EveryBody's Guide to the Law

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judges need not always follow outdated laws. But even when a law is clearly out-of-date and sorely in need of change, there are still some limitations on a judge’s ability to change it. As noted earlier, a judge can’t modify or limit a law passed by a legislature (a statute) unless it is unconstitutional, in which case the judge must declare it null and void. Judge-made law (common law and case law) can be changed more easily, but there are still restrictions. A judge of a lower court (discussed below) is bound to follow an earlier ruling of a higher court, even if that ruling was made over one hundred years ago and is clearly out of step with modern times. For instance, a superior or district court judge cannot overturn a previous decision of an appellate court, nor can an appellate court change a law made by that state’s Supreme Court, regardless of how obsolete and unfair that law has become. Since it is the highest court in the land, only the United States Supreme Court can change a law that it makes. How often does the Supreme Court reverse itself? Not very often. And when it does, the reversal usually involves a practice that the Supreme Court upheld during the first century of this country’s existence but that should now be banned because of the changes in society. Consider this example: At one time, the Supreme Court ruled that it was constitutional for a school district to provide separate schools for blacks and other minorities, so long as the schools afforded an “equal” education. But in the 1954 case of Brown v. Board of Education, the Supreme Court held that racial segregation in public elementary schools was unconstitutional, because it violated the fourteenth amendment guarantee of equal protection under the law. Declaring, “separate educational facilities are inherently unequal,” the Supreme Court reversed a string of previous decisions permitting separate treatment of minorities. Reversals by the United States Supreme Court of its previous decisions generally occur after one or two of the justices, who are appointed for life, die or retire from the bench, and the president (with the advice and consent of the Senate) selects new justices who have opposing philosophies from the retired or deceased justices. For example, suppose the Supreme Court has a general split of 5–4, with the majority voting liberal most of the time. If one or two of them die or retire and the president is a conservative, supported by a conservative Senate, the president will appoint new justices who share his or her conservative views and will be confirmed by the Senate. Then, instead of a 5–4 split in favor of a liberal majority, there will now be a 5–4 or even a 6–3 split in favor of a conservative majority. ARE THERE TOO MANY LAWS? To get an idea of how many laws there are, just visit any good law library. There you will find several floors filled with rows upon rows of bookcases bursting at the seams with books containing statutes, cases, treatises on the law, law reviews, regulations, and more. Some people claim that we have far more laws than we need and that we are being “lawed” or regulated to Laws, the Courts, and You 605
death. Things would be much simpler, they say, if only we had the same number of laws that we had, say, a hundred years ago. How valid are these complaints? It is true that we have many more laws than ever before. And every day new laws are being added. But the number of laws simply reflects how complex our society has become. The more advanced the society, the more rules there will be to regulate conduct. That is the nature of the beast. Technological breakthroughs have led to many laws and regulations that have contributed to a safer society, particularly in the area of consumer protection. Other laws are necessary to protect interests that didn’t even exist fifty years ago. For instance, before computers were invented we didn’t need laws that dealt with hacking, piracy, computer viruses, the Internet, and so forth. Similarly, ten years ago we didn’t need laws regulating the cloning of animals, even human beings. So long as society continues to grow in new directions, the law will grow with it to cover our rights and obligations in new situations. WHERE TO FIND THE LAW When you have a problem and want to find out what the law is on the issue, where can you look? Your nearby public library contains some law books: city and county ordinances, for instance, and possibly a set of your state’s code books as well. General public libraries usually have some self-help books written for the layperson that may cover your area of concern. A public law library usually is located in or near the main county courthouse. Law libraries also are found in law schools. How practical is it for you, a nonlawyer, to research the law effectively? Realistically speaking, outside of finding local ordinances, zoning regulations, and the like, not very practical at all. Finding the law that applies to your case can be an arduous task. Law students receive indepth instruction on how to use a law library, and it still takes them several months before they are able to use the law library effectively and efficiently. You certainly can’t expect to find your way around a law library in only an hour or two. There’s much more to it than just knowing which section contains which books. And even if you manage to figure out where the books with the law applicable to your case are, you’ll ordinarily have a tough time making heads or tails out of the information. Legal decisions and law books are written in legalese, an obscure language all its own, with myriad citations and references that seem designed to confound a layperson. It’s like reading the schematic drawings and technical information for a computer: Once you have the drawings and specifications, you’re not going to make much sense of them if you don’t have a computer technology background. 606 Everybody’s Guide to the Law
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eVeRYBODY’S GuIDe TO THe Fully Up
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Disclaimer Introduction viii In Mem
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Laid Off ❉ COBRA Benefits ❉ Who
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INTRODUCTION wHEN MELVIN BELLI and
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ook in favor of plain English. And
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MELVIN BELLI 1907-1996 IN MEMORIAM
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ONE Marriage, Divorce, and the Fami
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Formal Procedures before Marrying B
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PREMARITAL AGREEMENTS A premarital
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ing made the same day it handed dow
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son deceived or coerced can ask for
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on children. Children would, for ex
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for support. All of these provision
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the best interests of only one part
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nothing at all to half of what the
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semantics, made necessary by the fa
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may award custody to the grandparen
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Are grandparents’ rights a thing
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engaged in sexual intercourse—eve
