John M. Scheb II, Hemant Sharma - An Introduction To The American Legal System-Wolters Kluwer (2015)
John M. Scheb II, Hemant Sharma - An Introduction To The American Legal System-Wolters Kluwer (2015)
John M. Scheb II, Hemant Sharma - An Introduction To The American Legal System-Wolters Kluwer (2015)
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PREFACE
ABOUT THE AUTHORS
Chapter 5 Torts
Chapter 11 Legislation
Chapter 12 Administrative Law and Procedure
INDEX
CONTENTS
PREFACE
ABOUT THE AUTHORS
Chapter 5 Torts
Introduction
Negligence
Intentional Torts
Strict Liability
Vicarious Liability
Special Tort Situations
Immunities from Liability
Recent Developments in Tort Law
Tort Reform
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
Endnotes
Chapter 6 Property Law
Introduction
Personal Property
Real Estate
The Lessor-Lessee Relationship
Regulation of the Use of Real Property
Eminent Domain
Trusts
Wills and Intestate Succession
Estate, Gift, and Inheritance Taxes
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
Endnotes
Chapter 11 Legislation
Introduction
Constitutional Authority to Legislate
Antitrust Law
Banking and Securities
Labor Law
Social Welfare Legislation
Civil Rights Legislation
Environmental Legislation
National Security Legislation
The USA Patriot Act
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
Endnotes
INDEX
PREFACE
Organization
We have maintained the structure of the book from its previous editions
and have concentrated our efforts on updating and clarifying the material.
Part I sets forth the fundamental concepts and concerns of the law,
examines the historical development of the American legal system from its
English common law roots, and surveys the structures of the American
legal system as well as the legal profession. Part II provides an overview
of the substantive law, including constitutional law, criminal law, torts,
property law, contracts and business law, and family law. Part III surveys
the procedural law, covering civil and criminal procedure, the rules of
evidence, and the appellate process. Finally, Part IV looks at two very
important areas of modern law: legislation and administrative law and
procedure. Because this book will be many students’ first encounter with
legal studies, we have included an extensive glossary of legal terms (see
Appendix B).
Special Features
To the beginning student, an introduction to the law can be somewhat
overwhelming. To make the book more accessible and useful to the
student, every chapter contains a list of learning objectives, a chapter
outline, a chapter summary, and a set of boldfaced key terms, all of which
are defined in the glossary. To make the book more provocative, each
chapter also contains a set of questions for thought and discussion. For the
student who wishes to learn more about the topics addressed in the book,
each chapter also contains a list of additional reference materials.
Because judicial decisions are central to the development of the law, we
have incorporated two features into the text designed to alert students to
especially important cases. One of these features, entitled “Case in Point,”
is a short summary of a significant court decision. There are multiple Case
in Point features in each chapter. A related feature, “Opinion of the Court,”
appears in each chapter and provides substantial excerpts from landmark
opinions of the U.S. Supreme Court.
Another special feature, entitled “The Law in Action,” focuses on
practical applications of the law and real-world controversies involving
legal issues. Topics addressed in this feature range from “Civil
Disobedience and the Struggle for Civil Rights” (Chapter 1) to
“Purchasing a House” (Chapter 6). Students will also find a set of
“Sidebar” features throughout the book. These features provide
miscellaneous information relevant to chapter topics. For example, see the
Sidebar in Chapter 5, “The Infamous McDonald’s Coffee Case,” which is
of interest to every student of tort law. Other Sidebar features focus on
such topics as canons of judicial conduct (Chapter 2), warranty deeds
(Chapter 6), and the law regarding employment discrimination (Chapter
11). We hope that all these features will make the text more informative
and more interesting.
Acknowledgments
Previous editions of this book relied on the excellent assistance of a
number of able persons, whose efforts we gratefully acknowledge once
again:
• Richard R. Garland, Esq., an attorney in Sarasota, Florida, who is
certified in appellate practice.
• Robert P. Scheb, Esq., an attorney in Sarasota, Florida, who practices in
the field of estates and trusts.
• Rebecca A. Rider, Esq., an attorney in Sarasota, Florida, who practices
in the field of domestic relations.
• William T. Brown, an attorney and lecturer in the Political Science
Department and College of Law at the University of Tennessee,
Knoxville.
• Dr. Mark D. Welton, Professor in the Department of Law at the United
States Military Academy, West Point.
Finally, we extend our appreciation to the editorial staff at Wolters
Kluwer Law & Business for their encouragement and support throughout
this project.
Of course, we assume full responsibility for any errors of commission or
omission contained in these pages.
John M. Scheb II
Hemant Sharma
January 2015
ABOUT THE AUTHORS
CHAPTER OUTLINE
Introduction
The Functions of Law in Society
The Development of Law
The Common Law Tradition
The American Constitution
Modern Statutes and Codification
Administrative Regulation
The Decisional Law
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
From our nation’s earliest moments through the present-day, law has held
an important place in American society. Our Founders devoted great care
to crafting a system of government in which the rule of law was a crucial
feature. We have since developed an elaborate system to make and enforce
the law. A large professional class is now engaged in the practice of law.
Numerous academic institutions are devoted to teaching the law. There are
thousands of publications dedicated to legal education, research, and
advocacy. Our mass media and popular culture reflect the social
preoccupation with law, in that we are exposed to a steady barrage of
books, films, newspaper articles, television shows, and web sites dealing
with the law.
Despite this cultural preoccupation with the law, an essential question
remains: What precisely is “law”? Numerous definitions have been
proposed, reflecting the variety of philosophical and theoretical
orientations to the concept. Bearing in mind that any definition is
imperfect, we begin with the following simple formulation: law is a set of
rules promulgated and enforced by government. 1 This formulation is
often referred to as positive law, which the nineteenth century English
legal theorist John Austin defined simply as “the command of the
sovereign.” Positive law is indeed the command of the sovereign, in that it
is enunciated by government and backed by the coercive power of the
state. But there is more to law than this. To be law, the command of the
sovereign must take the form of a rule, a principle, or a directive that
applies with equal force to everyone.2 Moreover, to be accepted as
legitimate, the law must be perceived as rational, fair, and just. Some
would argue that for positive law to be legitimate, it must conform to a
higher law.
Higher Law
Natural law is law that is presumed to flow from man’s “natural”
condition, that is, the social condition existing prior to the emergence of
government. Natural law is sometimes used to refer to universal principles
of morality and justice; however, precisely what those principles are is
subject to conflicting interpretations. In De Republica, the ancient Roman
orator Cicero (106–43 B.C.) defined natural law as “right reason in
agreement with nature.” In Summa Theologica, the medieval philosopher
Thomas Aquinas (1225–1274) viewed natural law as the “participation in
the Eternal Law by rational creatures.” In a less theological approach, the
seventeenth century Dutch jurist Hugo Grotius defined natural law as rules
of human conduct that can be discovered solely by the use of reason.
Elsewhere, in his influential Commentaries on the Laws of England
(1769), William Blackstone asserted the primacy of natural law.
Blackstone’s Commentaries would become something of a legal bible in
America, and helped to perpetuate natural law theory in this country.
To understand this concept, we can turn to a seminal document
associated with our nation’s founding. Our Declaration of Independence
(1776) asserts that “all men are created equal, that they are endowed by
their Creator with certain unalienable rights, that among these are Life,
Liberty, and the pursuit of Happiness.” Those who created the basic
framework of our legal system and system of government believed that
rights ultimately are not of secular origin. Rather, they flow from natural
law as ordained by God. Even today, legal theorists, lawyers, lawmakers,
and judges sometimes invoke natural law. But natural law as such is not an
enforceable body of rules. It is more of a philosophical concept—the idea
that there is a set of principles of morality and justice that transcends the
positive law. In this regard, natural law provides a basis for the criticism,
and sometimes the disobedience, of the positive law.
