Practical Law Outline

Transcription

1 Practical Law Outline Rights and Responsibilities in the Workplace Looking for a Job Various federal and state laws protect the rights of workers and people seeking jobs. An employer may not deny any individual a job strictly on the basis of age, race, ethnicity, gender, or disability. Employers may, however, ask about a person's employment history and criminal background and verify that a job applicant is a citizen or has authorization for employment. People between the ages of 12 and 14 may get a work permit for employment in some states, but they can be legally denied employment for legitimate concerns regarding maturity and experience. Privacy is a controversial issue in the job application process. Some believe that employers should not be able to administer drug, lie detector, personality, or psychological tests because they invade privacy and may be inaccurate. Others believe such tests are reasonable. By law, employers may not use tests that disfavor disabled persons, unless they are testing for skills that are essential to the job. On the job, employees' right to privacy can sometimes clash with an employer's need to supervise, monitor, and evaluate their performance and actions at work. Conditions on the Job Federal and state laws have been established to protect both the employee and the employer. The Fair Labor Standards Act requires that most employers pay employees at least the federal minimum wage. While some states set their own minimum wage, employees are entitled to whichever wage is higher the federal or state minimum. Certain jobs require that employees are compensated for overtime, and specific state laws regulate the weekly hours that a minor may work. Certain deductions are taken from people's paychecks. Money for federal taxes, state taxes, and Social Security a federal program that provides workers and their families with monetary benefits if they retire, become disabled, or die is taken out of each employee's paycheck. Employers may provide fringe benefits, such as health insurance, pension plans, sick leave, and vacation time, to employees for a certain fee or free of charge. A union is a group of workers that advocates and bargains with an employer for favorable working conditions on behalf of all workers in a particular profession. The Occupational Safety and Health Act (OSHA) sets standards for working conditions and safety regulations that all employers must follow. Losing a Job Many factors can contribute to the loss of a job. People who are laid off released from a job due to the company's financial trouble may be entitled to extended fringe benefits or continued pay for a certain amount of time while they are looking for a job. Each state has a compensation system to assist the unemployed. Introduction to Criminal Law General Considerations Every crime is made up of certain elements. At trial, each element of a particular crime must be proven beyond a reasonable doubt in order to convict a person. A single act can be both a criminal and a civil wrong. For example, the state can prosecute and punish the person for the crime, and the injured person can sue for damages in civil court. State and Federal Crimes Both the federal and state governments have criminal laws. Some acts can be prosecuted only in state courts while other acts can be prosecuted only in federal courts. Certain crimes that violate both state and federal law can be prosecuted in either state or federal courts. Classes of Crimes Crimes are separated into two categories based on their severity and the punishments attached to them. A felony is a crime that carries a potential prison sentence of more than one year. Felonies are usually more serious crimes. A misdemeanor is any crime that can result in a prison sentence of one year or less. Parties to Crimes The person who commits a crime is called the principal. An accomplice is the person who helps the principal commit the crime. The accomplice can be charged with the same crime as the principal. A person who helps organize the crime but is not present when it occurs is called an accessory before the fact. This person can usually be charged with the same crime as the principal. An accessory after the fact is a person who learns about a crime after it has occurred and helps the principal or accomplice to avoid capture. This person is not charged with the original crime but may be charged with harboring a fugitive or obstructing justice. Crimes of Omission Most crimes occur when a person does something that violates the law. In a few cases, however, failing to act may be a crime if the person had a legal duty to act. This type of failure to act is known as omission. Preliminary Crimes Certain actions take place before a crime is committed. These acts can be punished even if the crime is never completed. Three examples of preliminary crimes are solicitation, attempt, and conspiracy. Solicitation involves one person asking another to participate in a crime. To be convicted for attempt, the accused person must have both intended to commit a crime and have taken a "substantial step" toward committing the crime. A conspiracy is an agreement between two or more people to commit a crime. Police cannot arrest people for merely discussing a crime the people must have taken obvious steps towards completing the crime to be guilty of conspiracy. Criminal Justice Process: The Investigation The criminal justice process includes everything that happens to a person from the moment of arrest, through prosecution and conviction, to release from jail or prison. There are separate state and federal criminal justice systems. Arrest An arrest takes place when a person suspected of a crime is taken into custody. The police may have an arrest warrant, which shows that a judge agrees there is probable cause for the arrest. To show probable cause, there must be some facts that connect the person to the crime. A police officer may use as much physical force as is reasonably necessary to make an arrest. However a police officer who uses too much force or violates a citizen's rights can be sued under the federal Civil Rights Act. A police officer does not need probable cause to stop and question an individual on the street. However, the officer must have reasonable suspicion to believe the individual is involved in criminal activity. The reasonable suspicion standard does not require as much evidence as probable cause. Therefore, it is easier

