In 1070 William appointed Lanfranc arch- bishop of Canterbury and chief justiciar. In the latter capacity, Lanfranc worked as a viceroy, or representative of the king, alongside William and when William was away from court. To reinforce William’s dominance as ruler of England, Lanfranc replaced many English bishops with Normans. He also defeated an effort by the archbishop-elect of York to declare independence from Canterbury. He supported absolute veto power for the king and helped lay the precedent for trying bishops before secular courts. Lanfranc supported papal sovereignty and protected the church from secular influences. He also helped William establish independence for the English church. In 1076 he wrote an important ordinance that separated secular courts from ECCLESIASTICAL COURTS. In addition, he reformed guidelines fo r the marriage of priests, established ecclesiastical courts, and strengthened mon asteries. He died May 24, 1089. Lanfranc brought to England an under- standing of canon and Roman law, which had been more widely embraced in continental Europe. Although he did not replace England’s court system with Roman law, he introduced components of that system to England’s court system. Lanfranc’s efforts laid the foundati on for important writings on ENGLISH LAW in the twelfth and thirteenth centuries. In the twelfth century, the first major text on the COMMON LAW was written, reputedly by RANULF GLANVILL (his authorship is now disputed). In the thirteenth century, writings by HENRY DE BRACTON built further on the common law with principles from both Roman (or civil) law and canon law. These works were important elements in the establishment of England’s eventual common- law system. The scholar FREDERIC W. MAITLAND said that Lanfranc’s influence was responsible for “the early precipitation of English law in so coherent a form.” The United States borrowed concepts from the English court system that began to develop during the years following the Norman Conquest. FURTHER READINGS Butler, Denis. 1966. 1066: The Story of a Year. New York: Putnam. Lloyd, Alan. 1990. The Making of the King, 1066. New York: Dorset. MacDonald, Allan J. 1980. Lanfranc: A Study of His Life, Work, and Writing. New York: Ams Pr. v LANGDELL, CHRISTOPHER COLUMBUS “Mr. Fox, will you state the facts in the case of Payne v. Cave?” That simple question marked the beginning of a revolution in legal education. In 1870 Professor Christopher Columbus Langdell, in the first contracts class he taught at Harvard Law School, put the question to a student and forever changed the way lawyers learned their craft. No longer would law students sit passively and take notes while their professor lectured or read out of a legal treatise. Langdell’s students read the reports of actual court cases and were required to discuss them in class. Langdell is credited with introducing the case-study method of instruction into U.S. law schools. Although there is evidence that Lang- dell was not the first to use the CASE METHOD,as dean, he had the opportunity to shape the program of the influential Harvard Law School and in turn the law training programs of schools throughout the United States. ▼▼ ▼▼ Christopher Columbus Langdell 1826–1906 18251825 18751875 19001900 19251925 18501850 ❖ ◆ ❖ ◆ ◆ ◆ ◆ ◆ 1826 Born, New Boston, N.H. 1853 Graduated from Harvard Law School 1854–70 Practiced law in New York City 1861–65 U.S. Civil War 1870 Joined Harvard Law School as Dane Professor of Law 1871 Selection of Cases on the Law of Contracts published 1895 Stepped down as dean of law school, continued to teach 1900 Retired from Harvard Law School 1905 Brief Summary of Equity Jurisdiction published 1906 Died 1914–18 World War I GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 228 LANGDELL, CHRISTOPHER COLUMBUS Langdell w as born in the small farming town of New Boston, New Hampshire, on May 22, 1826. With the financial assistance of his two sisters, and a later scholarship, Langdell was educated at Exeter Academy. He entered Harvard College in 1848 but left after only one year to begin his legal education by clerking in a law office, a common method of training for lawyers in those days. Within 18 months, Langdell was back at Harvard, this time in the college’s law school, where he remained for three years. Langdell was admitted to the bar in 1854 and practiced law in New York City for 16 years. In 1869 Harvard’s new president, Charles W. Eliot, an accomplished chemist committed to educational reform, recruited Langdell to be Dane Professor of Law at the law school. It was hoped that Langdell could help revitalize the school, which had been criticized by the legal community as stagnant. In Septemb er 1870 Langdell was voted dean of the three-member faculty, a position that allowed him to change the method of legal instruction at Harvard. Prior to Langdell, the primary teaching method in the nation’s law schools was the lecture. Many professors published textbooks that were really expanded versions of their lectures. In class, students took notes while professors read lectures, or they were quizzed on specific portions of an assigned textbook reading. Discussion was rare, as it was assumed that the author of the textbook had found and set forth the true rules of law. Langdell proposed that law students must be given some means of experimentation and research by which they might cut through the excessive verbiage of black-letter rules and discover the fundamental scientific axioms that ought to be used in studying, teaching, and judging the law. Casebooks were to be the students’ laboratories. Langdell’s