Natural law and religious precepts continue to be important because
they provide a basis upon which to evaluate and contextualize the positive
law. For example, quite often opponents of the death penalty will cite the
Biblical injunction “Thou shalt not kill.” Similar arguments are often made
regarding abortion and euthanasia. Obviously, people can and will
disagree on the requirements of natural law, Scripture, and divine
ordinance. Because we have a secular government committed to the ideas
of separation of church and state and religious tolerance, religious precepts
are not enforceable through our legal institutions. But religious precepts,
like natural law, can provide citizens with a philosophical anchor—a sense
that there is a higher law by which positive law can be judged.3
Social Control
Law is a means of social control, but it is certainly not the only one.
Informal, unwritten rules are transmitted and enforced by social groups,
including families, peers, and colleagues. Moral principles are developed
and enforced by the individual conscience. Religious precepts are
developed, transmitted, and reinforced by religious institutions. Social
norms, moral principles, and religious precepts constrain the behavior of
most people, at least most of the time. Yet, they are inadequate in some
instances. Social norms can be vague or weak, religious precepts vary
somewhat across faiths and denominations, and moral principles can be
totally lacking in some individuals. Law is necessary to pick up where
informal means of social control leave off.
Resolution of Conflict
Law is a means of conflict resolution, but, again, there are numerous
methods of conflict resolution at work in our society every day.
Individuals, groups, families, corporations, and governments usually can
work out their differences informally through discussion, negotiation, and
compromise. The law serves as a framework for such interactions. When
informal means of conflict resolution are not fruitful, parties often seek
recourse through formal legal means. Law provides a mechanism for the
peaceful resolution of conflict, but it is by no means always successful at
preventing violence.
Most theorists believe that modern society, which is increasingly
conflictual, requires a formal system of law. As society becomes more
diverse, impersonal, complex, and specialized, this requirement grows ever
stronger. At the same time, however, the strains on the legal system
become increasingly powerful. Law is the command of the sovereign, and
therefore reflects the existing structure of power in society. But in a
democratic society such as ours, law also depends on a reasonable degree
of social consensus. With increasing social, economic, and political
diversity, such a consensus can be difficult to achieve.
Roman Law
By far the most significant of the ancient legal codes was the Roman Law,
which formally began with the introduction of the Twelve Tables in the
mid-fifth century B.C. Prior to the Twelve Tables, disputes between Roman
citizens were decided on the basis of unwritten customary rules. When
these rules were in doubt, the College of Pontiffs, made up of patrician
aristocrats, rendered authoritative interpretations. Plebeians (common
citizens) often objected to the interpretations rendered by the Pontiffs, and
eventually demanded that the Roman Law be codified. The resulting
Twelve Tables would serve as the basis of Roman Law for one thousand
years. Over the centuries, however, Roman Law was modified, expanded,
and extended through a series of imperial edicts. In the early sixth century
A.D., the Byzantine Emperor Justinian commissioned the legal scholar
Tribonian to produce a systematic codification of the Roman Law. The
result was the Corpus Juris Civilis, or Body of Civil Law, also known as
the Code of Justinian. When completed, it was supplemented by the
Novellae (new laws), placing long-established Roman customs in statutory
form. After the decline of the Roman Empire, the feudal system relied
largely on customs and later on royal decrees. A remnant of the Roman
Law remained, and during the twelfth century the study of the Roman Law
was revived in Italy and, later, in France. Throughout the Middle Ages, the
canon law of the Roman Catholic Church exercised great control in
personal relations such as marriage and inheritance. The Roman Law
eventually became the basis of law throughout the entire continent of
Europe.
American law is derived largely from the English common law, which
dates from the eleventh century. At the time of the Norman Conquest of
1066, English law was a patchwork of local laws and customs, often
applied by feudal courts, and church law enforced by ecclesiastical courts.
William the Conqueror, the first Norman king of England, strengthened
the royal courts established by his Anglo-Saxon predecessors. His son,
King Henry I, dispatched royal judges to preside in county courts. His
successor, Henry II, greatly expanded the role of the royal judges by
instructing them to travel throughout the kingdom, taking jurisdiction in
cases formerly under the province of feudal and local courts.
The King’s judges settled disputes based on the customs of the Anglo-
Saxon people and the well-established principles of feudal society. These
royal courts grew increasingly popular due to their reliance on trial by
jury, which of course would become a bedrock principle of Anglo-
American justice. The judges of these courts began to look to the decisions
of their colleagues in similar cases to guide their judgments. Out of the
decisions of these courts grew a law common to the entire kingdom, hence
the term “common law.”
Magna Carta
One of the most important moments in the development of Anglo-
American law occurred in 1215, when a reluctant King John placed his
seal on Magna Carta. Essentially, Magna Carta was a series of promises
that the King would follow the dictates of the law in dealing with his
subjects and vassals. This document established the principle that
government is subject to the rule of law, which is the essential idea upon
which the United States Constitution is based. Magna Carta is also the
source of another bedrock principle in our legal system today—the idea of
due process of law. Magna Carta stipulated that “[n]o free man shall be
taken or imprisoned or disseised or outlawed or exiled or in any way
destroyed, nor will we go or send against him, except by the lawful
judgment of his peers or by the law of the land.” Later statutes and court
decisions would use the term “due process of law” as synonymous with
“the law of the land.” The American Bill of Rights even uses the term “due
process of law” in protecting citizens’ rights to life, liberty, and property.
But the essential idea was expressed nearly six hundred years earlier in
Magna Carta.
The Common Law Courts
By the time Magna Carta was signed, there were three common law
courts: the King’s Bench, the Court of Common Pleas, and the Court of
Exchequer. The Court of King’s Bench dealt primarily with “pleas of the
Crown,” which later came to be known as criminal cases. The Court of
Common Pleas had jurisdiction over “common pleas,” disputes between
individuals that would later come to be termed “civil” cases. The Court of
Exchequer originally dealt with matters involving the King’s property and
revenue. Later, through a procedural device called the writ of Quominus,
the Court of Exchequer extended its jurisdiction to private controversies.10
Juries
One of the keys to the success of the common law was the emergence of
the institution of the jury trial. Prior to the advent of the common law,
trials in England took the form of combat, ordeal, or compurgation. In trial
by combat, opposing parties would engage in combat or hire champions to
do battle on their behalf. In the most ritualistic form of trial by combat,
knights acting as champions would do battle by joust, charging one
another on horseback and wielding lances. The assumption was that God
would intervene on the side of justice and truth. Thus, the litigant whose
champion prevailed in the joust prevailed in the legal dispute.
In a trial by ordeal, the defendant was tortured by fire or water. If a
defendant survived the ordeal, it was said that God had intervened to prove
the defendant’s innocence before the law. In a trial by compurgation, a
person accused of wrongdoing would recruit a body of men to attest to his
honor. Custom required that any oath be repeated according to an exact
form; any deviation undermined the value of the oath.
In the place of these irrational modes of trial, the common law courts
substituted a more rational process of fact-finding. Early on, common law
judges heard testimony from witnesses. Eventually, neighbors of the
accused or of the litigants served as fact-finders, basing their conclusions
only on evidence introduced in court. By the fourteenth century, the jury
system was well established. Indeed, by that time, the law recognized two
types of juries: the grand jury, which would decide whether an individual
should be indicted for a crime; and the petit jury, which would serve as
fact-finder in both civil and criminal cases.
The jury system developed at common law became an integral part of
the American legal system. In many civil cases in American society today,
the defendant has the right to a jury trial. Further, all individuals accused
of serious crimes have a right to a trial by jury. Finally, grand juries
continue to be widely used to review whether criminal charges should
result in a defendant being bound over for trial.12
Equity
In its formative period, the common law was characterized by considerable
flexibility. By the fourteenth century, the common law had become highly
technical and rigid. Moreover, litigation was expensive. Aggrieved parties
who were unable to secure a remedy at common law would appeal directly
to the King for justice. The King often delegated such matters to his
Chancellor, who was a cleric and a member of the King’s court, often
referred to as the “keeper of the King’s conscience.” Eventually, this
practice of referring disputes to the Chancellor evolved into a secular
tribunal called the Court of Chancery, which developed its own
jurisprudence called equity.
