Rescission Discharge by Operation of Law Bankruptcy Impossibility and Commercial Impracticability Statute of Limitations Supervening Illegality Breach of Contract Remedies Legal Remedies Compensatory Damages Other Damages Equitable Remedies Specific Performance Injunctive Relief Reformation and Quasi-Contract Other Equitable Remedies Equitable Defenses Contractual Remedies Liquidated Damages Limited Warranties Indemnification Contractual Equitable Remedies Third-Party Rights Third-Party Beneficiaries Assignment and Delegation Assignment of Rights Delegation of Duties 144

5 Contents xv PART C TORT LAW AND CRIMINAL LAW: AN INTRODUCTION TO TWO DISTINCT BUT RELATED AREAS OF LAW CHAPTER 5. TORT LAW The Intersection of Tort Law and Criminal Law Wrongful Death versus Criminal Homicide Intentional Torts Assault and Battery Defamation Trade Libel False Imprisonment Fraud Intentional Infliction of Emotional Distress Invasion of Privacy Trespass Unintentional or Negligent Torts Elements of a Negligent Tort Claim Actual Causation versus Proximate Causation Defenses to a Negligent Tort Claim Strict Liability Torts (Including Product Liability) Elements of a Product Liability Claim (Strict Liability) Types of Defects Defenses to a Product Liability Claim (Strict Liability) 169 CHAPTER 6. CRIMINAL LAW Regulatory Environment of Criminal Law Categories of Crimes Elements of a Crime Criminal Conspiracy and Criminal Intent Strict Liability Crimes Criminal Procedure Search and Seizure (Including Arrest) Warrantless Search and Seizure Indictment The Miranda Warning Extradition 185

6 xvi Contents Arraignment Plea Bargaining Criminal Trial Jury Selection Opening Statements Direct Examination, Cross-Examination, and Redirect Examination Closing Statements Jury Instructions and Deliberation The Verdict Types of Crimes Arson Assault and Battery Bribery Burglary, Robbery and Larceny Embezzlement Extortion Criminal Fraud Unjustified Homicide Racketeering 197 PART D PROPERTY CHAPTER 7. REAL PROPERTY Regulatory Environment of Real Property Types of Real Property Ownership Fee Simple Absolute Life Estate Tenancy in Common versus Joint Tenancy Tenancy by the Entirety Single- versus Multiple-Unit Properties Condominiums versus Cooperatives Acquiring Ownership in Real Property Sale and Purchase Title Deeds Mortgages Inheritance Adverse Possession 224

7 Contents xvii 7.4 Leaseholds Implied Warranty of Habitability Security Deposit Tenant s Right to Privacy The Right to Sublease The Right to Evict Hold-Over Leases Commercial Leases Easements Affirmative versus Negative Easements Appurtenant versus In Gross Easements Eminent Domain Public Purpose Just Compensation Zoning and Land Use Types of Zoning Exceptions to Zoning Laws 233 CHAPTER 8. PERSONAL PROPERTY Regulatory Environment of Tangible Personal Property Law Categories of Personal Property Sale of Goods Sale of Goods Contracts Under the UCC Offer and Acceptance UCC Gap Fillers Product Warranties Breach of Sale of Goods Contracts Impact of Non-UCC Law on Sale of Goods Contracts Personal Property Leases Bailments Types of Bailments Bailment for Mutual Benefit Bailment for Bailor s Sole Benefit Bailment for Bailee s Sole Benefit Consignment UCC Consignments 267

8 xviii Contents CHAPTER 9. INTELLECTUAL PROPERTY Trade Secrets Regulatory Environment of Trade Secrets Trade Secret Requirements Trade Secret Misappropriation Trade Secrets versus Patents Patents Types of Patents Regulatory Environment of Patents Patent Application Requirements Eligible Subject Matter for Patent Protection Novelty and Nonobviousness Priority Patent Infringement Non-practicing Entities (NPEs) Trademarks Certification Marks, Collective Marks, and Collective Membership Marks Regulatory Environment of Trademarks Trademark Requirements Trademark Infringement and Trademark Dilution Copyrights Regulatory Environment of Copyrights Copyright Requirements Copyright Infringement 299 PART E RUNNING THE BUSINESS CHAPTER 10. BUSINESS ORGANIZATIONS Regulatory Environment of Business Organizations Sole Proprietorships Setting Up and Operating a Sole Proprietorship Liability of Owner Tax Attributes General Partnerships Setting Up and Operating a General Partnership Liability of Owners Limited Liability Partnerships Tax Attributes 319

9 Contents xix 10.4 Limited Partnerships Setting Up and Operating a Limited Partnership Liability of Owners Tax Attributes Corporations Types of Corporations For-Profit versus Nonprofit Corporations Privately Held versus Publicly Listed Corporations Publicly Listed Corporations versus Public Corporations Setting Up a Corporation Key Documents Basic Corporate Finance Running a Corporation The Board of Directors Corporate Officers Duties of Care and Loyalty Liability of Owners Exceptions to Limited Liability Impact of Personal Guaranty on Limited Liability Tax Attributes Subchapter S Corporation Limited Liability Company Setting Up and Operating a Limited Liability Company Flexible Management Liability of Owners Tax Attributes 347 CHAPTER 11. FINANCING THE BUSINESS BUSINESS LOANS Regulatory Environment for Lenders and Borrowers Basic Types of Business Loans Uncommitted versus Committed Loans Term Loans Revolving Loans Cash Flow-Based Loans Asset-Based Loans Security Interests Other Types of Liens Security Interests in Real Property Security Interests in Personal Property 379

10 xx Contents Attachment of Security Interest Perfection of Security Interest Bankruptcy Regulatory Environment of Bankruptcy Participants in the Bankruptcy Process Chapter 7 versus Chapter 11 Bankruptcy Chapter 7 Bankruptcy Chapter 11 Bankruptcy 399 CHAPTER 12. AGENCY LAW AND EMPLOYMENT-RELATED LAW Agency Law Regulatory Environment of Agency Law Formation of Agency Relationships Express Agency Implied Agency Apparent Agency Agency by Ratification Agency by Operation of Law Termination of Agency Relationships Liability of Principals and Agents Liability of Principals and Agents to Each Other Contractual Liability of Principals and Agents to Third-Party Counterparties Tort Liability of Principals and Agents to Third Parties Employment-Related Laws At-Will Nature of Employment Relationship Differences Between Employees and Independent Contractors Anti-Discrimination Title VII of the Civil Rights Act of Other Anti-Discrimination Laws Affirmative Action Workplace Safety Occupational Safety and Health Workers Compensation Labor Unions The Collective Bargaining Process The Right to Strike Other Worker Laws 430 GLOSSARY 000 INDEX 000

Law of the United States

Law of the United States An Overview by Peter Hay L. Q. C. Lamar Professor of Law Emory University, Atlanta Universitatsprofessor (ret.), Dresden Third Edition C.H.BECK Bruylant, Brussels 2010 Preface