Gale Encyclopedia Of Everyday Law · Waco, TX Mary Alice Durphy Legislative Assistant Baker & Hostetler LLP Washington, DC Mark D. Engsberg International Law Librarian Lillian Goldman

Everyday LawGale Encyclopedia of

This Page Intentionally Left Blank

Everyday Law

Americans with Disabilities Actto

Family Law

VOLUME ONE

SHIRELLE PHELPS, EDITOR

Gale Encyclopedia of

Project Editor Shirelle Phelps

Editorial Brian J. Koski, Jeffrey Wilson, Ralph G. Zerbonia

Research Barbara McNeil

Editorial Systems Support Andrea Lopeman, Selwa Petrus

Editorial Standards Janet Mazefsky

Product Design Jennifer Wahi

Compositions and Electronic Capture Evi SeoudMary Beth Trimper

ManufacturingRhonda Williams

Technical Training Specialist Mark Springer

Gale Encyclopedia of Everyday Law

© 2003 by Gale. Gale is an imprint ofthe Gale Group, Inc., a division ofThomson Learning, Inc.

Gale and Design™ and Thomson Learning™are trademarks used herein under license.

For more information, contact The Gale Group, Inc.27500 Drake Rd.Farmington Hills, MI 48331-3535Or you can visit our Internet site athttp://www.gale.com

ALL RIGHTS RESERVEDNo part of this work covered by the copyrighthereon may be reproduced or used in anyform or by any means-graphic, electronic, ormechanical, including photocopying, record-ing, taping, Web distribution, or informationstorage retrieval systems-without the writtenpermission of the publisher.

This publication is a creative work fully pro-tected by all applicable copyright laws, aswell as by misappropriation, trade secret,unfair competition, and other applicablelaws. The authors and editors of this workhave added value to the underlying factualmaterial herein through one or more of thefollowing: unique and original selection,coordination, expression, arrangement, andclassification of the information.

For permission to use material from thisproduct, submit your request via Web athttp://www.gale-edit.com/permissions, or youmay download our Permissions Request formand submit your request by fax or mail to:

Permissions DepartmentThe Gale Group, Inc.27500 Drake Rd.Farmington Hills, MI 48331-3535Permission Hotline:248-699-8006 or 800-877-4253, ext. 8006Fax: 248-699-8074 or 800-762-4058

Since this page cannot legibly accomodateall copyright notices, the acknowledgmentsconstitute an extension of the copyrightnotice.

While every effort has been made to ensurethe reliability of the information presented inthis publication, The Gale Group Inc. does notguarantee the accuracy of the data containedherein. The Gale Group Inc. accepts no pay-ment for listing, and inclusion in the publica-tion of any organization, agency, institution,publication, service, or individual does notimply endorsement of the editors or publish-er. Errors brought to the attention of thepublisher and verified to the satisfaction ofthe publisher will be corrected in future edi-tions.

LIBRARY OF CONGRESS CATALOG-IN-PUBLICATION DATA

Gale encyclopedia of everyday law / Shirelle Phelps, editor. p. cm.

Includes bibliographical references and index. ISBN 0-7876-5759-X (set : hardcover : alk.paper)—ISBN 0-7876-5760-3 (v. 1)—ISBN 0-7876-5761-1 (v. 2) 1. Law–United States–Popular works. I. Phelps, Shirelle.

KF387.G27 2003 349.73—dc21

2002008407

Printed in the United States of America 10 9 8 7 6 5 4 3 2 1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .ix How to Use This Book . . . . . . . . . . . . . . . . . .ixAcknowledgments . . . . . . . . . . . . . . . . . . . . .xi Overview of the American Legal System . . . . .xiii Entries Arranged in Alphabetical Order Within

Broad Categories from: American with Disabil-ities Act to Travel . . . . . . . . . . . . . . . .1-1156

Americans with Disabilities Act Educational Accommodations . . . . . . . . . . . .1 Public Facility Accommodations . . . . . . . . . .5 Work Accommodations . . . . . . . . . . . . . . . .9

Attorneys Attorney-Client Privilege . . . . . . . . . . . . . . .13 How to Find an Attorney . . . . . . . . . . . . . .19 Malpractice . . . . . . . . . . . . . . . . . . . . . . . .25

Automobiles Accident Liability . . . . . . . . . . . . . . . . . . . .31 Buying a Car/Registration . . . . . . . . . . . . . .39 Driver’s License . . . . . . . . . . . . . . . . . . . . .45 Insurance . . . . . . . . . . . . . . . . . . . . . . . . .53 Leasing a Car . . . . . . . . . . . . . . . . . . . . . .59 Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Seat Belt Usage . . . . . . . . . . . . . . . . . . . . .71 Traffic Violations . . . . . . . . . . . . . . . . . . . .75

Banking Banking and Lending Law . . . . . . . . . . . . .81 Banks, Saving & Loans, Credit Unions . . . . .89 FDIC . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Interest Rates . . . . . . . . . . . . . . . . . . . . . . .99

Business Law Corporations . . . . . . . . . . . . . . . . . . . . . .103 Limited Liability Companies . . . . . . . . . . . .107

Partnerships . . . . . . . . . . . . . . . . . . . . . . .115 Shareholder Rights . . . . . . . . . . . . . . . . . .123

Civil Rights Affirmative Action . . . . . . . . . . . . . . . . . .131 Age Discrimination . . . . . . . . . . . . . . . . . .139 Assembly . . . . . . . . . . . . . . . . . . . . . . . .143 Children’s Rights . . . . . . . . . . . . . . . . . . .151 Firearm Laws . . . . . . . . . . . . . . . . . . . . . .155 Free Speech/Freedom of Expression . . . . .163 Racial Discrimination . . . . . . . . . . . . . . . .169 Religious Freedom . . . . . . . . . . . . . . . . . .177 Sexual Discrimination and Orientation . . . .183 Voting Rights . . . . . . . . . . . . . . . . . . . . . .189

Consumer Issues Advertising . . . . . . . . . . . . . . . . . . . . . . .197 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . .203 Contracts . . . . . . . . . . . . . . . . . . . . . . . . .207 Credit/Truth-in Lending . . . . . . . . . . . . . .215 Deceptive Trade Practices . . . . . . . . . . . . .221 Defective Products . . . . . . . . . . . . . . . . . .229 Federal Trade Commission/Regulation . . . .233 Mail-Order Purchases/Telemarketing . . . . .237 Product Safety and Consumer Protection . .243 Purchases and Returns . . . . . . . . . . . . . . .249 Recalls by Manufacturers . . . . . . . . . . . . . .255 Warranties . . . . . . . . . . . . . . . . . . . . . . . .261

Courts and Procedures Civil Procedure . . . . . . . . . . . . . . . . . . . .265 Criminal Procedure . . . . . . . . . . . . . . . . .273 Federal Courts and Jurisdictions . . . . . . . . .281 Juries . . . . . . . . . . . . . . . . . . . . . . . . . . .289 Small Claims Courts . . . . . . . . . . . . . . . . .301 State Courts and Procedures . . . . . . . . . . .307

TABLE OF CONTENTS

GALE ENCYCLOPEDIA OF EVERYDAY LAW v

Criminal Law Appeals . . . . . . . . . . . . . . . . . . . . . . . . . .313 Crimes . . . . . . . . . . . . . . . . . . . . . . . . . .317 Death Penalty . . . . . . . . . . . . . . . . . . . . .323 Double Jeopardy . . . . . . . . . . . . . . . . . . .329 Evidence . . . . . . . . . . . . . . . . . . . . . . . . .337 Fifth Amendment . . . . . . . . . . . . . . . . . . .345 Insanity Defense . . . . . . . . . . . . . . . . . . .353 Juveniles . . . . . . . . . . . . . . . . . . . . . . . . .359 Plea Bargaining . . . . . . . . . . . . . . . . . . . .365 Probation and Parole . . . . . . . . . . . . . . . .369 Right to Counsel . . . . . . . . . . . . . . . . . . .375 Search and Seizure . . . . . . . . . . . . . . . . . .381 Sentencing and Sentencing Guidelines . . . .389

Dispute Resolution Alternatives Arbitration . . . . . . . . . . . . . . . . . . . . . . . .395 Mediation . . . . . . . . . . . . . . . . . . . . . . . .403 Mini-Trials . . . . . . . . . . . . . . . . . . . . . . . .411 Negotiation . . . . . . . . . . . . . . . . . . . . . . .417

Education Administering Medicine . . . . . . . . . . . . . .423 Athletics . . . . . . . . . . . . . . . . . . . . . . . . .429 Bilingualism . . . . . . . . . . . . . . . . . . . . . .435 Codes of Conduct . . . . . . . . . . . . . . . . . .441 Competency Testing . . . . . . . . . . . . . . . . .445 Compulsory Education . . . . . . . . . . . . . . .451 Curriculum . . . . . . . . . . . . . . . . . . . . . . .459 Desegregation/Busing . . . . . . . . . . . . . . . .465 Discipline and Punishment . . . . . . . . . . . .471 Drug Testing . . . . . . . . . . . . . . . . . . . . . .477 Finance/Funding . . . . . . . . . . . . . . . . . . .483 School Prayer/Pledge of Allegiance . . . . . .487 Special Education/Disability Access . . . . . .493 Student’s Rights/Free Speech . . . . . . . . . . .501 Teacher’s Unions/Collective Bargaining . . .507 Teacher’s Rights . . . . . . . . . . . . . . . . . . . .513 Truancy . . . . . . . . . . . . . . . . . . . . . . . . .521 Types of Schools . . . . . . . . . . . . . . . . . . .527 Violence and Weapons . . . . . . . . . . . . . . .533