The term “equity” comes from the Latin aequitas, which means justice
or equality. The idea of equity as a supplement to law can be traced to the
Roman Law, and ultimately, to the ancient Greek philosopher Aristotle
(384–322 B.C.). The idea is that when existing legal rules and procedures
are insufficient to remedy injustice, a court should rely on general
principles of fairness in granting relief. The Court of Chancery did not
follow the writ system, nor did it utilize juries; chancellors made factual
determinations in addition to fashioning equitable remedies. Although the
Court of Chancery did not follow the common law or the doctrine of stare
decisis, chancellors eventually came to rely on “maxims” derived from
previous equitable decisions. A maxim is a statement of a generally
accepted principle, for example: “He who seeks equity must have clean
hands”; “Equity aids the vigilant, not those who sleep on their rights.”
Perhaps the chief distinction between the common law and equity was
that common law courts were limited to awarding damages to plaintiffs
who prevailed in civil actions, while the Court of Chancery could issue an
injunction to prevent or terminate injurious conduct and could also order
specific performance in cases of breach of contract. Development of the
law of trusts represented one of the principal achievements of the
Chancery Courts. Eventually, common law and equity would be merged,
both in England and in the United States—at least in the sense that law and
equity jurisdiction would be vested in the same courts.
Judicial Review
The text of the Constitution is silent on the means by which the judiciary
can check and balance the other branches. In Marbury v. Madison
(1803),16 the single most important case in American constitutional
history, the Supreme Court asserted the power to review acts of Congress
and declare them null and void if they are found to be contrary to the
Constitution. Later, the Court extended this power to encompass the
validity of state laws under the Federal Constitution. Commonly referred
to as judicial review, the power of the federal courts to rule on the
constitutionality of legislation is nowhere explicitly provided for in the
Constitution. However, many of the Framers of the Constitution supported
the concept of judicial review, and most probably expected the courts to
exercise this power. In any event, the power of judicial review is now
well-established. By assuming this power, the federal judiciary greatly
enhanced its role in the system of checks and balances. Moreover, the
courts took on primary responsibility for interpreting and enforcing the
Constitution. Today, both state and federal courts exercise this authority.
CASE IN POINT
William Marbury’s commission as justice of the peace for the District of
Columbia had been signed by President John Adams following Senate
confirmation on March 3, 1801, President Adams’s last day in office.
Everything was in order, but Marbury never received the commission.
Thomas Jefferson was sworn in as the Nation’s third President on
March 4, 1801. His Secretary of State, James Madison, declined to deliver
the commission to Marbury. Marbury filed suit in the Supreme Court,
invoking the Court’s original jurisdiction. Marbury asked the Court to
issue a writ of mandamus, an order directing Madison to deliver the
disputed judicial commission to him.
The Supreme Court held that Marbury was entitled to the commission
but declined to issue the writ of mandamus. The Court held that the Act of
Congress giving the Supreme Court the power to issue the writ of
mandamus in cases brought under its original (as opposed to appellate)
jurisdiction was unconstitutional. Although the Court denied to itself the
power to issue writs of mandamus in cases of original jurisdiction, it
claimed the much more important power to declare acts of Congress null
and void. In support of this assumption of power, Chief Justice John
Marshall reasoned that, since the Constitution is the “supreme law of the
land,” and it is the duty of the judiciary to interpret the law, judicial review
is both necessary and inevitable. It was in this context that Marshall made
his frequently quoted assertion that “[i]t is emphatically the province and
duty of the judicial department, to say what the law is.” In reaching this
conclusion, Marshall stressed the fact that judges take an oath to support
and defend the Constitution. Marshall ended his landmark opinion with the
question: “Why does a judge swear to discharge the duties agreeable to the
Constitution of the United States, if that constitution forms no rule for his
government?”
SIDEBAR
Statutory Construction
Although the adversarial system of justice and the basic common law
concepts are defined today essentially as they were by the common law
judges centuries ago, the law has now been codified by legislatures to a
great extent. Accordingly, when attempting to answer questions of law,
lawyers and judges now look first to the relevant statutes. Of course,
statutory provisions do not always have plain or obvious meanings. One of
the principal functions of contemporary courts, therefore, is statutory
construction, which is the task of assigning concrete meaning to statutory
provisions that may allow for different interpretations. For example, the
Civil Rights Act of 1964 contained provisions barring racial discrimination
in employment. Even so, it remained for the courts to decide what
constituted discrimination in particular instances and what policies could
be utilized to combat discrimination in the workplace. In particular, courts
have had to decide whether and under what circumstances employers
could utilize affirmative action programs to remedy discrimination and to
promote diversity in the workplace.
Codification
One of the most important developments in the American legal system has
been the codification of the common law. Through codification, a
legislature transforms the common law in a given area into a clear,
systematic code of laws. The first area of law in which this took place was
civil procedure.
Civil procedure under English common law was extremely complex,
technical, and esoteric. In the mid-nineteenth century, a movement began
to codify the rules of civil procedure. The leader of this movement was
David Dudley Field, whose 1846 monograph entitled The Reorganization
of the Judiciary was instrumental in persuading the state of New York to
codify its laws. In 1848, the state legislature adopted a code of civil
procedure drafted by Field. Subsequently, the code was adopted, at least in
part, by more than half of the states. Even the British Parliament adopted
the code in 1873. A code of criminal procedure drafted by Field also
diffused widely among the states. In 1857, Field chaired a commission to
codify the entire body of substantive law in New York. Other states
followed suit, so that today every state has its laws codified. Thus, for
example, one wishing to research a point of criminal law in Indiana would
begin with Title 35 of the Indiana Code, which is entitled “Criminal Law
and Procedure.” Similarly, the laws of the United States are codified in the
United States Code. One interested in researching a question of federal
criminal law would begin with Title 18, “Crimes and Criminal Procedure.”
Of course, statutory provisions often require interpretation, which is the
function of the courts. Therefore, one must also examine any court
decisions interpreting the code provision in question.
ADMINISTRATIVE REGULATION
Although substantive law and procedural law are often modified by the
adoption of federal and state statutes, courts play an equally important role
in the development of law. Trial courts exist primarily to make factual
determinations, apply settled law to established facts, and impose
sanctions. In reviewing the decisions of trial courts, appellate courts must
interpret the federal and state constitutions and statutes. The federal and
state constitutions are replete with majestic phrases, such as “equal
protection of the laws” and “privileges and immunities,” which require
interpretation. That is, courts must define exactly what these grand phrases
mean within the context of particular legal disputes. Likewise, federal and
state statutes often use vague language like “affecting commerce” or
“reasonable likelihood.” Courts must assign meaning to these and a
multitude of other terms. Although the majority of states have abolished
all, or nearly all, common law crimes and replaced them with statutorily
defined offenses, the common law remains a valuable source of statutory
interpretation. This is because legislatures frequently use terms known to
the common law without defining such terms. For example, in proscribing
burglary, the legislature may use the term “curtilage” without defining it.
In such an instance, a court would look to the common law, which defined
the term to mean “an enclosed space surrounding a dwelling.”
In rendering interpretations of the law, appellate courts generally follow
precedent, in keeping with the common law doctrine of stare decisis.
However, in our rapidly changing society, courts often encounter
situations to which precedent arguably does not or should not apply. In
these situations, courts will sometimes deviate from or even overturn
precedent. Moreover, there are situations in which there is no applicable
precedent. When this occurs, the appellate courts will have the opportunity
to make new law. Therefore, appellate courts perform an important
lawmaking function as well as an error correction function. Today, any
serious student of law must follow developments in the decisional law,
that is, law as developed by courts in deciding cases.
Constitutional Law
The U.S. Constitution and the constitutions of the fifty states are more than
mere suggestions or exhortations. This is due primarily to the institution of
judicial review, through which federal and state courts can evaluate
government action and ordinary law against constitutional principles.
Consequently, we have an elaborate body of constitutional law, which
consists of the decisions of federal and state courts interpreting
constitutional provisions (see Chapter 3).
CONCLUSION
As we have seen, the foundations of American law have a rich cultural and
political history. The English common law, with its emphasis on
precedent, its requirement that the sovereign be subject to the law, and
with its eventual incorporation of the concept of equity, laid the foundation
for law and political institutions in America. The laws established by
sovereign authority, referred to as the positive law, would become the
essence of American law—yet the natural law and its concept of right and
wrong have also played an important role in affecting the application of
those laws.