case-study method was almost impossible to teach when he first introduced it in 1870 because of a lack of printed case reports. When Langdell intro- duced the case method at Harvard Law School, he had to write the books he used in his classes. His Selection of Cases on the Law of Contracts (1871) was the first modern CASEBOOK and became the model for many later such books. Langdell’s new method combined the care- ful study of the decisions in previous cases, with the Socratic method of teaching. The Socratic method was modeled after that used by the Greek philosopher Socrates. Using this method, Langdell w ould ask his students a series of questions whose answers were designed to lead to a logical conclusion foreseen by Langdell. When Langdell first used this method, many of his students were not pleased. In fact, on that first day, many students were unprepared to answer Langdell’s questions about the case of Payne v. Cave. The majority of students openly condemned this new method, complaining that there was no instruction or imparting of rules and that really nothing had been learned. The newer students who had not studied law before resisted answering questions because they thought it presumptuous of them to offer an opinion on a matter in which they had no formal training. The older students, upset that Langdell imparted no legal rules, thought the answers of their fellow students nothing more than the idle talk of young boys. Students even expressed concern that they could never learn the law in time to graduate if it continued to be taught by such a method. When asked a question by a student, Langdell usually hesitated and then answered by posing a question to the student. This led some to question whether Langdell even knew the law he professed to teach. Langdell’s new method was controversial and not an immediate success. During the first semester he taught with it, his students missed classes regularly, and total enrollment in the course fell to only seven. Dissatisfaction with this educational experiment apparently spawned a new law school, Boston University Law School, and the effects were felt throughout the Harvard Law School, as enrollment fell from 136 in 1870–71 to 113 in 1872–73. Despite student criticism, Harvard president Eliot remained committed to Langdell and his controversial method. As students began to understand Langdell’s method, and in particular his Socratic process involving dialogue between teachers and students, they grew to prefer their active involvement over the relative passivity of the old lecture methods. By 1873–74 Harvard Law School enrollment began to rise again, and by 1890 Langdell’s case-study method was firmly established at the flo urishing law school. Langdell’s contributions to legal education go beyond the introduction of the case-study method. As dean of Harvard Law School, he LAW, CONSIDERED AS A SCIENCE , CONSISTS OF CERTAIN PRINCIPLES OR DOCTRINES .TO HAVE A MASTERY OF THESE AS TO BE ABLE TO APPLY THEM WITH CONSTANT FACILITY AND CERTAINTY TO THE EVER -TANGLED SKEIN OF HUMAN AFFAIRS , IS WHAT CONSTITUTES A TRUE LAWYER . —CHRISTOPHER LANGDELL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LANGDELL, CHRISTOPHER COLUMBUS 229 added a third year to what had been a two-year curriculum and required students to pass final exams before they could advance to the next year or gradua te. He was also instrumental in hiring professors who were not practicing lawyers or judges, an approach unheard of at the time. In 1895 Langdell stepped down as dean of Harvard Law School. He continued to teach for five years before retiring in 1900. He died on July 6, 1906, at the age of 80. FURTHER READINGS Carter, W. Burlette. 1997. “Reconstructing Langdell.” Georgia Law Review 32 (fall). Grey, Thomas C. 1983. “Langdell’s Orthodoxy.” Univ. of Pittsburgh Law Review 45. Kimball, Bruce A. 2002. “Young Christopher Langdell, 1826–1854: The Formation of an Educational Reformer.” Journal of Legal Education 52 (March-June). Speziale, Marcia. 1980. “Langdell’s Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory.” Vermont Law Review 5. Weaver, Russell L. 1991. “Langdell’s Legacy: Living with the Case Method.” Villanova Law Review 36. CROSS REFERENCE “Contracts” (Appendix, Primary Document). LANHAM ACT The Lanham Act of 1946, also known as the Trademark Act (15 U.S.C.A. § 1051 et seq., ch. 540, 60 Stat. 427 [1988 & Supp. V 1993]), is a federal statute that regulates the use of trade- marks in commercial activity. Trademarks are distinctive pictures, words, and other symbols or devices used by businesses to identify their goods and services. The Lanham Act gives trademark users exclusive rights to their marks, thereby protecting the time and money invested in those marks. The act also serves to reduce consumer confusion in the identification of goods and services. In addition, the Latham Act protects against trademark dilution, providing relief i f someone uses someone else’s trade- mark in a way that reduces the quality of the trademark. The Lanham Act was not the first federal legislation on trademarks, but it was the first comprehensive federal legislation. Before the Lanham Act, most of trademark law was regulated by a variety of state laws. The first federal trademark legislation was passed by Congress in 1870 and amended in 1876. In 1879 the U.S. Supreme Court found that legislation unconstitutional. Two subse- quent attempts at federal trademark legislation provided little protection for the rights of trademark users. The movement for stronger trademark legislation began in the 1920s and was championed