Estate Planning Estate and Gift Taxes . . . . . . . . . . . . . . . .539 Guardianships and Conservatorships . . . . .543 Intestacy . . . . . . . . . . . . . . . . . . . . . . . . .549 Life Insurance . . . . . . . . . . . . . . . . . . . . .555 Power of Attorney . . . . . . . . . . . . . . . . . .559 Probate and Executors . . . . . . . . . . . . . . .565 Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . .569 Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . .575

Family Law Adoption . . . . . . . . . . . . . . . . . . . . . . . . .583 Child Abuse/Child Safety/Discipline . . . . . .587

Child Support/Custody . . . . . . . . . . . . . . .591 Cohabitation . . . . . . . . . . . . . . . . . . . . . .599 Divorce/Separation/Annulment . . . . . . . . .607 Domestic Violence . . . . . . . . . . . . . . . . . .619 Emancipation . . . . . . . . . . . . . . . . . . . . . .625 Family Planning/Abortion/Birth Control . . .629 Foster Care . . . . . . . . . . . . . . . . . . . . . . .633 Gay Couples . . . . . . . . . . . . . . . . . . . . . .637 Grandparent’s Rights . . . . . . . . . . . . . . . .641 Guardianship . . . . . . . . . . . . . . . . . . . . . .649 Marriage/Marriage Age . . . . . . . . . . . . . . .653 Parent Liability Child’s Act . . . . . . . . . . . . .659 Prenuptial Agreements . . . . . . . . . . . . . . .663 Unmarried Parents . . . . . . . . . . . . . . . . . .667

First Amendment Law Libel and Slander . . . . . . . . . . . . . . . . . . .671

Healthcare Doctor-Patient Confidentiality . . . . . . . . . .675 Informed Consent . . . . . . . . . . . . . . . . . .683 Insurance . . . . . . . . . . . . . . . . . . . . . . . .687 Managed Care/HMOs . . . . . . . . . . . . . . . .693 Medicaid . . . . . . . . . . . . . . . . . . . . . . . . .701 Medical Malpractice . . . . . . . . . . . . . . . . .709 Medical Records . . . . . . . . . . . . . . . . . . . .717 Organ Donation . . . . . . . . . . . . . . . . . . . .723 Patient’s Rights . . . . . . . . . . . . . . . . . . . . .729 Treatment of Minors . . . . . . . . . . . . . . . . .737 Treatment Without Insurance . . . . . . . . . . .741

Immigration Asylum . . . . . . . . . . . . . . . . . . . . . . . . . .745 Deportation . . . . . . . . . . . . . . . . . . . . . . .749 Dual Citizenship . . . . . . . . . . . . . . . . . . .753 Eligibility for Government Services . . . . . . .757 Immigration and Naturalization Service(INS) 765 Residency/Green Cards/Naturalization . . . .769

Intellectual Property Copyright . . . . . . . . . . . . . . . . . . . . . . . .773 Patents . . . . . . . . . . . . . . . . . . . . . . . . . .777 Trademarks . . . . . . . . . . . . . . . . . . . . . . .783 Unfair Competition . . . . . . . . . . . . . . . . .789

Internet Advertising . . . . . . . . . . . . . . . . . . . . . . .795 Consumer Rights and Protection . . . . . . . .801 Free Speech . . . . . . . . . . . . . . . . . . . . . .805 Internet Crime . . . . . . . . . . . . . . . . . . . . .811 Internet Filters in Schools and Libraries . . .819 Internet Privacy . . . . . . . . . . . . . . . . . . . .825 Internet Regulation . . . . . . . . . . . . . . . . . .833 Online Business . . . . . . . . . . . . . . . . . . . .841 Pornography . . . . . . . . . . . . . . . . . . . . . .849

vi GALE ENCYCLOPEDIA OF EVERYDAY LAW

TABLE OF CONTENTS

Labor Law Benefits . . . . . . . . . . . . . . . . . . . . . . . . . .855 Discrimination . . . . . . . . . . . . . . . . . . . . .859 Drug Testing . . . . . . . . . . . . . . . . . . . . . .865 Employee’s Rights/EEOC . . . . . . . . . . . . . .871 Family and Medical Leave Act (FMLA) . . . .877 Independent Contractors/Freelancers . . . . .881 Labor Unions/Strikes . . . . . . . . . . . . . . . .885 Occupational Health and Safety . . . . . . . . .891 Privacy . . . . . . . . . . . . . . . . . . . . . . . . . .897 Sexual Harassment . . . . . . . . . . . . . . . . . .903 Unemployment Insurance/Compensation . .909 Wage and Hour Laws . . . . . . . . . . . . . . . .915 Whistleblowers . . . . . . . . . . . . . . . . . . . .919 Worker’s Compensation . . . . . . . . . . . . . .925

Real Estate Boundary/Property/Title Disputes . . . . . . .931 Buying and Selling/Mortgages . . . . . . . . . .935 Condominiums/Co-ops . . . . . . . . . . . . . . .941 Contractors/Liens . . . . . . . . . . . . . . . . . . .947 Easements . . . . . . . . . . . . . . . . . . . . . . . .955 Foreclosure . . . . . . . . . . . . . . . . . . . . . . .961 Homeowner’s Liability/Safety . . . . . . . . . . .965 Housing Discrimination . . . . . . . . . . . . . .969 Insurance (Homeowners and Renters) . . . .975 Landlord/Tenant Rights . . . . . . . . . . . . . . .983 Neighbor Relations . . . . . . . . . . . . . . . . . .995 Renters’ Liability . . . . . . . . . . . . . . . . . . . .999 Timeshares . . . . . . . . . . . . . . . . . . . . . .1003 Trespassing . . . . . . . . . . . . . . . . . . . . . .1007 Zoning . . . . . . . . . . . . . . . . . . . . . . . . .1011

Retirement and Aging Assisted Living Facilities . . . . . . . . . . . . .1015 Elder Abuse . . . . . . . . . . . . . . . . . . . . . .1023

Healthcare/Medicare . . . . . . . . . . . . . . . .1027 Nursing Homes . . . . . . . . . . . . . . . . . . .1033 Retirement Pension Plans . . . . . . . . . . . .1041 Social Security . . . . . . . . . . . . . . . . . . . .1045

Taxes Capital Gains . . . . . . . . . . . . . . . . . . . . .1053 Corporate Tax . . . . . . . . . . . . . . . . . . . .1057 Income Taxes . . . . . . . . . . . . . . . . . . . .1063 IRS Audits . . . . . . . . . . . . . . . . . . . . . . .1069 Property Taxes . . . . . . . . . . . . . . . . . . . .1077 Sales Taxes . . . . . . . . . . . . . . . . . . . . . .1083 Self Employment Taxes . . . . . . . . . . . . . .1089 Small Business Tax . . . . . . . . . . . . . . . . .1093 Tax Evasion . . . . . . . . . . . . . . . . . . . . . .1099

Telecommunications FCC Regulations . . . . . . . . . . . . . . . . . . .1105 Satellite and Cable . . . . . . . . . . . . . . . . .1111 Telephone . . . . . . . . . . . . . . . . . . . . . . .1117 Television . . . . . . . . . . . . . . . . . . . . . . .1121

Travel Children Travelling Alone . . . . . . . . . . . .1127 Hotel Liability . . . . . . . . . . . . . . . . . . . .1131 International Travel . . . . . . . . . . . . . . . . .1139 Passports and Visas . . . . . . . . . . . . . . . .1147 Safety . . . . . . . . . . . . . . . . . . . . . . . . . .1151

State and Federal Agency Contacts . . . . . .1157

Glossary . . . . . . . . . . . . . . . . . . . . . . . . . .1161

General Index . . . . . . . . . . . . . . . . . . . . .1187

GALE ENCYCLOPEDIA OF EVERYDAY LAW vii

TABLE OF CONTENTS

The Gale Encyclopedia of Everyday Law is a two-volume encyclopedia of practical information onlaws and issues affecting people’s everyday lives.Readers will turn to this work for help in answer-ing questions such as, “What is involved in estateplanning?” “Do I have any recourse to noisy neigh-bors?” and “What are the consequences of anexpired visa?” This Encyclopedia aims to educatepeople about their rights under the law, although itis not intended as a self-help or ‘do-it-yourself’legal resource. It seeks to fill the niche betweenlegal texts focusing on the theory and historybehind the law and shallower, more practicalguides to dealing with the law.

This encyclopedia, written for the layperson, isarranged alphabetically by broad subject categoriesand presents in-depth treatments of topics such asconsumer issues, education, family, immigration,real estate, and retirement. Individual entries areorganized in alphabetical order within these broadsubject categories, and include information on stateand local laws, as well as federal laws. In entrieswhere it is not possible to include state and localinformation, references direct the reader toresources for further research.

The work contains approximately 200 articles of2,000-5,000 words each, organized within 24 broadsubject categories. Each article begins with a briefdescription of the issue’s historical background,covering important statutes and cases. The body ofthe article is divided into subsections profiling thevarious U.S. federal laws and regulations concern-ing the topic. A third section details variations ofthe laws and regulations from state to state. Eacharticle closes with a comprehensive bibliography,covering print resources and web sites, and a list of

relevant national and state organizations and agen-cies.

Due to the constantly shifting landscape of theInternet, websites acknowledged by authors in thispublication may no longer operate, or may operateat a different URL. The editors are not responsiblefor obsolete or changed URLs.