2 for police to stop and question a person than it is to arrest a person. Search and Seizure The Fourth Amendment entitles each individual to be free from unreasonable searches and seizures and sets forth conditions under which search warrants may be issued. In evaluating Fourth Amendment cases, the courts seek to balance the government's need to gather evidence against an individual's right to expect privacy. Traditionally, courts have found searches and seizures of private homes reasonable only when authorized by a valid search warrant. A search warrant is a court order issued by a judge who agrees that the police have probable cause to conduct a search of a particular person or place. However, there are many circumstances in which searches may be conducted without a warrant. Even so, these searches must be reasonable under the Fourth Amendment. If a court finds that evidence was collected as the result of an unlawful search, the evidence cannot be used against the defendant at trial. In general, school officials are allowed to search students and their possessions without violating students' Fourth Amendment rights. Juvenile Justice In the United States, juveniles who are in trouble with the law are treated differently from adults. History and Overview of Juvenile Courts Reformers in the mid-1800s believed that parents' failure to teach their children proper values and respect for authority led to juvenile delinquency. Therefore, the reformers proposed a separate juvenile court system to assume parents' responsibility and discipline juvenile offenders. This separate court sought to rehabilitate, or help juveniles make better decisions, rather than punish. Today, juvenile courts generally handle three groups of juveniles delinquent offenders, or youths who have committed acts that would be crimes if adults had committed them; status offenders, or youths who have committed acts that would not be crimes if committed by adults; and neglected and abused children. Who Is a Juvenile? Almost all states set age limits to determine whether a person accused of a crime will be handled in an adult or juvenile court. In most states, young people are considered juveniles if under the age of 18. However, some states set the age limit at 16 or 17. In most states, a juvenile charged with a serious felony can be tried as an adult. Status Offenses Juveniles who are considered status offenders are generally charged with being "beyond control." Their offenses may include repeatedly running away or skipping school, being habitually disobedient, or problems with drugs and alcohol. Juvenile Justice Today The U.S. Supreme Court has ruled that juveniles charged with delinquent acts are entitled to many of the same rights as adults charged with a crime. This includes the right to be notified of the charges against them, the right to an attorney, the right to confront and cross-examine witnesses, and the right to remain silent. Juveniles, like adults, must be found guilty beyond a reasonable doubt. However, not all of the procedures used in an adult court are appropriate for juvenile courts. Criminal Justice Process: Sentencing and Corrections The final stage of the criminal justice system begins with the sentencing of a guilty defendant by either a judge or a jury. The sentence is a critical decision in the criminal justice process because it can determine the defendant's fate for years or even for life. Sentencing Options Most criminal statutes set out basic guidelines for sentencing, but judges generally have considerable say in determining the appropriate sentence for a defendant. Judges may have several options for sentencing. These options include suspending the sentence or allowing the defendant to serve the sentence at a later time; releasing the defendant to the supervision of a probation officer; and sentencing the defendant to serve his or her time at home. A judge may also issue a fine, require the defendant to pay back the victim for harm caused, or allow the defendant to work in the community during the day but return to prison at night or on weekends. The most severe sentences a judge may impose are imprisonment and death. Purposes of Punishment There are four general reasons given for punishing convicted defendants retribution, deterrence, rehabilitation, and incapacitation. Retribution is the idea that punishment should involve some form of payback ("an eye for an eye"). Deterrence is the concept that punishment will discourage others from engaging in future criminal activities. Rehabilitation is the idea that time in prison will allow the prisoner to change his or her ways and learn how to function as a productive member of society. Incapacitation removes the individual from society in order to make the community safe from the threat he or she posed. Parole Parole is the release of a convicted person from prison before his or her entire sentence has been served. Parole is a privilege granted to those convicts who seem to have reformed and appear ready to rejoin society. Capital Punishment Capital punishment, also known as the death penalty, is a highly controversial topic. The Supreme Court has upheld the constitutionality of capital punishment under certain circumstances. Corrections There are several treatment and punishment options available to the government, including halfway houses, mental facilities, and prisons. Some aspects of the correctional system also focus on preparing the prisoner to re-enter society. Housing and the Consumer Families that buy a home generally obtain a loan, called a mortgage, to help finance this large purchase. Due to the large expenses associated with buying a home, most young people choose to rent an apartment or house when they begin living on their own. Leases: A Special Kind of Contract The relationship between the person who owns a property (landlord) and the person who pays to use the property (tenant) is created by a contract called a lease. The lease usually includes the date the tenant will move in, the amount of the rent, and the length of the lease. It is important to inspect a property thoroughly and read the lease carefully before signing a rental agreement. Landlord-Tenant Negotiations Negotiating with a landlord about rent and lease terms may be hard, but this should not discourage you from trying. It is important to convince the landlord that you are a good tenant who can be trusted to pay the rent on time, prevent unnecessary damage to the property, and not be a disturbance to neighbors. The landlord, in turn, has