Ultimately, the law has many dimensions. Today, American law is
based on the supremacy of written federal and state constitutions and laws
enacted pursuant to those constitutions by elected representatives. Yet in
allocating power among the branches of the government, the Framers of
the United States Constitution and the Bill of Rights painted with a broad
brush, allowing an independent judiciary the prerogative of interpreting
and applying the Constitution and laws enacted pursuant to it. Wisely, the
states have followed the same pattern. Thus, in America we have created a
government that is ruled by the majority but which remains protective of
the rights of the minority.
The framework of our national and state constitutions is sufficiently
flexible to allow the creation and implementation of laws, as well as the
delegation of power to administrative agencies that can enact regulations
made necessary as the United States has advanced from an agrarian
economy to an industrial and, more recently, a technological society. But
laws and regulations are words spread upon documents, and, no matter
how positive the law, it is the application of the law that affects society.
Congress and the state legislatures have the primary role in enacting laws.
No one, however, has succeeded in drafting a law that provides for every
contingency. Consequently, it becomes the function of independent federal
and state courts to interpret those laws with wisdom and, often, with
compassion. There will always be “gaps” in the law, and today, every
serious student of law and government must realize that the courts must at
times “make law” to fill in those gaps.
In studying the remaining chapters, it is important to observe how the
dynamic nature of our society is reflected in the laws that govern us. It is
also essential to remember that the United States Constitution, as
interpreted by the Supreme Court, is the law of the land. The Court holds
the power of judicial review over acts of Congress, acts of administrative
agencies, and certain decisions of the highest tribunals of the states, all of
which may, at times, contravene the Constitution. In the succeeding
chapters, we will examine how the Supreme Court’s actions have
effectively set national standards for administration of the criminal law,
and to a lesser extent, have affected the ongoing development of the civil
law.
KEY TERMS
ENDNOTES
CHAPTER OUTLINE
Introduction
Legislatures
Judicial Systems
The Role of the Chief Executive
Regulatory and Administrative Agencies
Law Enforcement Agencies
Prosecutorial Agencies
The Legal Profession
The Adversarial System of Justice
Alternative Dispute Resolution
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
LEGISLATURES
JUDICIAL SYSTEMS
Law evolves not only through the legislative process but also through a
process of judicial interpretation in the context of particular cases. These
cases may arise in either federal or state courts. The federal government
and each of the fifty state governments maintain their own systems of
courts. These systems include both trial courts and appellate courts.
Trial courts conduct civil and criminal trials and various types of hearings.
Trial courts make factual determinations and are the primary settlers of
legal disputes. Appellate courts hear appeals from the trial courts. The
appellate courts are not fact-finding bodies. Rather, their role is to review
the proceedings of lower courts, correct errors, and settle unresolved legal
issues.
Although Congress is authorized to regulate the appellate jurisdiction of
the Supreme Court, it rarely has used this power to curtail the Court’s
authority. Rather, Congress has facilitated the institutional development of
the Court by minimizing its mandatory appellate jurisdiction and thus
giving the Court control over its own agenda. Likewise, Congress has
delegated to the Court the authority to promulgate rules of procedure for
itself and the lower federal courts.32 Consequently, the Supreme Court is
nearly autonomous with respect to the determination of its decision-
making process.
SIDEBAR
Powers of Courts
Courts have the power to issue binding judgments in the civil and criminal
cases. They can sentence persons convicted of crimes to a variety of
punishments as allowed by law. They can award damages to persons who
are the victims of civil wrongs. They can issue injunctions and
restraining orders to prevent an injury from taking place or continuing.
Courts also have power to issue a number of orders, writs, and decrees to
effectuate their judgments. Common writs include
■ the writ of mandamus, requiring a judge or other public official to
perform a legal duty
■ the writ of habeas corpus, ordering a party to show cause for holding a
person in custody
■ the writ of prohibition, ordering a lower court not to take jurisdiction in
a particular case
■ the writ of certiorari, calling up the record of a lower court proceeding
so that it can be reviewed for error.
CASE IN POINT
COOPER v. AARON
358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5 (1958)
Opinion of the Court by The Chief Justice, Mr. Justice Black, Mr.
Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Burton, Mr.
Justice Clark, Mr. Justice Harlan, Mr. Justice Brennan, and Mr.
Justice Whittaker.
…Article 6 of the Constitution makes the Constitution the “supreme
Law of the Land.”…Chief Justice Marshall…declared in Marbury v.
Madison:…“It is emphatically the province and duty of the judicial
department to say what the law is.” This decision declared the basic
principle that the federal judiciary is supreme in the exposition of the
law of the Constitution, and that principle has ever since been respected
by this Court and the Country as a permanent and indispensable feature
of our constitutional system.…Every state legislator and executive and
judicial officer is solemnly committed by oath taken pursuant to Article
6, clause 3, “to support this Constitution.”…
No state legislator or executive or judicial officer can war against the
Constitution without violating his undertaking to support it. Chief
Justice Marshall spoke for a unanimous Court in saying that: “If the
legislatures of the several states may, at will, annul the judgments of the
courts of the United States, and destroy the rights acquired under those
judgments, the Constitution itself becomes a solemn mockery.…”…
In the United States today, there are nearly 40,000 law enforcement
agencies. Located within the executive branches of local, state, and federal
governments, these agencies have the power to investigate criminal
activity, to arrest suspects, and to detain arrested persons until their cases
come before the appropriate courts of law. These agencies also play an
important role in gathering evidence that prosecutors use in obtaining
convictions. In addition to officers’ testimony, these agencies provide
arrest reports, statements made by persons who file complaints, witnesses’
identification of perpetrators from lineups or mug shots, and many
different types of forensic evidence obtained from victims or from crime
scenes.
The role of law enforcement agencies goes well beyond investigating
crime, arresting suspects, and assisting prosecutors. Society expects these
agencies to prevent crimes from occurring, which is a much more
demanding assignment. It also expects these agencies, especially those at
the local level, to maintain public peace and order, a function that requires
discretion and diplomacy and, when required, force and coercion. And,
increasingly, under the rubric of community-oriented policing, law
enforcement agencies are being viewed as social services agencies that
must provide assistance to people in need and assist in resolving conflicts.
In carrying out their assigned functions, law enforcement agencies are
subject to the limitations of the federal and state constitutions, in particular
those clauses that protect citizens against unreasonable searches and
seizures, arbitrary arrests, prolonged detentions, coerced confessions, and
police brutality (see Chapter 10). In some instances, police misconduct
may constitute a tort (see Chapter 5); in other instances it may even be
criminal (see Chapter 4). In this country we expect law enforcement to
abide by the rule of law even as it enforces the law. Of course, this does
not always happen in practice, but when police violate the law, they, too,
are subject to sanctions. They can be disciplined by internal affairs
authorities within their agencies; they can be subject to civil suit and even
prosecuted for crimes. Such was the case with four Los Angeles police
officers who participated in the beating of Rodney King during an arrest in
1991. Although the officers were acquitted of criminal charges in state
court, a federal grand jury indicted them under the federal civil rights laws.
In 1993, a trial jury returned verdicts of guilty against two of the officers;
the other two were acquitted. The two convicted officers were sentenced to
thirty months in federal prison.52
Federal Agencies
There are more than sixty federal agencies that have law enforcement
authority, including the Environmental Protection Agency, the Internal
Revenue Service, the Bureau of Indian Affairs, the Federal Bureau of
Prisons, the Bureau of Postal Inspection, the Tennessee Valley Authority,
the National Park Service, the U.S. Forest Service, the U.S. Capitol Police,
the U.S. Fish and Wildlife Service, and the U.S. Mint. As of 2008, there
were approximately 12,000 federal law enforcement personnel empowered
to carry firearms and make arrests.53
The FBI
The Federal Bureau of Investigation is the primary agency empowered
to investigate violations of federal criminal laws. Located in the
Department of Justice, the FBI is by far the most powerful of the federal
law enforcement agencies, with broad powers to enforce the many
criminal laws adopted by Congress. The FBI is perhaps best known for its
Ten Most Wanted Fugitives program, which was inaugurated by the FBI’s
longtime Director, J. Edgar Hoover, in 1950. In the 1950s, the Ten Most
Wanted list mainly included bank robbers and car thieves. Today, it
features alleged terrorists, serial killers, international drug dealers, and
organized crime kingpins.