How to Use This Book

This first edition of the Gale Encyclopedia ofEveryday Law has been designed with ready refer-ence in mind.

• Entries are arranged alphabetically with-in 24 broad categories. All entries arespelled-out in the Table of Contents.

• Boldfaced terms direct readers to glossaryterms, which can be found at the back of thesecond volume.

• A comprehensible Overview of theAmerican Legal System details civil andcriminal procedure; appeals; small claimscourt; in pro per representation; differencesbetween local codes and state codes; and thedifference between statutes and regulations.

• A list of State and Federal Agency Contactsgives websites that lead the user to variousstate and federal agencies and organizations,which can be found at the back of the secondvolume.

• A General Index at the back of the secondvolume, covers subject terms from throughoutthe encyclopedia, case and statute titles, per-sonal names, and geographic locations.

INTRODUCTION

GALE ENCYCLOPEDIA OF EVERYDAY LAW ix

Advisory Board

In compiling this edition, we have been fortu-nate in being able to call upon the following peo-ple, our panel of advisors who contributed to theaccuracy of the information in this premiere editionof the Gale Encyclopedia of Everyday Law. To themwe would like to express sincere appreciation:

Glen-Peter Ahlers, Sr.Associate Dean of Information ServicesBarry UniversityDwayne O. Andreas School of LawOrlando, FL

Susana Carmargo-PohlHead of Reference & Electronic ServicesRutgers Law LibraryRutgers University Law School Newark, NJ

Matthew C. CordonAssistant Professor of Law & Reference LibrarianBaylor University Law SchoolWaco, TX

Mary Alice DurphyLegislative AssistantBaker & Hostetler LLPWashington, DC

Mark D. EngsbergInternational Law LibrarianLillian Goldman Law LibraryYale Law SchoolNew Haven, CT

Jim HellerDirector of the Law Library andProfessor of LawCollege of William & MaryWilliamsburg, VA

Susanna MarlowFormer Head of Reference ServicesOhio State UniversityMoritz Law LibraryColumbus, OH

Matt MorrisonReference/Electronic Information ServicesLibrarianUniversity of KentuckyCollege of Law LibraryLexington, KY

Eric L. WelshHead of Research ServicesRegent University Law LibraryVirginia Beach, VA

Contributors

Lauren Barrow, James Cahoy, Matthew C.Cordon, Richard Cretan, J. Alicia Elster, Mark D.Engsberg, Lauri Harding, Kristy Holtfreter, SunwooKahng, Anne Kevlin, Frances Lynch, George A.Milite, Melodie Monahan, Joe Pascarella, Monica L.P. Robbers, Thomas W. Scholl, III, Scott Slick,Sherrie Voss Matthews, Eric L. Welsh

ACKNOWLEDGMENTS

GALE ENCYCLOPEDIA OF EVERYDAY LAW xi

OVERVIEW OF THE AMERICAN LEGALSYSTEM

FRAMEWORK OF GOVERNMENT IN THEUNITED STATES

Basis of the American Legal SystemThe legal system of the United States is adminis-

tered and carried on by the official branches of gov-ernment and many other authorities acting withintheir official lawmaking capacity. The original basis ofthe law in this country is the United States Constitu-tion, which lays the framework under which each ofthe different branches of government operates. TheConstitution also guarantees the basic civil rights ofthe citizens of the United States. All authority of thefederal government originates from the Constitu-tion, and the Constitution serves as the supreme lawof the land. The Constitution grants to the federalgovernment certain enumerated powers, and grantsto the states any power not specifically delegated toa branch of the federal government. Under this sys-tem, states retain significant authority and autono-my. The constitutions in each of the fifty states con-tain many similar provisions to those in the U.S.Constitution in terms of the basic structure of gov-ernment. Under the federal and state constitutions,the United States legal system consists of a system ofpowers separated among branches of government,with a system of checks and balances among thesebranches.

Legislative BranchesThe legislative branch is the primary law-making

body among the three branches, although authorityemanating from the other branches also constituteslaw. The legislative branch consists of Congress, andis subdivided into two lower houses, the House ofRepresentatives and the Senate. In addition to thepowers granted to Congress, the Constitution sets

forth specific duties of both the House and the Sen-ate. Each Congress meets for two sessions, with eachsession lasting two years. For example, the 107thCongress met in its first session in 2001, and meetsin its second session in 2002. State legislatures arestructured similarly, with the vast majority of theselegislatures consisting of two lower houses.

Judicial BranchesThe judicial branch in the federal system consists

of three levels of courts, with the Supreme Courtserving as the highest court in the land. The interme-diate courts in the federal system are the thirteenCourts of Appeals. The United States is divided bycircuits, with each circuit consisting of a number ofstates. The Fifth Circuit, for example, consists ofTexas, Mississippi, and Louisiana. Each Court of Ap-peals has jurisdiction to decide federal cases in its re-spective circuit. The trial level in the federal judicialsystem consists of the District Courts. Each state con-tains at least one district, with larger states contain-ing as many as four districts. Congress has also estab-lished a number of lower federal courts withspecialized jurisdiction, such as the bankruptcycourts and the United States Tax Court.

Most state court systems are similar to that of thefederal system, with a three-tiered system consistingof trial courts, appellate courts, and a highest court,which is also referred to as a ‘‘court of last resort.’’The names of the courts are similar from state tostate, such as superior court, court of appeals, andsupreme court. However, some states do not followthis structure. For example, in New York, the triallevel court is the Supreme Court, while the court oflast resort is the Court of Appeals. Texas, as anotherexample, has two highest courts— the Supreme

GALE ENCYCLOPEDIA OF EVERYDAY LAW xiii

Court and the Court of Criminal Appeals. In additionto the trial level courts, small claims courts or othercounty courts typically hear small claims, such asthose seeking recovery of less than $1000.

Executive BranchesThe federal Constitution vests executive power in

the President of the United States. The President alsoserves as the Commander in Chief of the ArmedForces and has the power to make treaties with othernations, with the advice and consent of the Senate.Besides those powers enumerated in Article II of theConstitution, much of the power of the executivebranch stems from the executive departments, suchas the Department of the Treasury and the Depart-ment of Justice. Congress has the constitutional au-thority to delegate power to administrative agencies,and many of these agencies fall under the executivebranch and are known as executive agencies. Con-gress also has the authority to create agencies inde-pendent of the other branches of government, calledindependent agencies. Authority emanating from ex-ecutive and independent agencies is law, and it issimilar in many ways to legislation created by legisla-tures or opinions issued by courts. State executivebranches and administrative agencies are similar tothose of their federal counterparts.

Constitutional Authority

Interpretation of the ConstitutionThe federal Constitution is not a particularly

lengthy document, and does not provide many an-swers to specific questions of law. It has, instead,been the subject of extensive interpretation since itsoriginal ratification. In the famous 1803 case of Mar-bury v. Madison, Chief Justice John Marshall wrotean opinion of the Supreme Court, which stated thatthe judicial branch was the appropriate body for in-terpreting the Constitution and determining the con-stitutionality of federal or state legislation. Accord-ingly, determining the extent of power among thethree branches of government, or determining therights of the citizens of the United States, almost al-ways requires an evaluation of federal cases, in addi-tion to a reading of the actual text of the Constitu-tion.

Powers of CongressMost of the enumerated congressional powers are

contained in section 8 of Article I of the Constitution.Many courts have been asked to review congressio-nal statutes to determine whether Congress had the

constitutional authority to enact such statutes.Among these powers, the power of Congress ‘‘to reg-ulate [c]ommerce among the several [s]tates’’ hasbeen the subject of the most litigation and outsidedebate. A number of cases during the New Deal eraunder President Franklin D. Roosevelt consideredthe breadth of this provision, which is referred to asthe Commerce Clause. After the Supreme Court de-termined that many of these statutes were unconsti-tutional, Roosevelt, after a landslide election in 1936,threatened to add additional justices to the court, inorder to provide more support for his position withrespect to the pieces of legislation passed during theNew Deal era (the reason he gave to Congress at thetime was that many of the justices were over the ageof seventy, and could no longer perform their jobfunction, but the general understanding was that hewanted justices that would approve the New Deallegislation as constitutional). The threat of this so-called ‘‘Court-packing’’ plan succeeded, and theCommerce Clause has been construed very broadlysince then. Other powers enumerated in Article I aregenerally construed broadly as well.

Civil Rights Provisions in the ConstitutionsThe main text of the Constitution does not pro-

vide rights to the citizens of the United States. Theserights are generally provided in the many amend-ments to the Constitution. The first ten amend-ments, all ratified in 1791, are called the ‘‘Bill ofRights,’’ and confer many of the cherished and fun-damental rights to the citizens of the United States.Among the rights included in the Bill of Rights arethe freedoms of speech and religion (First Amend-ment); right to keep and bear arms (Second Amend-ment); right to be free from unreasonable searchesand seizures (Fourth Amendment); right to be freefrom being compelled to testify against one’s self ina criminal trial (Fifth Amendment); right to due pro-cess of law (Fifth Amendment); right to a jury trial(Sixth Amendment); and right to be free from crueland unusual punishment (Eighth Amendment).