in the 1930s by Representative Fritz Lanham of Texas. In 1946 Congress passed the act and named it the Lanham Act after its chief proponent. Lanham stated in 1946 that the act was designed “to protect legitimate business and the consumers of the country.” The Lanham Act protected trademarks used in commerce and registered with the U.S. PATENT AND TRADEMARK OFFICE , outside of Washington, D. C. It expanded the types of trademarks that deserved legal protection, created legal proce- dures to help trademark holders enforce their rights, and established an assortment of rights that attached to qualified trademarks. Congress has amended the act several times since 1946. The most sweeping changes came in 1988. Those changes included an amendment that authorized the protection of trademarks that had not been used in commerce but were created with the intent that they be used in commerce. Previously, there was a requirement that the marks actually be used. Congress enacted the Trademark Dilution Revision Act of 2006, Pub. L. 109-312, to overturn a 2003 Supreme Court RULING that required a trademark holder to show that the defendant’s mark would cause actual dilution of the plaintiff’s mark. The act now only requires to show that the defendant’s mark was likely to cause dilution. In 2003 the multi-national trademark sys- tem known as The Madrid Protocol was added to the Lanham Act. This allows foreign trademark applicants who seek protection of their trademarks under U.S. law to avoid having to prove use of the mark in the United States, as long there is a BONA FIDE intent to use the mark. The foreign trademark must be registered in a country that is part of the protocol. FURTHER READINGS Klien, Sheldon. 2009. “Introduction to Trademarks: Patents, Copyrights, Trademarks and Literary Property Course Handbook Series.” Practicing Law Institute 123. Miller, Arthur and Davis, Michael. 2007. “Intellectual Property: Patents Trademarks and Copyrights,” 4th EditionThomson West 431. Curtis, Ted, and Joel H. Stempler. 1995. “So What Do We Name the Team? Trademark Infringement, the Lanham GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 230 LANHAM ACT Act, and Sports Franchises.” Columbia-VLA Journal of Law and the Arts 19. Kearney, Brian J. 1986. “The Trademark Counterfeiting Act of 1984: A Sensible Legislative Response to the Ills of Commercial Counterfeiting.” Fordham Urban Law Journal 14. Pierce, Kenneth R. 1990. “Origins of the Use Requirement and an Overview of the New Federal Trademark Law.” Florida Bar Journal 64 (May). Thill, Russell George. 1994. “The 1988 Trademark Law Revision Act: Damage Awards for False Advertising and Consumer Standing under Section 43(A)—Congress Drops the Ball Twice.” DePaul Business Law Journal 6. LAPSE The termination or failure of a right or privilege because of a neglect to exercise that right or to perform some duty within a time limit, or because a specified contingency did not occur. The expiration of coverage under an insurance policy because of the insured’s failure to pay the premium. The common-law principle that a gift in a will does not take effect but passes into the estate remaining after the payment of debts and particu- lar gifts, if the beneficiary is alive when the will is executed but subsequently predeceases the testator. In its broadest sense, the term lapse describes the loss of any right or privilege because of the passage of time or the occurrence or nonoccurrence of a certain event. It is often used by legislatures in reference to governmen- tal concerns. Legislatures may include anti-lapse provisions in statutes to ensure that certain spending programs remain funded from year to year. Lapse also has distinct significance in the law of insurance contracts and wills. An insurance policy can lapse, or become void, if the insured fails to make payments on it. All states give insureds a GRACE PERIOD,which allows extra time to make a payment owed under a policy. The grace period varies from policy to policy. For example, in Maine the grace period is seven days for HEALTH INSURANCE policies with weekly premiums, ten days for such policies with monthly premiums, and 31 days for all other such policies (Me. Rev. Stat. Ann. tit. 24-A, § 2707). The grace period in Maine is 30 days for life insurance policies (§ 2505). Some statutes on insurance policy lapses provide a small measure of protection against lapse. For example, Maine REVISED STATUTES Annotated, title 24-A, section 2739 (West 1995), states that no insurance company may cancel a health insurance policy within three months of nonpayment unless the insurer provides the insured with a not ice of potential lapse within ten to 45 days after the premium was due. Section 4751 provides that in the event of a strike by insurance agents, no life or noncancellable health, hospital expense, or hospital and surgical expense insurance policy may lapse owing to nonpayment within 30 days of the strike’s inception. This law applies only if the agent is responsible for the collection of premiums and is represented in COLLECTIVE BARGAINING by a labor organization that has been recognized by the state. A will is a document left by a deceased person, who is called a testator or devisor. A will allocates the property of a testator to living persons. If the intended recipient of a gift in a will (called a beneficiary or devisee) dies before the testator, the gift may lapse. This means that the gift is void and is placed back into the estate of the testator. The property becomes part of the residuum of the estate and may not be disposed of in the manner sought by the