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In June 2000, the United States Sup
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Be aware that there is a greater, m
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has no right of custody to the chil
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others, the superior or district co
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Finding Out the Names of the Biolog
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oiling water over the child). Today
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Only a few states permit a child to
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However, some courts permit the par
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sort is difficult, to say the least
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such as creditors. For example, Mar
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Automobiles TWO nO SINGLE PRODUCT H
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sticker price—the sticker price o
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phone for a certain price to get yo
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to cancel the order and recover any
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important is the federal Magnuson-M
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where they would not qualify to pur
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the dealerships that sell new and
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state that the car has only 50,000
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Paying the Money and Transferring O
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AUTOMOBILE REPAIRS As the owner of
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4. Make sure that the shop is compe
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epair shop tow the car in or reimbu
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will want your insurance policy to
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additional $1,500 worth of damage.
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ger in the other car is seriously i
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ally applied only to injuries resul
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(dry or wet, slick with oil, etc.),
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a motorcyclist who was not wearing
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you weaving from side to side. The
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held liable if an employee gets dru
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other car and any witnesses who saw
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a: That’s possible. q: And it’s
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Estate Planning THREE eSTATE PLANNI
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Separate Property When title to any
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When There Is a Surviving Spouse It
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What Probate Is and How It Works AV
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the size of the estate, the circums
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combined gifts up to $22,000 to as
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so popular? Because they cost so mu
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most part completely private docume
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As has been mentioned, all property
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principal’s death or reasonable g
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Organ and Body Donations All fifty
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The original of my Last Will and Te
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tailored to your particular needs a
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in such instances, and that assiste
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chance on what will be done with yo
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accept this as a holographic will,
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and signed is of no consequence. It
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ment that the recipient be a bona f
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nothing bum who squanders all of hi
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lawyer can mean the difference of t
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to dispose of all property, whether
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Remember to talk it over with the p
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us to act as witnesses to it. [He/S
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Executor’s or Executrix’s hands
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ited to, the powers to invest and r
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kind, or entirely in cash. I furthe
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deceased had died without a will. T
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If you want to disinherit the child
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CODICIL I, MARY BAKER, hereby make
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ers. A court will set aside a gift
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Procedure for Contesting a Will It
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of their prescription drugs is not
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credit line? You may be able to get
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What about deducting from your taxe
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worry about, as Sue’s new basis o
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Subsidized Housing For elders who a
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Nursing Homes Nursing homes provide
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from a nonqualified policy. Qualifi
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The Elimination Period LTCI policie
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the maximum amount a single person
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Medicaid pays up to fourteen days t
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telephone: (800) 658-8898 website:
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gist treating an elderly patient wh
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months after buying the house that
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mission even if you sell the house
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ought the buyer to your house, and
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looks the property over and decides
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free from termite infestation, stru
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If the property is being sold by a
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ever, the price of your $225,000 ho
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Selling Your House and the Capital
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A coop is managed by the corporatio
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exclusive profit, you and you alone
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sections. Reading such a legal desc
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ing system. Assume, however, that y
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force” to remove the trespasser.