Under J. Edgar Hoover, who served as Director from 1924 until his
death in 1972, the FBI was often excessive in its zeal to enforce federal
law and protect national security. In the 1950s, the FBI concentrated on the
“Communist menace.” In the 1960s, it turned its attention to the more
radical elements of the antiwar movement. On numerous occasions, the
FBI was accused of exceeding the limits of the law and infringing the
rights of citizens. Today, the FBI operates under tighter legal constraints,
the result of congressional action, judicial decisions, and cultural changes
within the agency itself.
Although its history is somewhat checkered, the FBI generally is
regarded today as embodying the highest standards of professionalism in
the law enforcement community. The FBI currently employs nearly 25,000
people, including more than ten thousand Special Agents spread out over
fifty-six field offices in the United States and twenty-one foreign offices.
The FBI also uses the most sophisticated methods in crime prevention and
investigation. Its crime laboratory even assists state and federal law
enforcement agencies; thus, it figures prominently in the prosecution of
numerous crimes.
County Sheriffs
At the local level, we find both county and municipal law enforcement
agencies. Nearly every county in America has a sheriff. The institution of
sheriff dates from the Reign of Alfred the Great in ninth century England.
The kingdom was divided into “shires,” which eventually became
counties. The “shire reeve” was appointed by the King to represent the
King in local affairs. As the English legal system evolved, sheriffs came to
be responsible for arresting and detaining persons accused of crimes,
serving summonses and subpoenas, and maintaining jails and workhouses.
The institution of county sheriff was brought to America by the colonists.
Early on, sheriffs were appointed by governors. In the early nineteenth
century, states made this position elective, as it remains today. In some
areas, particularly the urban Northeast, many of the powers traditionally
exercised by sheriffs have been assumed by state or metropolitan police
forces. However, in the rest of the country, especially in the rural areas,
sheriffs (and their deputies) are the principal law enforcement agents at the
county level.
PROSECUTORIAL AGENCIES
Paralegals
Lawyers have long placed great responsibilities on their legal secretaries,
who often acquire considerable experience in assisting with the drafting of
legal documents and with the preparation of cases for settlement or trial.
With the increased specialization of the legal profession, in recent years
the paralegal (sometimes referred to as a legal assistant) has come on the
legal scene to work in conjunction with the attorney and the legal
secretary. A paralegal is one who has been educated in basic legal studies
and trained to assist attorneys in drafting legal documents and in preparing
cases. The duties and responsibilities of a paralegal depend on the practice
of the lawyer being assisted. For example, lawyers who specialize in
handling personal injury cases often rely on paralegals to prepare
suggested drafts of interrogatories to opposing parties, to assemble medical
reports, and to keep track of a client’s expenses that may be eligible for
reimbursement. In real estate practice, a paralegal may obtain appraisals
and title insurance commitments, handle property insurance transfers, draft
routine legal documents for review by the lawyer, and prepare closing
statements for transactions. Paralegal institutes now train individuals to
become professionals and, in some instances, use this text for instruction
in basic principles of law. In addition to the examples given, in probate,
employment discrimination, criminal law, and other specialized areas, the
paralegal has become an established professional in the delivery of legal
services.
Finding a Lawyer
Although more than two-thirds of lawyers engage in private practice, a
prospective client often finds it difficult to select a lawyer to serve the
client’s needs. Telephone books and local bar directories carry names and
increasingly indicate a lawyer’s area of practice. Yet, as is the case in
selecting a physician, one often must depend on a referral. Historically,
advertising by lawyers was prohibited, and many members of the legal
profession are disdainful of advertising, believing it to be unprofessional.
Nonetheless, truthful advertising is permitted and can enable a prospective
client to become informed about the qualifications and areas of practice of
lawyers without the necessity of making repetitive calls to law offices. In
some instances, membership organizations, prepaid legal insurance, and
group legal plans assist in making referrals.
CASE IN POINT
Professional Responsibility
Professional responsibility of lawyers has become a major issue. Lawyers
are regulated by codes of professional conduct often patterned after the
Model Code of Professional Conduct promulgated by the American Bar
Association (ABA), a voluntary association of lawyers. The Model Code
has no legal effect because the ABA is a private organization, but many
state legislatures and the highest court of the states have adopted the ABA
Model Code with some variations. Because lawyers are deemed to be
“officers of the court,” judges exercise inherent power to discipline them
and even hold them in contempt of court for violations of ethical standards
in the conduct of litigation.
Among the ethical concerns these codes of professional responsibility
address are standards to be abided by lawyers concerning their duties to
■ charge reasonable fees (often with limitations on contingency fees)
■ provide a client competent representation
■ act with reasonable diligence in handling a client’s interests
■ be loyal to the client
■ keep the client advised of the progress of legal matters undertaken
■ avoid conflicts of interest
■ exercise candor in dealings with courts and agencies.
Bar associations customarily provide a mechanism for clients to file a
grievance against an attorney whom the client believes to have violated the
standards of professional responsibility. Grievances that have merit result
in disciplinary action that ranges from a reprimand to suspension or
disbarment. Moreover, a client may institute a malpractice suit against an
attorney for misconduct or negligence in handling legal matters. If
successful, the client may recover damages. Many attorneys carry liability
insurance to protect both the client and lawyer. Finally, some bar
associations have established client security funds to reimburse a client
who suffers a financial loss due to a lawyer’s misconduct.
The American court system follows the historic adversarial system this
nation inherited from the English common law. Unlike the system that
prevails in civil law countries (see Chapter 1), the adversarial system
separates the function of gathering evidence from the judge’s role in
pretrial and trial processes. The theory of the common law approach is that
a judge’s not having participated in the investigative process assures the
parties that their case will be heard before a neutral decision-maker.
In the adversary process, the competing parties develop the evidence
through investigation. Parties, usually through their lawyers, present their
evidence and arguments in support of their positions and seek to
demonstrate the weakness of the other side of the case. This affords each
party an opportunity to have a lawyer-conducted examination and cross-
examination of witnesses, as well as challenges to the evidence and
arguments presented by the opposing side. An important aspect of the
adversarial system is the development of detailed procedural rules that a
judge must apply impartially irrespective of the merits of a party’s case.
Juries
Juries are not a necessary part of the legal system in civil law countries
(see Chapter 1); however, in some civil law countries lay judges assist the
professional judge in the decision-making processes. And although a jury
is not essential to the functioning of the adversarial system, in America it
is a vital component of the system. Juries are deeply rooted in Anglo-
American tradition. In the late eighteenth century, William Blackstone
called the jury a “strong barrier between the liberties of the people and the
prerogative of the crown.” 69 Today, Americans continue to regard the jury
as an important check on government. Even so, some Americans find
frustration in the inconvenience of jury duty, and others are occasionally
outraged by jury verdicts that seem unjust or even inexplicable. Famous
examples of such instances include O.J. Simpson’s 1995 acquittal on
double murder charges, and Casey Anthony’s 2011 acquittal on charges
related to the death of her daughter. Nevertheless, support for the
institution of the jury remains strong.
In America, juries are selected from a cross-section of the adult
community without regard to educational attainments. Thus, a college
professor may be seated next to an elementary school dropout. To ensure
an impartial jury, parties have the right to challenge jurors as to their basic
qualifications to render a fair and impartial verdict. Although a prospective
juror is not usually disqualified for having heard or read about a case, a
juror who has formed an opinion about a pending case or who may have an
interest in the litigation will be disqualified from serving. Juries decide the
facts in a case and must apply the law as instructed by the presiding judge.