testator. Almost all states have statutes that provide that in the event of a lapse, the gift should go to the issue, or lineal descendants, of the deceased devisee. If the beneficiary has no issue, then the gift is left in the estate of the testator. In some states the anti-lapse statute applies only to grandparents of the testator and lineal descendants of the testator’sgrandparents.For example, under the Maine Revised Statutes Annotated, title 18-A, section 2-605 (West 1995), the issue of the deceased devisee may receive a gift intended for the deceased devisee, but only if they survived the testator by 120 hours. LARCENY The unauthorized taking and removal of the personal property of another by an individual who intends to permanently deprive the owner of it; a crime against the right of possession. Larceny generally refers to nonviolent theft. It is a common-law term developed by the royal courts of England in the seventeenth century. In the United States most jurisdictions have eliminated the crime of larceny from statutory codes, in favor of a general theft statute. The crime of larcen y was developed to punish the taking of property in nonviolent face-to-face encounters, and to set it apart from ROBBERY. Robbery involved some measure of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LARCENY 231 violence in connection with theft, and the courts did not feel that a nonviolent theft should warrant the same punishment. Larceny was nevertheless punished severely. A person convicted of larceny could receive the death penalty or be sentenced to many years in prison. The English courts were careful not to encroach on the lawmaking rights of the British Parliament, so they kept the crime of larceny limited and well-defined. A defendant could be convicted of larceny only if he or she had some physical interaction with the victim; the victim relinquished property that was in the victim’s possession at the time of the taking; the defendant was not in lawful possession of the stolen goods at the time of the taking; and the defendant actually carried the property away at the time of the interaction. Over time the English courts recognized the need to expand the concept of larceny. In the absence of legislative action, they created new offenses based on the manner in which the theft was accomplished. Embezzlement was created in the eighteenth century to punish the misappropriation of property after lawful pos- session. This charge would apply , for example, if a store clerk accepted a customer’s money in a legal sale, and then took that money for his or her own use. Embezzlement was punished more severely than larceny because it involved a breach of trust. Larceny by trick was created to punish the taking of property with the owner’s consent when that consent was obtained by fraud or deceit. Before the courts created the offense of larceny by trick, defendants who had swindled their victims were able to argue that they had not committed larceny because the victims had willfully given them property. Shortly after the courts created larceny by trick, they created the crime of obtaining property by FALSE PRETENSES. Previously, a defendant who induced a person to part with the title to property could escape prosecution because the victim transferred not actual possession of the property but only title to the property. This commercial form of taking was made illegal under the law of false pretenses. The English courts also began to make distinctions based on the value of the stolen property. GRAND LARCENY was any larceny of property worth more than a certain amount of money. Any larceny of property worth less than that amount was called petit larceny and was punished less severely. In time the issue of nonviolent theft became too complex for solution through CASE LAW, and the British Parliament began to enact statutes that more clearly defined it. The law of larceny and related offenses was adopted in the United States and remained in effect throughout the country’s early history. Then, in the twentieth century, many legislatures abolished it in favor of a broad theft statute. In North Dakota, for example, the crime of theft now includes “larceny, stealing, purloining, embezzlement, obtaining money or property by false pretenses, extortion, blackmail, fraudulent conversion, receiving stolen property, misappro- priation of public funds, swindling, and the like” (N.D. Cent. Code § 12.1-23-01 [1995]). The sweeping theft statutes are favored by prosecutors because they make it less likely that a defendant can escape punishment by arguing that one of the discrete elements in a larceny, embezzlement, or related theft was not proved. Under larceny statutes persons who commit theft can escape punishment if the prosecutor does not choose the correct charge. Under broad theft statutes, prosecutors need only be concerned with the intent to steal and the value of the property involved. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Larceny, by Type, in 2007 a a Percentages may not add up to 100 due to rounding. SOURCE: FBI, Crime in the United States, 2007. Motor vehicle accessories 9.1% From buildings 12.0% Shoplifting 14.9% From motor vehicles (except accessories) 26.0% All others 33.1% Purse-snatching 0.6% Pocket-picking 0.4% From coin-operated machines 0.5% Bicycles 3.4% GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 232 LARCENY In states that have incorporated larceny into a broad theft statute, the punishment for a theft is based largely on the value of the stolen property. In Iowa, for example, theft of property exceeding $10,000 in value, theft directly from another’s person, and theft of property in and around certain abandoned buildings is theft in the first degree, a class C felony. A class C felony is punishable by a prison term of up to ten years and a fine of at least $500 but no more than $10,000. Theft of property not exceeding $100 in value is theft in the fifth degree, a simple misdemeanor, which may be punished with a fine of up to $100 and an order to perform some COMMUNITY SERVICE specified by the judge (Iowa Code Ann. §§ 714.2, 902.9, 903.1). The broad theft statutes do not cover all possible theft offenses. States that have a theft statute also maintain statutes prohibiting such acts as the unauthorized use of an automobile, forgery, fraud, deceptive business practices, receiving stolen property, extortion, theft of services, and theft of property that was lost, mislaid, or delivered by mistake. Massachusetts is one state that has retained its larceny statutes. The general larceny statute in Massachusetts combines the crime of embez- zlement with larceny. Under this statute anyone who steals, or with intent to defraud obtains by a false pretence, or whoever unlawfully, and with intent to steal or embezzle, converts, or secretes with intent to convert, the property of another … whether such property is or is not in his possession at the time of such conversion or secreting, shall be guilty of larceny…. (Mass. Gen. Laws Ann. ch. 266, § 30(1)). Massachusetts also has several other larceny statutes, some of which identify a certain act as larceny. For example, the crime of false pretenses relating to contracts, banking transactions, or credit is specifically defined as larceny (§ 33). This statute is necessary because the general larceny statute does not cover such theft. Larceny and theft are distinct from burglary, which is committed when a person trespasses into a dwelling or other building with the intent to commit a crime. Burglary does not necessar- ily consist of the taking of property, although the intent to steal can upgrade a criminal charge from trespassing to burglary. Larceny is also different from shoplifting, which involves the theft of property from a place of business. Most states have eliminated the crime of shoplifting along with larceny, embezzlement, false pretenses, and similar offenses, in creating one broad theft statute. In all states larceny and theft are distinct from robbery. Robbery involves the threat of force or the actual use of force in connection with a theft. The line between robbery, and larceny or theft is unsteady. If a perpetrator plies the victim with alcohol or drugs, most courts consider this a form of force that boosts the crime from larceny or theft to robbery. If a perpetrator simply moves a person who is unconscious through no fault of the perpetra- tor, the movement may not constitute the kind of force that gives rise to robbery. Most courts refuse to convict a defendant of robbery if the victim was unaware of any use of force, but the defendant may be charged with larceny or theft. Larceny and theft generally are a matter of state law. Congress maintains a few federal laws regarding thefts that have federal implications. These statutes include theft at lending, credit, and insurance institutions; theft of interstate shipments of goods; theft on waterways and oceans; and theft by court officers. FURTHER READINGS Abramowitz, Elkan. 1997. “Proposed Amendments to Fraud, Theft Sentencing Guidelines.” New York Law Journal 217 (March 4). Genco, Courtney C. 1992. “What Happened to Durland? Mail Fraud, RICO, and Justifiable Reliance.” Notre Dame Law Review 68. Kaplan, John, Robert Weisberg, and Guyora Binder. 2008. Criminal Law: Cases and Materials. 6th ed. Frederick, MD: Wolters Kluwer Law & Business. Rusting, Robert R. 2003. The Theft Prevention Guide: For Hospitals, Nursing Homes, and Assisted Living Facilites. Marbelhead, MA: Hcpro. LASCIVIOUSNESS Lewdness; indecency; obscenity; behavior that tends to deprave the morals in regard to sexual relations. The statutory offense of lascivious cohabi ta- tion is committed by two individuals who live together as HUSBAND AND WIFE and engage in sexual relations without the sanction of MARRIAGE. LAST CLEAR CHANCE In the law of torts, the doctrine that excuses or negates the effect of the plaintiff’s contributory GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LAST CLEAR CHANCE 233 negligence and permits him or her to recover, in particular instances, damages regardless of his or her own lack of ordinary care. The rule of last clear chance operates when the PLAINTIFF negligently enters into an area of danger from which the person cannot extricate himself or herself. The defendant has the final opportunity to prevent the harm that the plaintiff otherwise will suffer. The doctrine was formu- lated to relieve the severity of the application of the contributory NEGLIGENCE rule against the plaintiff, which completely bars any recovery if the person was at all negligent. There are as many variations and adapta- tions of this doctrine as there are jurisdictions that apply it. Four different categories have emerged, which are classified as helpless plain- tiffs, inattentive plaintiffs, observant defendants, and inattent ive defendants. Helpless Plaintiffs Where the plaintiff’s previous negligence has placed him or her in a position from which the person is powerless to extricate himself or herself by the exercise of any ordinary care, and the defendant detects the danger while time remains to avoid it but fails to act, the courts have held that the plaintiff can recover. There must be