Between 1791 and 1865, no constitutional amend-ments were ratified that provided civil rights to citi-zens. However, at the conclusion of the Civil War andduring the reconstruction period following the war,three major amendments were added to the Consti-tution. The first was the Thirteenth Amendment, rati-fied in 1865, which finally abolished slavery and in-voluntary servitude in the United States. TheFourteenth Amendment, ratified in 1868, providedsome of the most significant rights to citizens, includ-ing the guarantee of equal protection of the laws and

OVERVIEW OF THE AMERICAN LEGAL SYSTEM

xiv GALE ENCYCLOPEDIA OF EVERYDAY LAW

prohibited denial of life, liberty, or property withoutdue process of law. The Fifteenth Amendment, rati-fied in 1870, provided that the right to vote could notbe abridged on account of race, color, or previouscondition of servitude. Fifty years later, women wereguaranteed the right to vote with the ratification ofthe Nineteenth Amendment in 1920.

Application of Constitutional AmendmentsLike other constitutional provisions, the judicial

branch is the appropriate body to interpret the Billof Rights and other amendments to the Constitution.The plain language of the amendments can causesome confusion, since some, by their own terms,they apply specifically to Congress, while other applyspecifically to states. For example, the First Amend-ment begins, ‘‘Congress shall make no law respect-ing an establishment of religion . . .’’ Similarly, theFourteenth Amendment contains a provision thatstates, ‘‘No State shall make or enforce any law whichshall abridge the privileges and immunities of the cit-izens of the United States . . .’’ Modern courts haveresolved some of these questions by ruling that theDue Process Clauses of the Fifth and FourteenthAmendments incorporate these provisions, so manyprovisions apply to both the federal and state gov-ernments, despite the language in the Constitution.

State ConstitutionsMany state constitutions are structured similarly

to the federal Constitution, except that most aremore detailed than the federal Constitution. Mostcitizens are guaranteed basic civil rights by both thefederal Constitution and their relevant state constitu-tions. For example, it is common for state constitu-tions to include provisions guaranteeing freedom ofspeech or equal protection, and most are phrasedsimilarly to the provisions in the First and FourteenthAmendments. Since the federal Constitution is thesupreme law of the land, any rights provided in it areguaranteed to all citizens and cannot be lost becausea state constitution’s provisions conflict with the cor-responding provision in the federal Constitution. Astate may provide greater rights to citizens thanthose provided in a federal counterpart, but may notremove rights guaranteed under the federal doc-trine. Section 10 of Article I of the Constitution alsoprohibits states from making certain laws or conduct-ing certain acts, such as passing an ex post facto lawor coining money.

International Treaties

Authority of TreatiesArticle VI of the Constitution provides, ‘‘This Con-

stitution, and the Laws of the United States whichshall be made in Pursuance thereof; and all Treatiesmade, or which shall be made, under the Authorityof the Untied States, shall be the supreme Law of theLand.’’ An international treaty is generally consideredto be on the same footing as a piece of legislation.If a treaty and a federal statute conflict, the one en-acted at a later date, or the one that more specificallygoverns a particular circumstance, will typically gov-ern. State legislation may not contradict provisionscontained in a treaty. Similarly, states are forbiddenfrom entering into treaties under the provisions inArticle I, Section 10.

Creation of Treaties and OtherInternational Agreements

The power to enter into treaties is vested in thePresident, though the executive must act with the ad-vice and consent of the Senate, and receive the con-currence of two-thirds of the Senate before a treatyis ratified. The various Presidents have also enteredinto executive agreements with foreign nations whenthe President has not been able to receive approvalfrom two-thirds of the Senate, or has not sought ap-proval from the Senate. While nothing in the Consti-tution permits or forbids this practice, executiveshave entered into thousands of such agreements.

Federal and State Legislation

Federal Legislative ProcessMembers of Congress have the exclusive authority

to introduce legislation to the floor of either theHouse of Representatives or Senate. Legislation is in-troduced to Congress in the form of bills. Most billscan originate either in the Senate or in the House,with the exception of bills to raise revenue, whichmust originate in the House under Article I of theConstitution. When a bill is introduced, it is designat-ed with a bill number, and these bill numbers run se-quentially through two sessions of Congress. For ex-ample, the fifty-sixth bill introduced in the Houseduring the 108th Congress will be designated as‘‘H.R. 56’’ (‘‘H.R.’’ is an abbreviation for House ofRepresentatives). Likewise, the twelfth bill intro-duced in the Senate during the same Congress willbe designated ‘‘S. 12.’’ It is not uncommon that billsare introduced in both the House and the Senate si-multaneously that address the same subject matter.


GALE ENCYCLOPEDIA OF EVERYDAY LAW xv

These bills are referred to as ‘‘companion bills,’’ andthe actual law that is passed often contains compo-nents from both the enacted bill and its companionbill. Thousands of bills are introduced in the Houseand Senate each session, and a relatively small pro-portion is actually passed into law.

After a bill has been introduced, it is sent to oneor more appropriate committees in the House orSenate. The committee or committees analyze theprovisions of the bill, including the reasoning forsuch legislation and the expected effect of the bill ifit were enacted into law. A committee conducts hear-ings, where it hears testimony from experts andother parties that can provide information relevantto the subject matter covered by a bill. A committeemay also order the preparation of an in-depth study(called a ‘‘committee print’’) that provides additionalbackground information, often in the form of statis-tics and statistical analysis. A number of additionaldocuments may also be produced during the com-mittee stage, and practically every action is docu-mented, including the production of written tran-scripts of committee hearings. A committee mayamend or rewrite a bill before it approves it, whichgenerally extends the length of time that a bill re-mains at the committee stage. The vast majority ofbills, in fact, never leave the committee stage, andthese bills are commonly said to have ‘‘died in com-mittee.’’

When a committee completes its consideration ofa bill, it reports the bill back to the floor of the Houseor Senate. A committee ordinarily accompanies thebill with a report that summarizes and analyzes eachbill’s provisions, and provides recommendations re-garding the passage of the bill. Reports, as well asother documents, are designated with unique num-bers and are made available to the public. An exam-ple of a report number is ‘‘H.R. Rep. No. 108-15,’’which indicates that it is the fifteenth report submit-ted to the House of Representatives in the 108thCongress.

Members of the houses of Congress debate thebills on the floor of the relevant house. These de-bates are transcribed, and the text of the transcrip-tion is routinely available to the public. During thisperiod, the relevant chamber may amend the bill.Once the debates and other activities are completed,the chamber votes to pass the bill. If the chamber ap-proves the bill, it is sent to the other chamber, andthe entire process is repeated. The version of the billsent to the other chamber of Congress is called the

‘‘engrossed’’ version of the bill. The other chambermust pass this version exactly as it appears in the en-grossed version, or else the bill, assuming the secondchamber passes it, is sent back to the original cham-ber for future consideration. If the House and Senatecannot agree to a single version of a bill, a confer-ence, or joint, committee may be convened, wheremembers of both chambers may compromise tocomplete a version of a bill acceptable to both cham-bers. If this conference committee is successful indoing so, the bill is returned to the House and Senatefor another vote.

Once a bill passes both the House and the Senate,it is sent to the President as an ‘‘enrolled’’ bill. ThePresident may sign the bill and make it law. If thePresident does not sign the bill, and Congress is stillin session, the bill becomes law automatically afterten days. If the President does not sign the bill, andCongress adjourns within ten days, the bill does notbecome law. The President may also reject the bill byvetoing it. Congress may override this veto with atwo-thirds majority vote in both chambers.

Types of Laws Passed by CongressLaws that apply to and are binding on the general

citizenry are called public laws. Each public law isdesignated with a public law number, and the num-bering system is similar to that of reports and otherdocuments described above. For example, PublicLaw Number 108-1 represents that this is the firstpublic law passed in the 108th Congress. Congressmay also pass laws that apply only to individual citi-zens or small classes of individuals. These laws arecalled private laws, and are usually passed in the con-text of immigration and naturalization. Private lawsare numbered identically to public laws, such as, forexample, Private Law Number 108-2, which is the sec-ond private law passed in the 108th Congress.

Congress also passes various types of resolutions,some of which do not constitute law and do not con-tain binding provisions equivalent to public laws. Asingle chamber of Congress may pass simple resolu-tions, which relate to the operations of that chamberor express the opinion of that chamber on policy is-sues. Both chambers may pass a concurrent resolu-tion, which relate to the entire operation of Con-gress, or the express opinion of the entire Congress.Neither simple nor concurrent resolutions constitutelaw, and are not submitted to the President for ap-proval. Joint resolutions, on the other hand, have thesame binding effect as bills, and must be submittedto the President for final approval. Appropriations


xvi GALE ENCYCLOPEDIA OF EVERYDAY LAW

and similar measures often enter Congress as jointresolutions. Some actions, particularly the introduc-tion of a constitutional amendment, require the useof a joint resolution, and many of these actions donot require presidential approval.

Publication of Federal LegislationPractically all documents produced by Congress

during the legislative process are published by theUnited States Government Printing Office and madeavailable to the public. Most of items produced since1995 are now also available on the Internet in elec-tronic formats. Legislation first appears in the formof a slip law, named as such because the GovernmentPrinting Office prints these on unbound slips ofpaper. At the conclusion of a session of Congress, thelaws passed during that session are compiled and ap-pear in the form of session laws, organized in chro-nological order. The official source for federal ses-sion laws is the United States Statutes at Large.

Most legislation in force in the United States is or-ganized into a subject matter arrangement and pub-lished in the United States Code. A statute containedin the United States Code is called a codified statute.The U.S. Code consists of fifty titles, with each titlerepresenting a certain area of law. For example, Title17 contains the copyright laws of the United States;Title 26 contains the Internal Revenue Code; andTitle 29 contains most of the labor laws of the UnitedStates.