Historically, a juror was not permitted to ask questions, only to hear the
evidence presented. The trend is to allow jurors to ask the presiding judge
to have lawyers pose their questions to a witness. Where this is permitted,
the judge has broad discretion in such matters. We explain the juror
selection process and jurors’ functions in the decision-making process in
later chapters.
Trial Procedures
We also explain the procedures in civil and criminal trials in later chapters.
Many of these adversary processes, such as depositions and other
discovery matters, occur during pretrial phases of litigation, but for now it
is helpful to become acquainted with the basic steps at trial.
1. Opening Statements: The plaintiff’s attorney or the prosecutor and
the defendant’s attorney outline their theories of the case and the
evidence to be presented.
2. Direct Examination by Plaintiff or Prosecutor: The plaintiff’s
attorney or prosecutor questions witnesses and presents
documentary and physical evidence.
3. Cross-Examination by Defense: The defendant’s attorney may
cross-examine the plaintiff’s or prosecutor’s witnesses in an
attempt to discredit their testimony.
4. Motions by Defense: The judge rules on any defense motions to
dismiss the plaintiff’s case or to grant acquittal and discharge the
defendant.
5. Direct Examination by Defense: The defendant’s attorney proceeds
along the lines outlined in 2 above.
6. Cross-Examination by the Plaintiff or Prosecutor: The plaintiff or
prosecutor proceeds as outlined in 3 above.
7. Closing Arguments: The plaintiff or prosecutor and the defense
attorney present their closing arguments summarizing the evidence
and seeking to persuade the jury (or the court in a non-jury trial) of
their respective positions.
8. Jury Instructions: In a jury trial, the court instructs the jury as to the
law applicable to the case and their responsibilities in arriving at a
verdict.
9. Verdict and Judgment: The jury, returns its verdict and the court
subsequently enters a judgment in favor of the prevailing party in a
civil case or enters a judgment of conviction and proceeds to
sentence the defendant or to discharge the defendant if acquitted.
In a non-jury case, the court makes a disposition of the case and
enters judgment accordingly.
CONCLUSION
The American legal system is extremely complicated, due in large part to
federalism: the division of political and legal authority among one national
government and fifty state governments. No two sets of state laws are
identical. Even where states have emulated laws of other states, there are
likely to be nuances. Further, no two state court systems are exactly alike.
Even those that are superficially similar are likely to have significant
jurisdictional, procedural, and administrative differences. And, of course,
the federal system is quite unique in many respects.
The American legal system depends on the contributions of many
different actors, most notably the legislators who write statutes, the chief
executives and other executive officials who enforce them, and the judges
who apply them to specific cases. The system also depends on litigants,
people who are willing to subject their disputes to courts of law for orderly
and peaceful resolution, as well as the lawyers who help litigants navigate
a legal maze that can be, at times, maddening. But there are many other
actors who are essential to the functioning of the legal system, including
legislative staffers, law clerks, research aides, bailiffs, sheriffs, jurors,
stenographers, police officers, customs agents, postal inspectors, marshals,
constables, corrections officers, secretaries, paralegals, and many more.
Ultimately, though, the American legal system depends on the faith and
support of average Americans who are asked to believe that our legal
system represents a sincere effort to achieve the rule of law in this country.
KEY TERMS
administrative agencies
administrative law
adversarial system
alternative dispute resolution
appeals of right
appellate courts
appellate jurisdiction
arbitration
Attorney General
Bureau of Alcohol, Tobacco and Firearms
civil contempt
civil suits
collegial courts
community-oriented policing
concurrent jurisdiction
concurrent powers
Congress
contempt
Court of Federal Claims
Court of International Trade
court of last resort
Court of Veterans’ Appeals
court-martial proceedings
courts-martial
criminal contempt
criminal prosecutions
damages
delegates
Department of Justice
diversity of citizenship jurisdiction
enumerated powers
Federal Bureau of Investigation
federal magistrate judges
federal question jurisdiction
federalism
forensic evidence
impeachment
implied powers
independent agencies
independent counsel
injunctions
intermediate appellate courts
judicial accountability
judicial disciplinary commissions
judicial independence
judicial review
law clerks
law enforcement agencies
legislators
legislature
Manual for Courts-Martial
mediation
Missouri Plan
negotiation
opinions
original jurisdiction
oversight
paralegal
plea bargaining
police power
professional responsibility
prosecutorial discretion
prosecutors
regulatory agencies
restraining orders
rules of practice
rules of procedure
Secret Service
session laws
sheriff
state supreme court
state’s attorneys
Tax Court
tort claims
trial
trial courts
trustees
unified bar
Uniform Code of Military Justice
United States Attorneys
United States Court of Appeals for the Armed Forces
United States Courts of Appeals
United States District Courts
United States Supreme Court
U.S. Code
veto
writ of certiorari
writ of habeas corpus
writ of mandamus
writ of prohibition
ENDNOTES
CHAPTER OUTLINE
Introduction
Judicial Review
Legislative Power
Executive Power
Separation of Powers
Federalism
Civil Rights and Liberties
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
The federal government and each of the fifty state governments are based
on written constitutions. Each of these constitutions sets forth the structure
and powers of government as well as the rights of citizens. The term
“constitutional law” refers to the judicial interpretation of these
constitutions in the context of legal disputes. These disputes arise in both
state and federal courts. Each of the fifty states has its own court system,
which is responsible for interpreting its own state constitution and, in some
instances, the federal constitution. Because of the variations in state
constitutional law, this chapter focuses on federal constitutional law. It is
important to understand, however, that because the federal constitution is
the “supreme law of the land,” state constitutions (as well as statutes and
local ordinances) must conform to the principles of the U.S. Constitution.
All federal courts interpret the U.S. Constitution, but because the U.S.
Supreme Court sits at the apex of the federal judicial hierarchy, the
Supreme Court is the most important developer of constitutional law.
Constitutional law has two basic components: the institutional
component and the civil rights/civil liberties component. The former
component embraces issues of congressional, presidential, and judicial
power as well as questions of state versus national authority and problems
of interstate relations. The latter component involves claims of personal
freedom and legal and political equality, usually asserted in opposition to
exercises of governmental power.
JUDICIAL REVIEW
In its most general sense, judicial review refers to the authority of a court
of law to review a particular legal issue. In constitutional law, the term has
more specific meaning. It refers to the power of courts to declare
government actions invalid if the actions are determined to be contrary to
constitutional principles. The U.S. Constitution does not explicitly grant
the power of judicial review. However, in Marbury v. Madison (1803),1
the Supreme Court assumed the power to strike down unconstitutional
federal statutes. Later, the Court extended the scope of judicial review to
encompass executive actions2 as well as state statutes.3 Today, all actions
of government, from the conduct of police officers on the street to orders
issued by the President, are subject to judicial review. Judicial review has
become a bedrock principle of the American legal and political systems. It
is generally regarded as essential to preserve the ideal of constitutional
supremacy.
Constitutional Interpretation
The exercise of judicial review requires courts to interpret the
Constitution. Whenever possible, courts rely on the plain meaning of the
text, but the meaning of many constitutional provisions is not self-evident.
Accordingly, courts often seek to discern the intentions of the Framers of
the Constitution. In determining original intent, courts often rely on the
debate that took place during the Constitutional Convention in 1787. They
also look to essays by James Madison, Alexander Hamilton, and John Jay
written during the debate over ratification of the Constitution and later
published as The Federalist Papers.
OPINION OF THE COURT
MARBURY v. MADISON
1 Cranch (5 U.S.) 137, 2 L. Ed. 60 (1803)
Mr. Chief Justice Marshall delivered the opinion of the Court.
…The Constitution is either a superior paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and,
like other acts, is alterable when the legislature shall please to alter it. If
the former part of the alternative be true, then a legislative act, contrary
to the Constitution, is not law; if the latter part be true, then written
constitutions are absurd attempts, on the part of the people, to limit a
power, in its own nature, illimitable.