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Tom and Pam that they split the cos
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IF SOMEONE IS INJURED ON YOUR LAND
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MECHANIC’S LIENS Suppose you hire
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a prospective tenant. A landlord ca
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garage or outdoor parking space inc
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lease. You are now free of your obl
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Injuries to Tenants and Their Guest
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should notify you at least twenty-f
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Ceilings on rent increases usually
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say, one year—at the end of the y
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joining forces with the other tenan
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lord can also lawfully evict a tena
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For many tenants, good and inexpens
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own bedroom. The district attorney
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tous acts of self-definition.” Th
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county recorder. The statutes did n
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SAME-SEX CIVIL UNIONS IN VERMONT On
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(if the partners meet all the crite
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permit common law marriages to be m
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her “next of kin,” which is det
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the petitions brought. Iowa law has
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of the biological mother was the ch
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simply because of sexual orientatio
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ees or employers, but also denial o
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een discriminated against, as she h
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ANTI-GLBT LEGISLATION In the late 1
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embodied in the Scout oath and law,
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About half the states currently hav
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Now suppose that instead of buying
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demonstrate, many states now have l
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normally isn’t liable. But if the
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case, in addition to the vet’s bi
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CRUELTY TO ANIMALS We usually think
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Civil Wrongs: Torts TEN wHEN YOU AR
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SHOULD YOU SEE A LAWYER? When someo
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and caution that a reasonable perso
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correct the dangerous condition, pu
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conduct during the course of a game
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John must have had the “actual ab
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occur, for example, when someone gr
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look out the window and see somebod
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vacy in a public place as you do at
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There are two types of defamation:
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you were in actual physical danger
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tim’s noneconomic loss (pain and
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would employ in the same circumstan
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Diagnosing Your Condition DIAGNOSIS
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Suppose your doctor has been treati
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examination. In one case, a woman d
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But just as you have the right to e
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How the Malpractice “Crisis”Aff
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If an HMO doctor wants to send the
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assumed that you had ample opportun
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stronger metal to be used—one tha
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prompt steps to correct the problem
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with the Acme label (made by Fashio
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already disposed of the product or
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If You Are Discriminated Against Be
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with the lewd remarks or conduct, y
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Who Is Entitled to Receive Benefits
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When Even Maximum Benefits Are Too
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course of his or her job when you w
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or no reason at all. Long duration
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WHO OWNS INVENTIONS OR COPYRIGHTS D
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itation. Another important factor:
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THE AMERICANS WITH DISABILITIES ACT
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essential functions of the position
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perform the range of manual tasks a
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merely a pretext for illegal discri
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If one accommodation would be an un
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ination cases, it is not necessary
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Courses and Examinations Title III
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It is unlawful to discriminate in a
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FIFTEEN Computers and the Internet
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The Internet is a decentralized, gl
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2. The domain name holder has no ri
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clogs up your e-mail. Spamming is a
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a company specializing in restoring
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Like the CDA, COPA also provided af
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e strong-armed by the federal or an
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fraudulent seller), you should chec
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SIXTEEN Social Security, Medicare,
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QUALIFYING FOR BENEFITS You are ent
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❉ military discharge papers if yo
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your ex-spouse must be eligible to
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is able to get some Medicaid assist
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written notice informing you of whe
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dren—under 18 (19 if they are ful
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you must notify the nearest U.S. em
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Part B is supported in part (one-th
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are automatically enrolled in Part
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people. Temporary residents of a pu
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States also have the option to prov
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Contracts SEVENTEEN mENTION OF THE
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enforced against the minor if he or
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since the full week hasn’t passed
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eration is giving you the sofa. Or
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only interested in protecting its o
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efuses to pay Ace the extra $1,000.
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likely rule that the liquidated dam
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How a Judge Interprets a Contract i
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of three things: (1) enforce the co
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When you cancel an order, the mail-
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EIGHTEEN Consumer Credit, Debt Coll
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You are entitled to have alimony an
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Experian (formerly TRW) National Co
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($500) up front. Your net proceeds
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unless you pay the disputed amount.