Relationship Between Federal and StateLegislation

Federal legislation is superior to state legislationunder the provisions of Article VI of the U.S. Consti-tution. Thus, the courts will resolve any potentialconflicts between a state statute and a federal statuteby enforcing the federal statute. Federal superiority,however, does not mean that states are forbiddenfrom enacting legislation covering the same subjectmatter as a federal statute; it is common for both fed-eral and state legislation to govern similar areas oflaw. This is true in such areas as securities regulation,consumer protection, and labor law. Federal laborrelations laws, for example, apply specifically to pri-vate employers, but do not apply to public employ-ers. Labor relations between public employers andtheir employees are governed generally by statelabor relations laws.

If Congress wants an area of law to be governedsolely by federal legislation, Congress may include aprovision that such legislation preempts any statelaw related to the subject matter covered by the fed-

eral statute. Congress may preempt state regulationexpressly through specific statutory language, or byimplication based on the structure and purpose be-hind a federal statute. Examples of legislation thatcontain preemption provisions are the EmploymentRetirement Income Security Act of 1974, the Com-prehensive Environmental Response, Compensationand Liability Act, and the Toxic Substance ControlAct.

The Tenth Amendment to the federal Constitu-tion reserves any power not delegated to the federalgovernment to the states, or to the people. However,there have been questions among the courts andscholars regarding the extent of this amendment,and it has not generally been construed to grant anyspecial powers to the states through its enactment.Rather, it is a clause that reserves power to the stateswhere Congress has not acted, subject to some limi-tations.

Legislative Process in State LegislaturesMost state legislatures follow similar processes as

Congress. Each state legislature, with the exceptionof Nebraska, consists of two chambers. Most legisla-tures meet in regular session annually, though somemeet biannually with special called sessions held pe-riodically. In many states, the process of introducinga bill is streamlined, where only one chamber may in-troduce certain types of bills. Several states also per-mit citizens to initiate legislation, which is not possi-ble in Congress. Some states allow citizens to votedirectly on a proposed piece of legislation. Otherstates contain provisions that all citizens, once theyhave received a requisite number of signatures, mayforce the legislature to consider and vote on a partic-ular issue.

Publication of State LegislationMost states publish enacted legislation in a similar

manner as the publication of federal legislation. Lawspassed during each session of a respective legislatureare compiled as session laws, and laws currently inforce are compiled in a subject matter arrangement.In most states, laws in force are compiled accordingto a numbering system similar to the United StatesCode, with title or chapter numbers representing thesubject matter of the statute. Other states, most no-tably California and Texas, have created codes thatare named to represent the subject matter of thestatues contained in them. For example, the Califor-nia Family Code contains the family law statutes ofthat state; similarly, the Texas Finance Code containsthe statutes governing many of the financial opera-tions in that state.


GALE ENCYCLOPEDIA OF EVERYDAY LAW xvii

Bills introduced in every legislature during a cur-rent session are now available on the various legisla-tures’ Internet sites, as are the current statutes. How-ever, very little documentation from the legislativeprocess is published in a fashion to make it readilyavailable to interested members of the public. Legalresearchers interested in such information mustoften travel to their respective state capitol to obtainthis information.

Interpretation of LegislationThe language of a statute may be somewhat am-

biguous regarding their application, and the courtshave the responsibility to interpret or construe thelanguage to determine the proper application of thestatute. Courts have developed ‘‘canons of construc-tion’’ to aid in this interpretation. The most basicform of statutory construction is consideration of thetext and plain meaning of a statute. This consider-ation includes the process of defining the terms andphrases used in statute, including the use of a dictio-nary to derive the common meaning of a term.Courts will also consider the application of the stat-ute in the context of the broader statutory scheme,which can often indicate what the purpose of thestatute was when the statute was enacted.

If the plain meaning of a statute cannot be derivedfrom the statute or statutory scheme, courts maylook to the history of the legislation to determine theintent of the legislature when it enacted the statute.It is possible that Congress or a state legislature spe-cifically addressed a concern during the legislativeprocess, and members of the legislature may havemade statements indicating how the legislature in-tended for the statute to apply in a particular circum-stance. Locating this information requires a legal re-searcher to locate documentation prepared duringthe legislative process, in a process called ‘‘compil-ing’’ a legislative history.

Substantive vs. Procedural LawsMany of the laws passed by legislatures are consid-

ered ‘‘substantive’’ laws, because they create, define,and regulate legal rights and obligations. If an indi-vidual has been harmed and wants to bring litigationagainst the person or group that harmed him or her,substantive statutes often provide the law that gov-erns that situation, and also include provisions re-garding the appropriate damages that can be award-ed to the plaintiff should the plaintiff successfullyprove his or her case.

By comparison, procedural laws are those that setforth the rules used to enforce substantive laws.

These laws may dictate the steps that a litigant musttake to bring a suit to court, or may dictate the appro-priate courts where a case may be brought. Somestatutes, called statutes of limitations, also limit theamount of time in which a particular case may bebrought. Procedural laws are as important as sub-stantive laws in many respects, because a party witha valid claim may nevertheless lose a case if the prop-er procedures are not followed, or if the claim is notfiled in the time required under a statute of limita-tions.

Criminal Law vs. Civil LawCriminal laws are those designed to punish pri-

vate parties for violating the provisions contained inthese laws. Violations of these laws are crimes againstsociety, and are brought as criminal actions againstthe alleged offenders by state or federal attorneysacting on behalf of the people. All citizens of theUnited States are guaranteed rights in criminal inves-tigations and criminal trials, and law enforcement of-ficers and prosecutors must follow certain proce-dures in order to protect these rights. For thisreason, criminal procedure differs significantly fromthe procedures for bringing a civil case to court.Among the most fundamental rights is that all ac-cused individuals are presumed innocent until thestate proves them guilty beyond a reasonable doubt.This places the burden of proof in a criminal actionon the state, rather than on the defendant. Title 18of the U.S. Code contains most of the federal crimi-nal laws, while state penal codes generally containthe state criminal laws.

The term ‘‘civil law’’ has different meanings in twodistinct contexts. First, it refers to a system of lawthat differs from the common law system employedby the United States. This is discussed below. Sec-ond, it refers to a type of law that defines rights be-tween private parties, and, as such, differs from crim-inal law. Civil laws are applicable in such situationsas when two parties enter into a contract with oneanother, or when one party causes physical injury toanother party. The procedures that must be followedin a civil court case are generally less stringent thanthose in a criminal case. Some civil laws include pro-visions designed to punish wrongdoers, usually inthe form of punitive, or exemplary, damages that arepaid to the other party.

Municipal Ordinances and Other Local LawsLocal government entities are generally created by

the various states, and are typically referred to as mu-nicipalities. The powers of a municipality are limited


xviii GALE ENCYCLOPEDIA OF EVERYDAY LAW

to those granted to it by the state, usually defined inthe municipal charter that created the municipality.Charters are somewhat analogous to state constitu-tions, and usually were created by vote of the votersin the municipality. Local governing bodies may in-clude a city council, county commission, board of su-pervisors, etc., and these bodies enact ordinancesthat apply specifically to the locality governed bythese bodies. Ordinances are similar to state legisla-tive acts in their function. In many municipalities, or-dinances are organized into a subject matter arrange-ment and produced as municipal codes.

Local laws often govern everyday situations moreso than many state or federal laws. These laws in-clude many provisions for public safety, raise reve-nue through the creation and implementation ofsales and other local taxes, and govern the zoning ofthe municipality. Decisions regarding education arealso generally made through local boards of educa-tion, though these boards are entities distinct fromthe municipal government. Local laws cannot contra-dict federal or state law, including statutory or consti-tutional provisions.

Cases and Case Law in the JudicialSystems of the United States

Adversarial SystemThe judicial system in the United States is prem-

ised largely on the resolution of disputes betweenadversaries after evidence is presented on both sidesto a judge or jury during a trial. Civil cases usually in-volve the resolution of disputes between private par-ties in such areas as personal injury, breach of con-tract, property disputes, or resolution of domesticrelations disputes. Criminal cases involve the prose-cution by the state or federal government of an indi-vidual accused of violating a criminal statute. Therules and procedures that parties must follow differbetween criminal and civil trials, although similaritiesexist between the two types of rules. Some courts,such as probate courts and juvenile courts, havebeen developed to hear specific types of suits in aparticular jurisdiction. Other tribunals, such as smallclaims courts and justice of the peace courts, havealso been established to resolve minor disputes ortry cases involving alleged infractions of minorcrimes. The systems by which parties appeal deci-sions are also premised on an adversarial process.

Civil TrialsA party commences a civil trial by filing a petition

or complaint with an appropriate court. The party

bringing the suit is usually referred to as the plaintiff,though in some cases the party is referred to as thepetitioner. A petition or complaint must generallyname the parties involved, the cause of action, thelegal theories under which recovery may be appro-priate, and the relief sought from the court. Once thepetition or complaint is filed with the court, theplaintiff must serve the party or parties against whomthe action was brought. The party against whom thecase is brought is referred to as the defendant,though in some cases this party is referred to as therespondent. A defendant generally responds to a pe-tition or complaint by filing an answer admitting ordenying liability, though the filing of a pre-answermotion or motions may precede this.