3 certain obligations to you as a tenant, including to treat you fairly and take responsibility for major maintenance and repairs. Homelessness: Is There a Right to Housing? Most experts agree that the leading cause of homelessness is a lack of affordable housing. Many people who need homes do not have enough money to rent or purchase one. Although the U.S. Constitution does not include a right to housing, some state constitutions have been interpreted to include such a right. Marriage Getting Married State law controls the marriage process. Couples must fulfill certain requirements before obtaining a legal marriage certificate. Marriage laws and requirements exist to ensure that couples are serious about their relationship, in an attempt to strengthen families and reduce the number of divorces. Legal Aspects of Marriage Although marriage requirements may vary from state to state, a marriage that is legal in one state is usually recognized in every other state. When a couple seeks to legally end their marriage, a divorce takes place. An annulment, on the other hand, is a court order that declares that a marriage never legally existed. Common-Law Marriage A common-law marriage is a union between two people who decide to forego the standard state marriage requirements. A couple that engages in a common-law marriage considers themselves husband and wife and lives together as a married couple. Some states require that a couple live together for a certain number of years before a legal marriage is recognized. If a couple in a common-law marriage decides to part, they must obtain a legal divorce before they may remarry. Financial Responsibilities In the past, the husband was regarded as the head of the household and the overseer of finances. Today, both spouses are regarded as equal. This means that both partners are financially responsible for the necessities of life and other purchases either spouse makes. Property Ownership When two people get married their property is divided into categories known as separate property and marital property. Separate property is all property individually owned by each spouse before the marriage. Marital property is anything that the couple acquires during their marriage that they both own. Couples have the choice to combine all of their property. State laws and separation agreements determine who gets marital property if a marriage ends. Decisions in a Marriage Getting married involves many important decisions. Some couples decide to write a prenuptial agreement before they marry that outlines each spouse's responsibilities in the marriage. The law very rarely interferes in everyday family life. Spouse Abuse Unfortunately, domestic abuse can happen to anyone in any relationship. Generally, spouse abuse is a recurring incident that can result in a cycle of serious psychological and physical damage, or even death. Counseling, support groups, legal action, and other services are available for victims of spouse abuse. Legal Issues for Single People in Nontraditional Relationships Even couples that are not married but living together are bound by certain legal responsibilities and constraints. Same-sex couples face great difficulties in obtaining the right to marry. State laws regarding civil unions vary from state to state. Separation, Divorce, and Custody Marriage Problems Married couples may encounter difficulties as a result of numerous social, economic, and personal factors. When couples are unable to resolve problems on their own, they may seek help from outside sources, such as a marriage counselor. Separation and Divorce Some couples are unable to resolve their differences and choose to either separate or divorce. When a couple separates, they remain married but live apart. Due to the many financial, legal, and emotional hardships that come with a divorce, most states require that couples seeking this option enter a period of separation. In fact, state laws play a great role as to how and under what grounds a couple can obtain a divorce. Although divorce legally ends a marriage, the two parties might still be responsible to each other financially, especially if children are involved. Child Custody Once a divorce is final, parents must decide who will have legal responsibility for the children. This is called custody. The parent who gains custody becomes the primary provider and guardian, while the other parent, the noncustodial parent, is granted visitation rights and may be responsible for some financial support. In some cases divorced parents can both remain primary guardians of their children by obtaining joint custody. If a couple is unable to agree on a custody decision, the court awards custody based on the best interest of the children. Alimony, Property Division, and Child Support The distribution of money and possessions is a highly debated topic during a divorce. Who gets the car and the house? This type of decision is called property division. The final divorce decree will also involve an agreement about support to one of the spouses alimony as well as child support. Stepparents When a divorced person marries a person with children, he or she becomes a stepparent. Stepparents are not considered parents unless they have permission from the biological parents and legally adopt the child or children. Contracts