proof that the defendant discovered the situation, had the time to take action that would have saved the plaintiff, but failed to do what a reasonable person would have done. In the absence of any one of these elements, the courts deny recovery. If the defendant who has a duty to discover the plaintiff’s peril does not do so in time to avoid injury to the plaintiff, some courts have permitted recovery under the rationale that the defendant’s subsequent negligence is the proxi- mate cause, or direct cause, of the injury, rather than the contributory negligence of the plaintiff. The defendant must have been able to have discovered the peril through appropriate vigi- lance so as to avoid its harmful consequences to the plaintiff. Inattentive Plaintiffs In another group of cases, the plain tiff is not helpless but is in a position to escape injury. The person’s negligence consists of failure to pay attention to his or her surroundings and detect his or her own peril. If the defendant discovers the plaintiff’s danger and inattentiveness, and is then negligent, a majority of courts allows the plaintiff to recover. Some courts hold that the defendant must actually recognize the plaintiff’s danger and inattention. Most courts apply a more objective standard; they require only that the defendant discover the situation and that the plaintiff’s peril and inattentiveness be evident to a reasonable person. The disc overy can be proved by CIRCUMSTANTIAL EVIDENCE. There is an additional essential qualification that the defendant can frequently, reasonably assume until the last moment that the plaintiff will protect himself or herself, and the defen- dant has no reason to act until he or she has some notice to the contrary. If the defendant does not discover the plaintiff’s situation—but could do so with appropriate vigilance—neither party can be viewed as possessing the last clear chance. The plaintiff is still in a position to escape, and his or her inattentiveness persists until the juncture of the accident, without the interval of superior opportunity of the defendant. The plaintiff cannot reasonably demand of the defendant greater care for his or her own protection than that which he or she as plaintiff would exercise for himself or herself. Nearly all of the courts have ruled that, in this situation, there can be no recovery. Observant Defendant The observant defendant is one who actually sees the plaintiff in time to act so as to avoid the harm and assumes that a duty exists to act under the circumstances. The per son perceives the plaintiff’s helpless or inattentive condition, but thereafter is negligent in failing to act so as to prevent the plaintiff’s harm. In most instances, the defendant’s conduct is itself the cause of the plaintiff’s danger, but this is not a requirement so long as a duty to act exists. The plaintiff must prove that the defendant actually saw him or her and that a reasonable person would have known that he or she was inattentive or helpless. This is determined by an objective test entailing circumstantial evidence of the defendant’s state of mind. The defendant cannot assert unawareness of the plaintiff’s powerlessness or inattentiveness when that fact would have been evident to any observer. Inattentive Defendant The inattentive defendant is one who fails to fulfill the duty to maintain a surveillance in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 234 LAST CLEAR CHANCE order to see the plaintiff in time to avoid the harm, perceive the person’s helpless or inatten- tive condition, and thereby exercise reasonable care to act in time to avoid the harm. Due to the defendant’s negligence, however, he or she fails to see the plaintiff in time, and injury occurs. Application of Doctrine There are four possible cases in which the rule of last clear chance can be applied. The typical last clear chance situation involves the helpless plaintiff against the obser- vant defendant, and all courts that accept the doctrine will apply it. The few courts that do not recognize the rule attain the same result under the doctrine of willful and wanton misconduct. In the helpless plaintiff-inattentive defendant and the inattentive plaintiff-observant defendant cases, most jurisdictions that acknowledge the rule apply it. Where the case entails the inatten tive plaintiff against the inattentive defendant, the justifications for the rule are eliminated, and nearly all jurisdictions refuse to apply it. The defendant’s negligence must occur subsequent to that point in time when the person discovered or should have discovered the plaintiff’s peril. LAST RESORT A court, such as the U.S. Supreme Court, from which there is no further appeal of a judgment rendered by it in review of a decision in a civil or criminal action by a lower court. In most jurisdictions, the state’s court of last resort is called the supreme court. This name differs in some jurisdictions, however. For example, the court of last resort in New York is the New York Court of Appeals, while the trial-level court is called the Supreme Court. In Texas, the court of last resort for civil trials is the Texas Supreme Court, but the highest court for criminal appeals is the Texas Court of Criminal Appeals. The state of Texas is rather unusual because it employs two courts of last resort to hear appeals. LATENT Hidden; concealed; that which does not appear upon the face of an item. For example, a latent DEFECT in the title to a parcel of real property is one that is not discoverable by an inspection of the title made with ordinary care. Similarly, a latent defect in an item of