A number of events occur between the time a pe-tition or complaint is filed with a court and the timeof trial. During the pretrial stage, the parties will usu-ally file a series of motions with the court, requestingthe addition or removal of a party, limits on evidencethat may be presented at trial, or the complete dis-missal of the case in its entirety. Parties also collectinformation in a process called discovery. During dis-covery, parties file interrogatories, which are writtenquestions submitted to the other party or parties;seek admissions to certain facts from the other partyor parties; and take depositions, which are oral ques-tions asked of witnesses who are under oath. Thepretrial stage is very important to the eventual reso-lution of a dispute, and many cases are settled by theparties outside of court or dismissed before the caseactually goes to trial.

When a civil case goes to trial, a judge or a jurymay try it. If a judge tries a case, he or she makes find-ings of facts and rulings of law, and the trial is usuallyreferred to as a bench trial. If a jury tries a case, thejury makes findings of facts, such as whether a con-tract existed or whether one party assaulted anotherparty. However, the judge makes rulings of law in ajury trial. A plaintiff who wants a jury to try his or hercase must usually request it as a jury demand, or elsethe case will proceed as a bench trial. Some types ofcases, such as family law cases, are never tried withjuries. If a jury is requested, the case proceeds withthe selection of jurors. During this time, a specifiednumber of jurors are selected randomly from a poolof potential jurors. Both parties are permitted toquestion the jurors in a process called voir dire, andmay ask that a certain number of jurors be removedfrom the final jury.

At the beginning of a trial, both sides give openingstatements, providing an overview of the evidence


GALE ENCYCLOPEDIA OF EVERYDAY LAW xix

that will be presented during the trial. After openingstatements, both sides present evidence by question-ing its own witnesses (called direct examination) andintroducing physical items into evidence. Each partyhas the right to cross-examine witnesses producedby the opposing party. All jurisdictions have devel-oped detailed rules of evidence that must be fol-lowed by both parties. Many of these rules governthe questions that may be asked on direct or cross-examination of witnesses. If one party enters some-thing into evidence that violates the rules of evi-dence, the other party must raise an objection to theentry of this evidence, and the judge may sustain oroverrule this objection. Some violations of the rulesof evidence may result in a mistrial, in which the en-tire trial process must be repeated because it wouldbe unfair to continue with the case. Even if the ruleviolation is not enough to cause a mistrial, a partywho may wish to appeal an adverse ruling must raiseobjections during trial to ‘‘preserve error’’ for futureconsideration by appellate courts. Appellate courtswill generally only consider points of possible errorwhen the party seeking the appeal raised an objec-tion and preserved error at the trial level.

A plaintiff generally has the burden to prove acase, and always introduces evidence before the de-fendant. Because a plaintiff has the burden of proof,a defendant is not required to introduce evidence,though the defendant will almost always do so. Afterthe defendant concludes his or her presentation ofevidence, the plaintiff may present evidence that re-buts evidence offered by the defense. Once all evi-dence has been introduced, both parties make clos-ing arguments. Closing arguments are followed byjury deliberation, in which the jury determineswhether the plaintiff or plaintiffs deserve to recover,and what amount of damages is appropriate. A juryrelies on jury instructions (or court charges) given tothem by the court, which describe the law and proce-dure that the jury must use to make its decision. Thepercentage of jurors that must be in agreement torender a decision ranges among different jurisdic-tions.

Once a jury renders a verdict, the parties may filepost-trial motions that may still affect the outcomeof the trial. These motions may include motion fornew trial, which is usually awarded if something oc-curred during the trial that rendered the process un-fair to one of the parties; or a motion for judgmentnotwithstanding the verdict (commonly referred toas ‘‘JNOV’’), where the court renders judgment forone party, though the jury decided in favor of the

other party, because the evidence presented at trialdid not support the jury’s decision. A party who wish-es to appeal an adverse decision may also file a noticeof appeal with the trial court, indicating that it wishesto appeal the ruling to an appellate court. Filing a no-tice of appeal within a certain time frame (30 days iscommon) is required in most jurisdictions in orderto appeal a case to a higher court.

Criminal TrialsState and federal prosecutors initiate criminal

cases, which involve charges that an individual has vi-olated a criminal law. In all criminal cases, the stateor federal government serves as the plaintiff, whilethe person charged is the defendant. Criminal laws,which are promulgated by the various legislatures,consist of two major types of laws: felonies and mis-demeanors. Felonies consist of the more seriouscrimes, and carry with them the most serious punish-ment. Both felonies and misdemeanors can result injail or prison time, and both will usually result in asignificant fine.

Citizens are guaranteed a number of rights in thecontext of criminal prosecution, and exercise ofthese rights is often the focus of criminal trials. TheFourth Amendment of the U.S. Constitution requiresthat law enforcement officials obtain a search war-rant, upon showing of probable cause, before con-ducting searches or seizures of individuals or theproperty of individuals. The Fifth and Sixth Amend-ments contain a number of guarantees to all citizensthat must be provided in a criminal trial. If a citizen’sconstitutional rights have been violated, the statemay be required to proceed without the introduc-tion of relevant evidence obtained illegally, or may berequired to terminate the criminal action altogether.

When a person is arrested for violation of a crimi-nal law, he or she must generally be brought beforea judge within twenty-four hours of the arrest. Thejudge must inform the individual of the chargesbrought against him or her, and set bail or other con-dition of release. After other preliminary matters, thedefendant is formally charged in one of two ways.First, the prosecutors may file a ‘‘trial information,’’which formally states the charges against the defen-dant. In more serious cases, such as murder trials, apanel of citizens will be convened as a grand jury toconsider the evidence against the defendant. A grandjury, unlike a trial jury, only determines whether suf-ficient evidence to support the criminal charge ex-ists, and will issue an indictment if evidence is suffi-cient. Either the filing of a trial information, or the


xx GALE ENCYCLOPEDIA OF EVERYDAY LAW

return of an indictment, formally begins the trial pro-cess by charging the defendant. Once the defendanthas been formally charged, he or she must appear foran arraignment, where the court reads the chargeand permits the defendant to enter a plea. The de-fendant may enter a plea of guilty or not guilty at thistime. Where it is permitted or required as a prerequi-site to an insanity defense, the defendant may entera plea of not guilty by reason of insanity. In some ju-risdictions, including federal courts, the defendantmay plead nolo contendere, or ‘‘no contest,’’ whichmeans that the defendant does not contest thecharges. Its primary effect is the same as a plea ofguilty, and its primary significance is that a plea ofnolo contendere cannot be introduced into evidencein a subsequent civil action as proof of the defen-dant’s guilt in the criminal action. Nolo contenderepleadings may usually only be entered with the per-mission of the court.

The Sixth Amendment guarantees the accused ina criminal prosecution a speedy and public trial.When a defendant enters a plea of not guilty, the trialis usually scheduled within ninety days of the filingof the trial information or indictment. The SixthAmendment also guarantees citizens accused ofcrimes the right to a jury trial, though a defendantmay waive this right and request a bench trial. Duringthe pre-trial stage, the defendant may file motionswith the court, such as those requesting exclusion ofevidence from a trial because the evidence may havebeen obtained illegally. A defendant may also engagein pretrial discovery, including requests to view evi-dence in the possession of the prosecution. Theprosecution and the defendant may engage in pleabargaining, whereby the prosecution may agree toreduce charges against the defendant in exchangefor a plea of guilty or nolo contendere.

When a case proceeds to a jury trial, the partieshave an opportunity to question prospective jurors,similar to the selection of jurors in a civil case, exceptthat the final number of jurors in a criminal trial isusually larger than the number used in a civil case.Both the state and the defendant have the opportu-nity to strike jurors from the final jury. Once the finaljury is selected and the trial begins, the prosecutionreads the indictment or trial information, reads thedefendant’s plea, and makes an opening statement.The defendant may make an opening statement im-mediately after the prosecution, or may wait to do sountil the time the defense introduces its evidence.Introduction of evidence in a criminal case is similarto that of a civil case, and the prosecution bears the

burden of proving that the defendant is guilty be-yond a reasonable doubt. Until the state proves oth-erwise, the defendant is presumed innocent. The de-fendant is not required to introduce evidence sincethe prosecution bears the burden of proof, but if thedefendant does produce evidence, the prosecutionmay present rebuttal evidence and cross-examineany witnesses. Once both sides have presented theevidence, each party may give a closing argument.

A jury in a criminal trial must return a unanimousverdict of ‘‘guilty’’ or ‘‘not guilty.’’ If a jury fails toreach a unanimous verdict, it is referred to as a‘‘hung’’ jury, and a mistrial is declared. In such a situ-ation, a new jury must retry the entire case. If the juryreturns a unanimous verdict of guilty, then the jury’sduty is usually complete, since a jury in most jurisdic-tions is not involved in the sentencing of the defen-dant. A judge, when determining an appropriate sen-tence for a convicted defendant, considers testimonyand reports from a number of different sources, suchas probation officers and victims. The federal govern-ment and many state governments have establisheddetailed sentencing guidelines that must be followedby judges in criminal cases. In addition to a sentenceof imprisonment or of a fine, a court may place a con-victed defendant on probation, meaning that the de-fendant is placed under the supervision of a localcorrectional program. A defendant must comply withspecific terms and conditions of the probation inorder to avoid time in prison or jail. Similar to proba-tion, a judge may also give the defendant a deferredjudgment, or may suspend the defendant’s sentence.In either case, the defendant is given the opportunityto remove the crime from his or her criminal recordby successfully completing a period of probation.