A contract is an agreement between two or more people to exchange something of value. A contract legally binds the parties to uphold their end of the bargain. A party breaches, or breaks, the contract by failing to live up to the promise. Elements of a Contract A legally binding contract must have three elements an offer, an acceptance, and an exchange of consideration. There must be an offer by one person and an acceptance by another. The offer must be made to a specific person, and that person must accept the offer on the proposing party's terms. To have a valid contract, there must also be an exchange of something of value. This item of value is called consideration. In order to be bound to a contract, the parties forming it must both be competent and aware of the conditions agreed upon. Minors and Contracts A minor is a person under the legal age of adulthood, which is 18 in most states. Minors may make contracts, but they generally cannot be legally held to their terms. For this reason, many

4 stores require minors to have an adult cosigner who will assume responsibility if the minor cannot meet the contract's terms. Even without a cosigner, however, a minor may be held to contracts involving certain necessary items, such as food or shelter. Written and Oral Contracts Most contracts may be either in writing or spoken (oral). Some contracts, however, must be in writing in order to be enforceable in court. These include contracts for the sale of land or real estate, contracts to buy or sell items that are worth $500 or more, and agreements to pay money that someone else owes. A written contract provides better evidence of the terms the parties agreed to than an oral contract. Illegal Contracts Contracts will not be enforced by the courts if they involve illegal activities. For example, if you agreed to pay $50 in exchange for an item and the seller never gives it to you, you could go to court to make the seller deliver the item as promised. However, if the item you were trying to purchase was illegal drugs, the courts would not enforce that contract. Although the law will not protect you from making a bad deal, there are some rare cases in which courts find the terms of a contract so unfair to one of the parties that they refuse to enforce them. Fraud and misrepresentation are other reasons courts may refuse to enforce a contract. Deceptive Sales Practices Door-to-Door and Telephone Sales Most sellers who telephone or go to people's homes to sell items have honest intentions to offer products and services that people need. However, there are some doorto-door and telephone salespeople who place intense pressure on people to buy items they do not really want or that may not even exist. State and federal laws give customers protection from these kinds of practices and some of the unfair deals that could result. Referral Sales A seller may tell consumers that they can save money by telling other customers to buy items from that seller. The consumer then enters into a sales contract that explains the details of this arrangement. Sellers like this practice, called a referral sale, because it gets them more business without advertising. Consumers should generally avoid this type of arrangement. Advertising and the Consumer Advertising is everywhere. Advertising is a sales tool that can educate customers about products and help the economy by encouraging people to make purchases. The First Amendment to the Constitution protects most advertising as a form of free speech. However, companies are not free to lie to consumers about their products. The government can prohibit and punish false or misleading advertising. As long as they are not misleading, certain exaggerations about a product, called puffing, are allowed even if they are not exactly true. Bait and Switch Bait and switch is a deceptive advertising practice in which the "bait" gets the customer to the store to buy a particular item, and then the seller tries to "switch" the customer to a more expensive item. Federal rules prohibit this type of practice. Mail-Order Sales Mail-order shopping is a convenient way for customers to shop from home. However, mail-order shopping can cause problems when the wrong items are sent or the products are damaged in the mail. There are federal laws that give you the right to know when your item will be shipped. Internet Commerce E-commerce refers to sales and purchases that take place over the Internet. Although it is very convenient, it is important to be careful that the information you provide on the Internet, such as a credit card number, is handled securely. Repairs and Estimates Because even the highest quality items can sometimes require repair, you should investigate the return, replacement, and repair policies before making a purchase. It is also important to do some research and ask the right questions when you bring an item to a repair shop to ensure that you are not charged for unnecessary services. Torts: A Civil Wrong The Idea of Liability Under criminal law, wrongs committed are called crimes. Under civil law, wrongs committed are called torts. In civil cases, the injured party (the plaintiff) can sue the person believed to be legally responsible for the harm (the defendant). Tort law establishes an expectation that people should act with reasonable care toward other people and their property. A defendant found responsible for injuring the plaintiff will usually be ordered to pay the plaintiff money, called damages. Damages are meant to compensate the plaintiff for any financial, physical, or emotional costs associated with the injury. The plaintiff does not always need to sue in order to receive damages. Often the two parties can meet and make an agreement or settlement on compensation for the injury. The Idea of Torts: Yesterday, Today, and Tomorrow Tort law has changed over time to reflect changes in society and its values. State courts handle most tort cases. Tort law is generally based on common law, which is created through court decisions written by judges. Tort law can also be based on written laws, known as statutes, which