Certainly, all those who have framed written constitutions
contemplate them as forming the fundamental and paramount law of the
nation, and consequently, the theory of every such government must be,
that an act of the legislature, repugnant to the Constitution, is void.…
If an act of the legislature, repugnant to the Constitution, is void,
does it notwithstanding its invalidity, bind the courts, and oblige them
to give it effect? Or, in other words, though it be not law, does it
constitute a rule as operative as if it was a law? This would be to
overthrow, in fact, what was established in theory; and would seem, at
first view, an absurdity too gross to be insisted on.…
It is, emphatically, the province and duty of the judicial department,
to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict
with each other, the courts must decide on the operation of each.
So, if a law be in opposition to the Constitution; if both the law and
the Constitution apply to a particular case, so that the court must either
decide that case, conformable to the law, disregarding the Constitution;
or conformable to the Constitution, disregarding the law; the court must
determine which of these conflicting rules governs the case: this is of
the very essence of judicial duty.…
Precedent
In the common law tradition, courts rely on precedent, which means that
they generally follow what courts have said and done in the past. This
doctrine of stare decisis, which literally means “to stand by things
decided,” applies to constitutional law as well. Courts tend to interpret
provisions of the Constitution in the same fashion that they have been
interpreted by courts in previous cases. But the doctrine of precedent is by
no means absolute, and courts will at times overturn or abandon precedent
in constitutional cases. As the Supreme Court has observed,
Adhering to precedent “is usually the wise policy, because in most matters it is more
important that the applicable rule of law be settled than it be settled right.”…
Nevertheless, when governing decisions are unworkable or are badly reasoned, “this
Court has never felt constrained to follow precedent.”…Stare decisis is not an inexorable
command; rather, it “is a principle of policy and not a mechanical formula of adherence to
the latest decision.”…This is particularly true in constitutional cases, because in such
cases “correction through legislative action is practically impossible.” 4
Limiting Doctrines
Because judicial review is inherently counter-majoritarian, and because the
exercise of judicial review can produce intense political conflict, courts
tend to be cautious in exercising this authority. This caution is often
referred to as judicial self-restraint, whereas the absence of caution is
dubbed judicial activism. Judicial self-restraint is manifested in a number
of doctrines limiting the exercise of judicial review. Judicial activism
consists largely in ignoring or circumventing these limiting doctrines.
Perhaps the most fundamental limiting doctrine is the presumption of
constitutionality. Under this doctrine, courts will presume a challenged
statute or governmental action is valid until it is demonstrated otherwise.
In other words, the party bringing the constitutional challenge carries the
burden of persuasion. This doctrine is based on an appreciation for the
counter-majoritarian character of judicial review and a fundamental
respect for the legislative bodies in a democratic system. However, the
Supreme Court has modified the doctrine of presumptive constitutionality
with respect to laws discriminating against citizens on grounds of race or
national origin. Such laws are now viewed as inherently suspect and are
subjected to strict judicial scrutiny.7 Similarly, laws abridging
fundamental rights such as freedom of speech are not afforded the
traditional presumption of validity either.8
Another fundamental limiting doctrine is that of standing. A party
seeking judicial review of a law must have standing to challenge that law,
which means that the operation of the law must produce a substantial
injury to the rights of the party seeking review. For example, a federal
taxpayer who believes that a particular federal program is unconstitutional
does not normally have standing to challenge the law on which the
program is based.9 Yet a person who is prosecuted criminally under an
arguably unconstitutional statute certainly has standing to challenge that
statute.10 In many instances, one who is likely to be prosecuted or whose
activities are chilled or deterred by the existence of a statute can bring a
civil suit seeking to enjoin enforcement of the law. Such was the case in
Roe v. Wade (1973),11 where a woman facing an unwanted pregnancy
brought suit in federal court to challenge the constitutionality of a Texas
law criminalizing most abortions. The Supreme Court’s decision to strike
down the Texas law, and thus effectively legalize abortion throughout the
country, was perhaps the most controversial exercise of judicial review in
the modern age.
In a concurring opinion in Ashwander v. Tennessee Valley Authority
(1936),12 Associate Justice Louis D. Brandeis set forth the basic limiting
doctrines observed by courts in the exercise of judicial review:
1. The Court will not pass upon the constitutionality of legislation in a
friendly, nonadversary, proceeding, declining because to decide
such questions “is legitimate only in the last resort, and as a
necessity in the determination of real, earnest, and vital
controversy between individuals. It never was the thought that, by
means of a friendly suit, a party beaten in the legislature could
transfer to the courts an inquiry as to the constitutionality of the
legislative act.”
2. The Court will not “anticipate a question of constitutional law in
advance of the necessity of deciding it.”
3. The Court will not “formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.”
4. The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some other
ground upon which the case may be disposed of.…Thus, if a case
can be decided on either of two grounds, one involving a
constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter.
5. The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its
operation.
6. The Court will not pass upon the constitutionality of a statute at the
instance of one who has availed himself of its benefits.
7. “When the validity of an act of the Congress is drawn in question,
and even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question
may be avoided.”
The so-called Ashwander rules obviously limit the exercise of judicial
review and, accordingly, reduce the potential for political conflict flowing
from an ill-advised or untimely use of judicial power. Yet it must be
pointed out that the Ashwander rules are frequently honored in the breach.
In the modern era, courts tend to be less cautious in their exercise of
judicial review. Under Chief Justice Earl Warren (1954-1969), the Court
was particularly active in its use of judicial review. The Warren Court
rendered numerous decisions that contradicted public opinion and aroused
the ire of politicians at all levels of government. Of course, because the
courts function within the constitutional system of checks and balances,
there are a number of external constraints on judicial power. These
constraints prevent the courts from straying too far from mainstream
opinion.
Restriction of the Court’s Jurisdiction
The Supreme Court’s original jurisdiction is fixed by Article III of the
Constitution. Marbury v. Madison made clear that Congress may not alter
the Court’s original jurisdiction. Congress may, however, authorize lower
federal courts to share the Court’s original jurisdiction. The Supreme
Court’s appellate jurisdiction is another matter. Article III indicates that
the Court “…shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the Congress shall
make.”
On only one occasion has Congress significantly limited the appellate
jurisdiction of the Supreme Court. It happened during the turbulent
Reconstruction period that followed the Civil War. Congress restricted the
Court’s appellate jurisdiction in a certain category of cases to prevent the
Court from ruling on the constitutionality of the Reconstruction program.
In Ex Parte McCardle (1869), the Court acquiesced in the curtailment of
its jurisdiction, thus buttressing congressional control of the Court.13
Congress has, on several occasions, debated limitations on the Supreme
Court’s appellate jurisdiction. In the late 1950s, there was a movement in
Congress to deny the Supreme Court appellate jurisdiction in cases
involving national security, a reaction to Warren Court decisions
protecting the rights of suspected Communists. Although the major
legislative proposals were narrowly defeated, the Court retreated from
some of its most controversial decisions.14
Does Ex Parte McCardle suggest that Congress could completely
abolish the Court’s appellate jurisdiction? Whatever the answer might
have been in 1869, the answer today would certainly be “no.” It is highly
unlikely that Congress would ever undertake such a radical measure, but if
it did, the Supreme Court would almost certainly declare the act invalid.
Because the Court’s major decision-making role is a function of its
appellate jurisdiction, any serious curtailment of that jurisdiction would in
effect deny the Court the ability to perform its essential function in the
constitutional system.
In the early 1980s, a flurry of activity in Congress was aimed at
restricting Supreme Court jurisdiction to hear appeals in cases dealing with
abortion and school prayer. A number of proposals surfaced, but none
were adopted. The constitutionality of such proposals is open to question,
in that they might be construed as undermining the Court’s ability to
protect fundamental constitutional rights. The question remains academic,
though, because Congress has not enacted such a restriction on the Court.
Denial of jurisdiction as a limiting strategy depends greatly on the
substantive issue-area involved, what the Court has done in the area thus
far, and what it is likely to do in the future. As retaliation against the Court
for one controversial decision, the curtailment of appellate jurisdiction is
not likely to be an effective strategy.