AppealsIf a party in a case is not satisfied with the out-

come of a trial decision, he or she may appeal thecase to a higher court for review. Not all parties havethe right to appeal, however, and parties must followproper procedures for the higher court to agree tohear the appeal. During trial, parties must ‘‘preserveerror’’ by making timely objections to violations ofthe rules of evidence and other procedural rules.After trial, the party seeking an appeal must file a no-tice of appeal with the trial court. The opposing partymay file a notice of cross-appeal if that party is notsatisfied with the final judgment from the lowercourt. The party bringing the appeal is usually re-ferred to as the appellant (though in some cases thisparty is the petitioner), and the opposing party is re-


GALE ENCYCLOPEDIA OF EVERYDAY LAW xxi

ferred to as the appellee (or respondent in somecases).

Once a party has filed a notice of appeal, both par-ties must comply with a series of rules of appellateprocedure to continue with the appeal. The appel-lant usually requests that the transcript of the trialcourt proceeding from the trial court reporter besent to the court of appeals. The appellant must alsopay a docketing or similar fee with the court of ap-peals. Both parties then file briefs with the appellatecourt stating the facts from the case, stating the legalarguments and reasons for appeal, and requesting re-lief from the appellate court. Both parties have ac-cess to the other party’s briefs submitted to thecourt. Parties also request an oral argument, whereboth sides are given the opportunity to make theirlegal arguments before the court, and answer ques-tions from the appellate court justices. Appellatecourts do not hear testimony from witnesses or con-sider evidence that was not introduced in the trial.Rather, a court of appeals reviews the trial court pro-ceeding to determine whether the trial court appliedsubstantive or procedural law to the facts of the casecorrectly. At the end of the appeal, the court willissue an opinion that states the conclusion of thecourt of appeals.

Almost all judicial systems in the United Statesconsist of three tiers, and an intermediate appellatecourt hears the first level of appeals. If a party is dis-satisfied with an intermediate court’s opinion, theparty may seek an appeal by its jurisdiction’s courtof last resort. In many cases, the decision of a courtof last resort to hear an appeal is discretionary, anda party must petition the court to hear the appeal (in-termediate appellate courts, by comparison, typicallydo not have this discretion). The United States Su-preme Court is the court of last resort for all casesin the United States, including the intermediate fed-eral courts of appeals and the highest state courts.The U.S. Supreme Court only hears cases involvingthe application of federal law, and in most cases, thedecision to grant an appeal is completely discretion-ary on the part of the Supreme Court. A party seek-ing review from the Supreme Court must file a peti-tion for writ of certiorari requesting that the Courtreview the lower court’s decision, and if the Courtgrants the writ, the Court orders the submission ofthe lower court’s case. The Supreme Court grants awrit of certiorari in a very small percentage of cases,usually when there is a controversial issue of federallaw in question in the case.

Civil appeals and criminal appeals are similar, withtwo main exceptions. First, with very few exceptions,the state may not appeal an acquittal of a criminal ina trial court case. Second, in some criminal cases, es-pecially murder cases where the defendant has re-ceived the death penalty, the right to appeal is guar-anteed and automatic.

Jurisdiction and VenueWhen a party bring a lawsuit in a court in the Unit-

ed States, the party must determine which court hasappropriate jurisdiction to hear the case, and whichcourt is the proper venue for such a suit. Jurisdictionrefers to the power of a court to hear a particularcase, and may be subdivided into two components:subject matter jurisdiction and personal jurisdiction.Venue refers to the appropriateness of a court tohear a case, and applies differently than jurisdiction.

A court has proper subject matter jurisdiction if ithas been given the power to hear a particular typeof case or controversy under constitutional or statu-tory provisions. For example, a county court of lawmay have jurisdiction to hear cases and controversieswhere the amount in controversy of the claim is lessthan $5,000. If a claimant brings a case before thecounty court with an amount in controversy of$7,500, the court lacks jurisdiction to hear the caseand will dismiss it. Subject matter jurisdiction is oftena difficult issue with respect to the jurisdiction of fed-eral courts, discussed below. Personal jurisdiction isbased on the parties or property involved in the law-suit. In personam jurisdiction refers to the power ofa court over a particular person or persons, and usu-ally applies when a party is a resident of a state or hasestablished some minimum contact with that state.In rem jurisdiction, by comparison, refers to thepower of a court over property located in a particularstate.

Venue is often confused with jurisdiction becauseit applies when determining whether a particularcourt may hear a case. A court may have jurisdictionto hear a case, but may not be the proper venue forsuch a case. Statutes often provide that proper venuein a particular case is the county or location wherethe defendant or defendants reside. Even if a courtin the county where the plaintiff resides has properjurisdiction to hear the case, it may not be the propervenue because of a provision in a statute regardingvenue.

Jurisdiction of Federal CourtsFederal courts in the United States have limited

jurisdiction to hear certain claims, based primarily on


xxii GALE ENCYCLOPEDIA OF EVERYDAY LAW

provisions in Article III of the U.S. Constitution. Fed-eral courts can hear cases involving the applicationof the Constitution, federal statutes, or treaties. Fed-eral courts may also hear cases where the amount incontroversy is more than $75,000, and all of the par-ties are citizens of different states. State courts mayalso hear cases with federal questions or where par-ties reside in different states. If a party brings a casein state court and a federal court has jurisdiction tohear the case, the opposing party may remove thecase to federal court. The federal court generally re-views each case to determine whether jurisdiction isappropriate. If federal jurisdiction is not appropriate,the court remands the case to state court.

Some suits may only be brought in federal court,such as those brought by or against the governmentof the United States. Other examples are those in-volving bankruptcy, patents, and admiralty.

Legal vs. Equitable RemediesSome remedies available from courts are consid-

ered ‘‘legal’’ remedies, while others are considered‘‘equitable’’ remedies. Legal remedies are usuallythose involving an award of monetary damages. Bycomparison, a court through use of an equitableremedy may require or prohibit certain conductfrom a party. The distinction between legal and equi-table remedies relates to the historic distinction be-tween ‘‘law’’ and ‘‘equity’’ courts that existed in En-gland as far back as the fourteenth century. Lawcourts traditionally adhered to very rigid proceduresand formalities in resolving the outcome of a legalconflict, while equity courts developed a more flexi-ble system where judges could exercise more discre-tion. This system transferred to the United States,but today, most courts in the United States may hearcases in both law and equity, although the procedureand proof required to request an equitable remedymay differ from the requirements to request a legalremedy. Examples of equitable remedies are specificperformance of a contract, reformation of a contract,injunctions, and restitution.

Procedural Rules of the CourtsIn addition to procedural laws promulgated by

legislatures, judicial systems also adopt various rulesof procedure that must be followed by the courts andparties to a case. Two main types of court rules exist.First, some rules have general applicability over allcourts in a particular jurisdiction. Examples of suchrules are rules of civil procedure, rules of appellateprocedure, rules of criminal procedure, and rules ofevidence. Second, some rules apply only to a particu-

lar court, and are referred to as local court rules.Many counties draft local court rules that apply to allcourts in those particular counties. Local court rulesare generally more specific than rules of general ap-plicability, and both must be consulted in a givencase.

Pro Se Litigants and the Right toRepresentation

A litigant representing himself or herself, withoutthe assistance of counsel, is called a pro se litigant.It is almost always advisable to seek counsel with re-spect to a legal claim, if possible. Defendants in crim-inal cases are entitled to legal representation, and alawyer will be provided to a criminal if the criminalshows indigence. Such assistance in criminal cases isusually provided by a public defender’s office. Claim-ants in civil cases, on the other hand, are not entitledto attorneys, though any of a number of legal aid so-cieties may be willing to provide legal services freeof charge. Many of these legal aid societies are subsi-dized by public agencies, and will accept a case onlyif a person meets certain criteria, usually focusing onthe income of the party.

In a civil case, a court may appoint counsel afterconsidering a number of factors, including the validi-ty of the party’s position, and the ability of the partyto try the case. A party who is indigent must usuallyfile a written motion with the court, explaining theparty’s indigence and need for counsel. An attorneywho provides free legal assistance is said to providea pro bono service. Attorneys are generally free todetermine when they will provide pro bono services,and it is common in every jurisdiction for the num-ber of litigants seeking the appointment of counselto outweigh the number of attorneys willing to pro-vide pro bono services.

If a party must continue pro se, the rules regard-ing sanctions of attorneys apply equally to this party.A party must verify the accuracy and reasonablenessof any document submitted to the court. If any sub-mission contains false, improper, or frivolous infor-mation, the party may be liable for monetary or othersanctions. Likewise, a pro se litigant may be held incontempt of court for failure to follow the directionsof a court. Many courts provide handbooks that as-sist pro se litigants in following proper trial proce-dures.

Small Claims Courts and Other LocalTribunals

Cases involving a relatively small amount in con-troversy may be brought before small claims court.


GALE ENCYCLOPEDIA OF EVERYDAY LAW xxiii

These courts exist only at the state court level. Themaximum amount in controversy for a small claimscourt is usually $1,000 for a money judgment sought,or $5,000 for the recovery of personal property,though these amounts vary among jurisdictions. Wit-nesses are sworn, as they are in any trial, but thejudge in a small claims court typically conducts thetrial in a more informal fashion than in a trial at thedistrict court level. Judges may permit the admissionof evidence in a small claims action that may not beadmissible under relevant rules of evidence or rulesof procedure. One major exception is that privilegedcommunication is usually not admissible in a smallclaims action. A small claims court usually only hasthe power to award monetary damages. If a party isunsatisfied with the judgment of the small claimscourt, the party may ordinarily appeal the case to adistrict court or other trial court.