are passed by state legislatures. Types of Torts There are three major types of tort liability intentional wrongs, acts of negligence, and strict liability. An intentional wrong occurs when a person purposefully harms another person or his or her property. Negligence the most common unintentional tort occurs when one person unintentionally inflicts injury upon another person. Even though the injury was not intentional, the person who caused injury can still be held liable for acting carelessly and causing harm. Strict liability requires people engaged in certain dangerous activities to assume extra responsibility for the consequences of their actions. Taking Your Case to Court Tort law deals with disputes between individuals or groups of individuals. Unlike criminal law, the government is not responsible for bringing the case to court, and defendants never go to prison. While both criminal law and tort law require substantial evidence to prove the defendant is responsible, criminal cases require more convincing evidence. Although a tort and a crime are different legal actions, the same harmful activity can sometimes be both a crime and a tort. Almost anyone can be sued. Employers may be responsible for many of the torts committed by their employees, and in some states parents can be sued for torts committed by their children. Children who commit torts may be sued if it can be proven that the child acted

5 unreasonably for a person of that age. A class action suit occurs when a group of plaintiffs sues a defendant as a group. Insurance Liability insurance is an agreement in which the insured person makes regular payments to an insurance company. In return, the insurance company agrees to pay for certain damages the insured person might cause. Liability insurance protects doctors, lawyers, manufacturers, homeowners, and drivers. Although many types of insurance exist, very few insurance policies cover a person who has committed an intentional harm. The Right to Privacy Development of the Right to Privacy The right to privacy protects citizens from unreasonable government interference. Though a person's right to privacy is not directly mentioned in the Constitution, it is implied by certain constitutional amendments. The government limits a person's privacy when justified by certain government interests. State laws and constitutions, as well as federal statutes and the U.S. Constitution, contain various privacy protections. Some people argue, though, that since privacy rights are not a part of the Constitution, they should not be recognized by the courts. Privacy in the Home and at School Many people believe that a person's home deserves special privacy protection. While police need a valid search warrant to search a person's home, searches of students' lockers and desks at public schools are generally allowed by the government. Information Gathering and Privacy Individuals have fewer privacy rights regarding their finances. Once notified and approved by the court, federal law allows federal agents to obtain copies of a person's bank or credit card records. At the same time, the government must provide its citizens with access to federal records that are not protected by a privacy law. Reproductive Rights and Privacy Laws regarding abortion and reproductive rights have created controversy in the United States for many years. In the landmark case of Roe v. Wade(1973), the U.S. Supreme Court placed limits on the government's ability to regulate abortions. The abortion decision, based on the constitutional right to privacy, continues to be extremely controversial. Laws and Values Laws generally reflect people's ideas about right and wrong. However, not everything that is immoral is illegal. Laws often change over time as a society's values change. One goal of the law in democratic societies is to respect the majority's wants while protecting the rights of those who have less of a voice in the system. Human Rights Human rights are the rights that belong to people simply because they are human beings. Most countries have agreed to recognize and respect human rights by signing the Universal Declaration of Rights. The United Nations has developed a system of international treaties that protects specific human rights. Many countries also create laws aimed at protecting human rights. Our Constitution, Bill of Rights, and other state and federal laws are all influenced by a desire to protect human rights. Balancing Rights with Responsibilities Americans enjoy many individual rights, but some people argue that these rights must be balanced with social responsibilities to foster a sense of community. Kinds of Laws Law can be divided into two major categories: civil and criminal. Criminal laws regulate public conduct. In a criminal case, the government brings legal action against a person and imposes a penalty. Civil laws regulate relations between private individuals and may be enforced in a civil action by a private citizen (or group) who feels wronged. Sometimes the same act or wrong can be tried as both a civil and criminal case. However, criminal cases require a higher standard of evidence for conviction than civil cases, because the penalties are more severe. Our Constitutional Framework The United States Constitution is the highest law in the United States and the longest lasting written constitution in the world. The United States Constitution sets forth guidelines for the organization of the government, lists the government's powers and limits, and outlines the freedoms of United States citizens. The Constitution also designates that the federal government's power must be divided among three branches, each with distinct roles and checks on the other branches' power. In addition to federal power being shared among the three branches, power is also divided between the federal and state governments. Each state has its own constitution, which organizes its government and sets out the rights of its people. These constitutions, like the federal Constitution, are difficult to change, but amendment processes exist and are used when necessary.