merchandise is one that could not have been discovered by any known or customary inspection or test. LATERAL SUPPORT The right of a landowner to have his or her property naturally upheld by the adjoining land or the soil beneath. The adjoining owner has the duty not to alter the land, such as by lowering it, so as to cause the support to be weakened or removed. CROSS REFE RENCE Adjoining Landowners. LAW A body of rules of conduct of binding legal force and effect, prescribed, recognized, and enforced by controlling authority. In U.S. law, the word law refers to any rule that, if broken, subjects a party to criminal punishment or civil liability. Laws in the United States are made by federal, state, and local legislatures, judges, the president, state gover- nors, and administrative agencies. Law in the United States is a mosaic of statutes, treaties, CASE LAW, ADMINISTRATIVE AGENCY regulations, executive orders, and local laws. U.S. law can be be wildering because the laws of the various jurisdictions—federal, state, and local— are sometimes in conflict. Moreover, U.S. law is not static. New laws are regularly introduced, old laws are repealed, and existing laws are modified, so the precise definition of a particu- lar law may be different in the future from what it is today. The U.S. Constitution The highest law in the United States is the U.S. CONSTITUTION. No state or federal law may contradict any provision in the Constitution. In a sense, the U.S. Constitution is a collection of inviolable statutes. It can be altered only by amendment. Amendments pass after they are approved by two-thirds of both houses of Congress or after petition by two-thirds of the state legislatures. Amendments are then ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states. Upon GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LAW 235 ratification, the amendment becomes part of the Constitution. Beneath the federal Constitu tion lies a vast body of other laws, including federal statutes, treaties, court decisions, agency regulations, and executive orders, and state constitutions, sta- tutes, court decisions, agency regulations, and executive orders. Statutes and Treaties After the Constitution, the highest laws are written laws, or statutes, passed by elected federal lawmakers. States have their own con- stitutions and statutes. Federal laws generally involve matt ers that concern the entire country. State laws generally do not reach beyond the borders of the state. Under Article VI, Section 2, of the U.S. Constitution, federa l laws have supremacy over state and local laws. This means that when a state or local law conflicts with a federal law, the federal law prevails. Federal statutes are passed by Congress and signed into law by the president. State statutes are passed by state legislatures and approved by the governor. If a president or governor vetoes, or rejects, a proposed law, the legislature may override the veto if at least two-thirds of the members of each house of the legislature vote for the law. Statutes are contained in statutory codes at the federal and state levels. These statutory codes are available in man y public libraries, in law libraries, and in some government build- ings, such as city halls and courthouses. They are also available on the World Wide Web. For example, the statutory codes that are in effect in the state of Michigan can be accessed at http:// www.legislature.mi.gov. A researcher may ac- cess the United States Code, which is the compilation of all federal laws, at http:// uscode.house.gov. The site is maintained by the Office of the Law Revision Counsel of the U.S. House of Representatives. On the federal level, the president has the power to enter into treaties, with the ADVICE AND CONSENT of Congress. Treaties are agreements with sovereign nations concerning a wide range of topics such as environmental protection and the manufacture of nuclear missiles. A treat y does not become law until it is approved by two-thirds of the U.S. Senate. Most treaties are concerned with the actions of government employees, but they also apply to private citizens. Case Law Statutes are the primary source of law, and the power to enact statutes is reserved to elected lawmakers. However, judicial decisions al so have the force of law. Statutes do not cover every conceivable case, and even when a statute does control a case, the courts may need to interpret it. Judicial decisions are known collectively as “ case law.” A judicial decision legally binds the parties in the case and also may serve as a law in the same prospective sense as does a statute. In other words, a judicial decision determines the outcome of the partic- ular case and also may regulate future conduct of all persons within the jurisdiction of the court. The opinions of courts, taken together, comprise the COMMON LAW. When there is no statute specifically addressing a legal dispute, courts look to prior case s for guidance. The issues, reasoning, and holdings of prior cases guide courts in settling similar disputes. A prior opinion or collection of opinions on a particular legal issue is known as “pre cedent,” and courts generally follow precedent, if any, when decid- ing cases. BREAKING with preced ent may be justified when circumstances or attitudes have changed, but following precedent is the norm. This gives the common law a certain predict- ability and consistency. The common law often controls civil matters, such as contract disputes and personal injury cases (torts). Almost all criminal laws are statutory, so common law principles are rarely applied in criminal