Alternative Dispute ResolutionA variety of procedures may be available to par-

ties, which can serve as alternatives to litigation inthe court system. Alternative dispute resolution, orADR, has become rather common, because it is typi-cally less costly and does not involve the formal pro-ceedings associated with a trial. Parties usually enterinto one of two types of ADR: arbitration or media-tion. If a case is submitted to arbitration, a neutral ar-bitrator renders a decision that may be binding ornon-binding, depending on the agreement of theparties. An arbitrator serves a function analogous toa judge, though the presentation of each party’s evi-dence does not need to follow the formal rules thatmust be followed in a judicial decision. Though par-ties are generally not able to appeal an arbitrator’saward, parties may seek judicial relief if the arbitratoracts in an arbitrary or capricious manner, shows biastowards one of the parties, or makes an obvious mis-take. Arbitration may be ordered by a court, may berequired under certain laws, or may be voluntary.

Mediation is similar to arbitration because it in-volves the use of a neutral third party to resolve a dis-pute. A mediator assists the parties to identify issuesin a dispute, and makes proposals for the resolutionof the dispute or disputes. However, unlike arbitra-tors, a mediator does not have the power to makea binding decision in a case. Also unlike arbitrators,a mediator typically meets with each of the interest-ed parties in private to hold confidential discussions.Mediation may be court-ordered, may be requiredunder certain laws, or may be voluntary. A numberof organizations, including state bar associations,offer mediation services.

A number of other forms of ADR exist. For exam-ple, parties may employ the use of a fact finder, whoresolves factual disputes between two parties. Insome jurisdictions, parties may be required to sub-mit a dispute to early neutral evaluation, where aneutral evaluator provides an assessment of thestrengths and weaknesses of each party’s position.

Case Law in the Common Law SystemCases play a very important part in the legal sys-

tem of the United States, not only because courts ad-judicate the claims of parties before them, but alsobecause courts establish precedent that must be fol-lowed in future cases. The United States adopted thecommon law tradition of England as the basis for itslegal system. Under the common law system, legalprinciples were handed down from previous genera-tions, first on an unwritten basis, then through thedecisions of the courts. Though legislatures possessconstitutional power to make law, in a common lawsystem there is no presumption that legislation ap-plies to every legal problem in the area addressed bythe legislation. This differs from the legal systemsbased on the civil law tradition derived from Romanlaw (the use of the term civil law also refers to non-criminal laws, as discussed below, and the two usesof the term are distinct). In a civil law system, legisla-tures develop codes that are presumed to apply toall situations relevant to the code, and courts are em-ployed only to adjudicate claims. The only state inthe United States that does not consider itself a‘‘common law state’’ is Louisiana, which adopted thecivil law tradition based on its roots in French law.Accordingly, the codes (legislation) in that state aresomewhat different than those in other states.

Courts in the United States follow the doctrine ofprecedent, which was also adopted from the Englishcommon law system. Under this doctrine, courts notonly adjudicate the claims of the parties before them,but also establish a precedent that must be followedin future cases. The ruling of a court binds not onlyitself for future cases, but also any courts underwhich the court has appellate jurisdiction. Thoughtrial level courts make rulings of law that are bindingon future cases, the doctrine of precedent is mostimportant in the legal system at the appellate levels.

Publication of Case LawUnlike statutes, cases are usually not available in

a subject matter arrangement. When a case is firstpublished, it is issued as a ‘‘slip opinion,’’ named assuch because these are printed on unbound sheetsof paper. These opinions are compiled, and eventu-


xxiv GALE ENCYCLOPEDIA OF EVERYDAY LAW

ally published in bound case reporters. Cases fromthe U.S. Supreme Court and from courts in many ju-risdictions are contained in reporters published bygovernment bodies, and are called official reporters.These cases and other cases are also published in theNational Reporter System, originally created by WestPublishing Company (now West Group) in 1879.Case reporters in this system include state cases, fed-eral cases, and cases from specialized tribunals, suchas the bankruptcy courts. Cases may be readily locat-ed by finding their citation in the National ReporterSystem, or in another case reporter. An example ofsuch a citation is ‘‘Roe v. Wade, 93 S. Ct. 705 (1973).’’‘‘Roe v. Wade’’ refers to the names of the parties ofthe case; ‘‘93’’ refers to the volume of the reporter;‘‘S. Ct.’’ is an abbreviation for Supreme Court Report-er; ‘‘705’’ refers to the page in the reporter where thecase begins; and ‘‘(1973)’’ refers to year the case wasdecided.

Cases from all three levels of the federal judicialsystem are published. With few exceptions, only ap-pellate court opinions from state courts are pub-lished. Unlike appellate courts, state trial judges sel-dom issue formal legal opinions about their cases,although rulings of law may be available in the recordof the trial court. Most legal research in case law fo-cuses on location of appellate court decisions.

Reading a Judicial OpinionLike other types of law, reading and understand-

ing the meaning of a judicial opinion is more of anart than a science. The opinion of the case includesthe court’s reasoning in deciding a case, and is bind-ing on future courts only if a majority of the court de-ciding the case joins the opinion (in which case theopinion is called the majority opinion). If an opinionis written in support of the court’s judgment, but isnot joined by a majority of justices, then the opinionis termed a plurality. Plurality opinions are not bind-ing on future courts, but may be highly persuasivesince they support the judgment of the court. Somejustices may agree with the judgment, but may notagree with the majority opinion. These justices maywrite concurring opinions that state their reasons insupport of the judgment. These opinions have noprecedential value, but may be persuasive in futurecases. Similarly, justices who disagree with the judg-ment, the opinion, or both, write dissenting opinionsthat argue against the judgment or majority opinion.

Some components of a majority opinion are bind-ing on future courts, while others are not. The actualholding or reason for deciding (traditionally referred

to as the ratio decidendi) provides the rule of lawthat is binding precedent in future cases. By compari-son, dictum is the portion of an opinion that is notessential to a court’s holding, and is not binding onfuture courts. Dicta may include background infor-mation about the holding, or may include the judge’spersonal comments about the reasoning for theholding. Dicta may be highly persuasive and mayalter the holdings of future cases.

Administrative Law and Procedure

Creation and Empowerment of GovernmentAgencies

Although the branches of government are primar-ily responsible for the development of law and reso-lution of disputes, much of the responsibility of theadministration of government has been delegated togovernment agencies. While branches of govern-ment may not delegate essential government func-tions to agencies, agencies may administer govern-ment programs, and promulgate and enforceregulations. When a legislature creates a governmentagency, it does so through the passage of an enablingstatute, which also describes the specific powers del-egated to the agency. The Administrative ProcedureAct (APA) governs agency action at the federal level,and state counterparts to the APA govern state agen-cies.

Types of Government AgenciesSome government agencies are formed to carry

out government programs, but do not promulgateregulations that carry the force of law. A number ofthese agencies have been established to administersuch programs as highway construction, education,public housing, and similar functions. Other govern-ment agencies promulgate rules and regulations thatgovern a particular area of law. Examples of regulato-ry agencies include the Environmental ProtectionAgency and Nuclear Regulatory Commission, both ofwhich promulgate regulations that are similar infunction to legislation. Legislatures also create agen-cies that resolve dispute among parties, similar to thefunction of a judicial body. Agency decisions are usu-ally referred to as agency adjudications. Examples ofagencies that adjudicate claims are the NationalLabor Relations Board and Securities and ExchangeCommission.

Agency RulemakingMost agencies that have regulatory power promul-

gate regulations through a process called notice andcomment rulemaking. Before a regulatory agency


GALE ENCYCLOPEDIA OF EVERYDAY LAW xxv

can promulgate a rule, it must provide notice to thepublic. Federal agencies provide notice in the Feder-al Register, a daily government publication that pro-vides the text of proposed and final agency rules.After considering comments from the public andmaking additional considerations, the agency mayissue a final, binding rule. The promulgation of a finalrule can take months, or may take years, to com-plete. State agencies must follow similar procedures,including publication of proposed rules in a publica-tion analogous to the Federal Register. Agency rulesare functionally equivalent to statutes. Federal agen-cy rules currently in force are published in a subjectmatter arrangement in the Code of Federal Regula-tions. Each state publishes its rules in force in a stateadministrative code.

Some agencies at the state and federal levels arerequired to follow more formal procedures. Agenciesmay not exceed the power delegated by a respectivelegislature, and may adopt rules without followingthe proper procedures provided in the enabling leg-islation or legislation governing administrative pro-cedures.

Agency AdjudicationsAgencies with power to adjudicate claims operate

similarly to a court. Such an agency considers evi-dence presented in a hearing, and makes a final,binding decision based on an application of the lawto the facts in a case. An agency that adjudicates aclaim must maintain a record of the hearing, and par-ties are generally able to seek judicial review of a de-cision, much like judicial review of a lower court de-cision. A court may overrule an agency decision if theagency acted in an arbitrary or capricious manner,made a decision unsupported by substantial evi-dence, or made a decision unsupported by the factspresented to the agency.

Relationship Among Various Laws andOther Authority

Laws in the United States do not exist in a vacuum,and determining the appropriate outcome of a casemay require consultation with several different typesof laws. A single case may be governed by applicationof a statute, an administrative regulation, and casesinterpreting the statute and regulation. Understand-ing the application of laws usually requires an under-standing of the nature of legal authority.

Any authority emanating from an official govern-ment entity acting in its lawmaking capacity is re-ferred to as prima

Documents

Gale Encyclopedia Of Everyday Law · Waco, TX Mary Alice Durphy Legislative Assistant Baker & Hostetler LLP Washington, DC Mark D. Engsberg International Law Librarian Lillian Goldman