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tect you from creditor harassment a
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ars the collection agency from cont
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security for the loan); your busine
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They also can be reached at their w
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cash, such as stocks and bonds? Nex
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up for the discharged debts. This
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Whether you can pay $100 a month (o
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What Happens After You File for Ban
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NINETEEN Suing in Small Claims Cour
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Special rules apply if you are suin
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Louisiana $5,000 Maine $4,500 Maryl
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your lost wages for the time you we
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Another factor to consider is the t
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cially on how clear the defendant
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you’re not sure which county to s
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original to the judge at trial. Att
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As the plaintiff, you present your
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or two. This is mainly to prevent a
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the invoice and receipt for the wor
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ut I do have a witness who can supp
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Suppose the defendant refuses your
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YOUR RIGHT TO FREEDOM OF RELIGION T
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Whether public school students can
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voluntary or forced—should be all
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eligious-affiliated colleges and un
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Although the government can prevent
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gun purchasers for criminal and oth
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years, Kaiser’s workforce consist
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Air Travel When you travel by air,
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seats you were promised, although n
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Since March 1, 1989, when the Unite
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Your best copyright protection is t
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erally can quote short passages fro
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to name a few. Improvements to exis
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YOUR RIGHT TO SUE THE GOVERNMENT FO
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If you suspect that a government em
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3. Bureau of Customs and Border Pro
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the country after your visa expires
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The following is a list of the diff
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details of the marriage and what yo
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Termination of Conditional Permanen
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however, he or she must submit a dr
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corporation or one of its subsidiar
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Going through the labor certificati
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❉ you committed a serious nonpoli
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efugee may file for permanent resid
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Temporary protected status is withd
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GETTING YOUR CITIZENSHIP: THE HOLY
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Mailing Address: P.O. Box 82521 Lin
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❉ How many times has the Constitu
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small claims court or traffic court
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a lawyer and the lawyer agrees to a
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viewed and accident reports and med
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grant a motion for summary judgment
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statement. Or the defendant’s att
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After the closing arguments, the ju
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TWENTY-THREE Crimes and Criminal Ju
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Solicitation You are guilty of soli
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Larceny CRIMES OF THEFT Larceny (th
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to destroy your reputation sometime
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controlled substance, provides only
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consenting to sexual intercourse be
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charge to the lesser offense of man
Page 566 and 567:
Consent of the Victim Is an act tha
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prevent it. Before using any type o
Page 570 and 571: You Were Acting Under Threats or Co
Page 572 and 573: and abusive government intrusion. T
Page 574 and 575: Supreme Court ruled that if an offi
Page 576 and 577: the right to go inside your garage
Page 578 and 579: for speeding, gave him a verbal war
Page 580 and 581: In fact, unless the police have the
Page 582 and 583: What are the Miranda rights? In the
Page 584 and 585: Arraignment At your arraignment, wh
Page 586 and 587: ment,” or “bill of indictment,
Page 588 and 589: where the case has not been so wide
Page 590 and 591: of three previous assaults with a d
Page 592 and 593: another man was given a similar sen
Page 594 and 595: amendment did not prohibit the deat
Page 596 and 597: the date the convicted defendant fi
Page 598 and 599: een split among the courts. The fed
Page 600: probation, the judge can terminate
Page 603 and 604: WHEN DO YOU NEED A LAWYER? Do you n
Page 605 and 606: instance—you may have to pay as m
Page 607 and 608: YOUR INITIAL CONSULTATION WITH THE
Page 609 and 610: deposition expenses, travel expense
Page 611 and 612: members of the Bar.” But the only
Page 613 and 614: income to provide you an income, bu
Page 615 and 616: Contacting the State Bar Associatio
Page 617 and 618: and the bank is a contract that req
Page 619: Common Law The “common law” sys
Page 623 and 624: Court ordinarily accepts only cases
Page 625 and 626: WHEN IT’S YOUR TURN TO BE A JUROR
Page 627 and 628: case, leave, and immediately report
Page 629 and 630: unfair tactics and force to get sus
Page 631 and 632: ACKNOWLEDGMENTS I would first and f
Page 633 and 634: 618 alimony, 16-19 A.M. Best Compan
Page 635 and 636: 620 Bowers v. Hardwick, 230 Boy Sco
Page 637 and 638: 6222 condemnation, 205 conditional
Page 639 and 640: 624 D defendant damage, to a house,
Page 641 and 642: 626 elder law, 153-176 elder abuse,
Page 643 and 644: 628 fraud, 50, 274 in contracts, 38
Page 645 and 646: 630 Identity Theft Clearinghouse, 4
Page 647 and 648: 632 laws, xviii, 587-588 affect on
Page 649 and 650: 634 marriage, divorce, and other fa
Page 651 and 652: 636 noneconomic damages, 294 nonfor
Page 653 and 654: 638 price in new car purchases, 48-
Page 655 and 656: 640 reviewing your will, 145-147 bi
Page 657 and 658: 642 suing for injuries (continued)
Page 659 and 660: 644 warnings, lack of adequate, 300
Page 661 and 662: ABOUT THE AUTHOR ALLEN P. WILKINSON
Page 663 and 664: Credits Designed by Oksana Kushnir
Page 665: About the Publisher Australia Harpe
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