cases. Sometimes courts hear challenges to statutes or regulations based on constitutional grounds. Courts can make law by striking down part or all of a particular piece of legislation. The Supreme Court has the power to make law binding throughout the country on federal constitutional issues. The highest court in each state has the same power to interpret the state constitution and to issue holdings that have the force of law. Occasionally, courts create new law by departing from existing precedent or by issuing a decision in a case involving novel issues, called a “case of first impression. ” If legislators disagree with the decision, they may nullify the holding by passing a new statute. However, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 236 LAW if the court believes that the new statute violates a constitutional provision, it may strike down all or part of the new law. If courts and lawmakers are at odds, the precise law on a certain topic can change over and over. When researching a legal issue, it is helpful to consult relevant case law. The researcher first finds the relevant annotated statutes and then reads the cases that are listed under the statutes. Reading case law helps the researcher under- stand how the courts interpret statutes, and also how the courts analyze related issues that are not covered in the statutes. Volumes of case law can be found in some public libraries, in law libraries, in courthouses, and in state govern- ment buildings such as statehouses and state libraries. Case law research can also be con- ducted using the INTERNET. For example, Cornell University’s online Legal Information Institute (http://www.law.cornell.edu) offers recent and historic U.S. Supreme Court decisions as well as recent New York appeals decisions. Agency Regulations and Executive Orders Administrative agencies may also create laws. The federal and state constitutions implicitly give the legislatures the power to create administrative agencies. Administrative agencies are necessary because lawmakers often lack detailed knowledge about important issues, and they need experts to manage the regulation of complex subjects. On the federal lev el, for example, the DEPARTMENT OF THE INTERIOR was created by Congress to manage the nation’s natural resources. In creating the agency, Congress gave it the power to promulgate regulations concerning the use and protection of natural resources. Administrative agency regulations have the force of law if they have a binding effect on the rights and duties of persons. For example, the Department of the Interior’s regulations that prohibit mining or logging in certain areas Common-Law Courts C B ourts of law are a fundamental part of the U.S. judicial system. The U.S. Constitution and all state constitutions recognize a judi cial branch of government that is charged with adjudicating disputes. Beginning in the 1980s, vigilante organiza- tions chal lenged the judicial system by establishing their own so-called common-law co urts. By 1996, these common-law courts existed in more than 30 states. They had no legitimate power, being created without either con stitutional or statutory authority, and in fact sometimes contravene established law. As of 2009, the number of such courts had declined, though it was difficult to document the actions of these secretive groups. Traditionally, common-law courts administered the common law, that is, law based on prior decisions rather than statutes. These new common- law courts, however, are premised on a mixture of U.S. constitutional law, English common law, and the Bible, all filtered through an often racist and anti- Semitic worldview that holds the U.S. legal system to be illegitimate. These common-law courts imitate the formalities of the U.S. justice system, issuing subpoenas, making criminal indictments, and hearing cases. Most of their cases involve divorce decrees and foreclosure actions. Many of the persons on the courts or seeking t heir assistance are in dire financial circumstances. They wish to prevent the loss of their property by having a common-law court declare them free of the loans they have secured from banks. Though common-law courts appeared to be merely a symbolic attempt by extremists to assert their political legitimacy, the actions of some of them led to prosecution for criminal consp iracy. Common-law courts have issued arrest warrants for judges and prosecutors in Montana and Idaho and have threatened sheriffs who refused to follow their instructions. In 1994, the Garfield County, Montana, prosecutor charged members of a common-law court with cri minal syndicali sm, for advocating violence against public officials. One court member was sentenced to ten years in prison, and others received shorter sentences. Other members of vigilante groups have been prose cuted for a variety of fraudulent activities based on the supposed legitimacy of these common-law courts. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LAW 237 . from Harvard Law School 1854–70 Practiced law in New York City 1 861 65 U.S. Civil War 1870 Joined Harvard Law School as Dane Professor of Law 1871 Selection of Cases on the Law of Contracts published 1895. dean of law school, continued to teach 1900 Retired from Harvard Law School 1905 Brief Summary of Equity Jurisdiction published 19 06 Died 1914–18 World War I GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD. of vigilante groups have been prose cuted for a variety of fraudulent activities based on the supposed legitimacy of these common -law courts. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LAW