Constitutional Amendment
From time to time Congress will attempt to overturn, evade, or modify a
Supreme Court decision through the enactment of legislation. The Court
will generally not permit this, as it reserves to itself the final word in
matters of constitutional interpretation.15 The only conclusive means of
overruling a Supreme Court or any federal court decision is through
adoption of a constitutional amendment. If Congress disapproves of a
particular judicial decision, it may be able to override that decision through
a simple statute, but only if the decision was based on statutory
interpretation. It is much more difficult to override a federal court decision
that is based on the United States Constitution. Congress alone cannot do
so. Ever since Marbury v. Madison, our system of government has
conceded to the courts the power to authoritatively interpret the Nation’s
charter. A Supreme Court decision interpreting the Constitution is
therefore final unless and until one of two things occurs. First, the Court
may overrule itself in a later case. This has happened numerous times
historically. The only other way to overturn a constitutional decision of the
Supreme Court is through constitutional amendment. This is not easily
done, since Article V of the Constitution prescribes a two-thirds majority
in both houses of Congress followed by ratification by three-fourths of the
states. Yet on at least four occasions in our history specific Supreme Court
decisions have been overturned in this manner.16
Over the years, numerous unsuccessful attempts have been made to
overrule Supreme Court decisions through constitutional amendments. In
1983, an amendment providing that “[t]he right to an abortion is not
secured by this Constitution,” obviously aimed at Roe v. Wade, failed to
pass the Senate by only one vote. The most recent example of a proposed
constitutional amendment aimed at a Supreme Court decision dealt with
the emotional public issue of flag burning. In 1989, the Court held that
burning the American flag as part of a public protest was a form of
symbolic speech protected by the First Amendment.17 Many, including
President George H. W. Bush, called on Congress to overrule the Court.
Congress considered an amendment that read, “The Congress and the
States shall have power to prohibit the physical desecration of the flag of
the United States.” Votes were taken in both houses, but neither achieved
the necessary two-thirds majority. As recently as 1997, the U.S. House of
Representatives passed another proposed constitutional amendment
designed to overrule the Court’s flag-burning decisions. But this measure
was not approved by the requisite two-thirds vote in the Senate.
LEGISLATIVE POWER
Having discussed the power of judicial review and its exercise under the
system of checks and balances, we turn now to the substance of
constitutional law, beginning with the interpretation of Article I, which
defines the legislative power. Article I, Section 1 of the Constitution
provides that “[a]ll legislative powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and a House
of Representatives.” Article I delineates the composition of both houses of
Congress, indicates minimal requirements for members, specifies how
members are to be chosen, grants broad authority to each house to
determine its own procedures, and extends certain privileges to members
of Congress. Article I also defines the legislative powers of Congress,
although grants of congressional authority are even found elsewhere in the
Constitution.
Enumerated Powers
Most of the enumerated powers of Congress are located in Article I,
Section 8, which consists of seventeen brief paragraphs enumerating
specific powers followed by a general clause permitting Congress to
“make all laws which shall be necessary and proper for carrying into
Execution the foregoing powers, and all other powers vested by this
Constitution in the Government of the United States.…” The powers
enumerated in Article I, Section 8 authorize Congress to lay and collect
taxes, borrow money, regulate commerce among the states, control
immigration and naturalization, regulate bankruptcy, coin money, fix
standards of weights and measures, establish post offices and post roads,
grant patents and copyrights, establish tribunals “inferior to the Supreme
Court,” declare war, raise and support an army and a navy, regulate the
militia when called into service, and perform other more restricted
functions.
In reading Article I, Section 8, one will note that, although Congress is
empowered to “provide for the common defense and general welfare of the
United States,” there is no general grant of police power to Congress.
Consequently, the power to make any and all laws deemed necessary for
the protection of the public health, safety, welfare, and morals is reserved
to the states under the Tenth Amendment. Yet Congress exercises
substantial legislative power by linking laws to the specific powers
contained in Section 8. For example, Congress is not empowered to
prohibit prostitution per se, but it can make it a crime to transport persons
across state lines for “immoral purposes” by drawing on its broad power to
regulate “commerce among the states.” 19 Over the years, the power to
regulate interstate commerce has been invoked to justify a wide range of
federal legislation, including laws relating to telecommunications, the
natural environment, civil rights, and organized crime. One is tempted to
argue that Congress has effectively acquired a police power through its
reliance on the Commerce Clause and the courts’ willingness to interpret
the Clause liberally.
However, in 1995, the Supreme Court held that the Commerce Clause is
not boundless and does not confer a general police power on Congress. In
United States v. Lopez, the Court struck down a federal law making it a
crime to possess a firearm in close proximity to a school.20 Noting that
most states already had similar prohibitions, the Court held that the mere
act of possessing a firearm was not sufficiently related to interstate
commerce to permit Congress to reach this activity. In a similar vein, the
Court in United States v. Morrison (2000) struck down the Violence
Against Women Act of 1994 on the ground that Congress had exceeded its
power under the Commerce Clause.21 And in National Federation of
Independent Business v. Sebelius (2012), the Court said that the Commerce
Clause does not empower Congress to require Americans to purchase
health insurance (although the Court ultimately upheld this mandate by
relying on Congress’ broad taxing power).22 Despite the Supreme Court’s
opinions in Lopez, Morrison, and Sebelius, Congress’s powers under the
Commerce Clause remain broad and formidable.
CASE IN POINT
Although Congress’ legislative powers are very broad, they are not
without limits. A test of those limits came when Congress enacted the
Patient Protection and Affordable Care Act of 2010. Embodying President
Barack Obama’s campaign promise to reform the nation’s health care
system, the Act sought to expand health insurance coverage to millions of
uninsured Americans. The complicated bill, which spanned some 2,700
pages, expanded eligibility for Medicaid, the nation’s health care system
for the poor, prohibited insurance companies from rejecting applicants
based on pre-existing medical conditions, and allowed children to remain
on their parents’ health insurance plans until age 26. Most controversially,
the law mandated that all Americans obtain health insurance, either
through the marketplace or a government program. Those who failed to
obtain the required insurance would pay a fine. The idea was to bring all
Americans, including the young and healthy ones, into the risk pool and
thereby reduce costs for insurers and, ultimately, the insured.
Conservatives and Republicans railed against the new law, which they
referred to caustically as “Obamacare,” claiming that it represented
nothing short of a government takeover of the nation’s health care system.
President Obama eventually embraced the term “Obamacare,” and said
that the law shows “the President cares.” By June of 2012, Obamacare had
become a major issue in the 2012 presidential election. It also had become
a major constitutional question for the judiciary.
The mandate that individuals obtain health care coverage was at the
heart of a case that came before the U.S. Supreme Court in the spring of
2012. The government defended the mandate as a regulation of interstate
commerce under Article I, Section 8 of the Constitution. On the other side,
those challenging the mandate, including the National Federation of
Independent Business, argued that it was an unprecedented exercise of
federal power and transcended regulation of commerce. On June 28, 2012,
the U.S. Supreme Court announced its decision in National Federation of
Independent Business v. Sebelius. To many people’s surprise, the Court
upheld the mandate, not as a regulation of commerce, but rather as an
exercise of Congress’ broad taxing power.
President Obama hailed the Court’s decision, which upheld his signature
legislative achievement, while Republicans vowed to seek repeal of the
entire law by Congress. The deciding vote in National Federation of
Independent Business v. Sebelius was cast by Chief Justice John Roberts,
who also wrote the majority opinion. In a long opinion, Roberts rejected
the idea that the mandate could be construed as a regulation of interstate
commerce, but nevertheless concluded that the “requirement that certain
individuals pay a financial penalty for not obtaining health insurance may
reasonably be characterized as a tax.” He also noted that “[b]ecause the
Constitution permits such a tax, it is not our role to forbid it, or to pass
upon its wisdom or fairness.” Justices Antonin Scalia, Anthony Kennedy,
Samuel Alito, and Clarence Thomas dissented, observed that the “holding
that the Individual Mandate is a tax raises a difficult constitutional
question… that the Court resolves with inadequate deliberation.”
The fact that Chief Justice Roberts, a Republican appointed to the Court
by President George W. Bush, cast the deciding vote upholding the
Affordable Care Act helped reinforce the idea that the Supreme Court is
supposed to transcend partisan politics in its interpretation of the laws and
the Constitution.
OPINION OF THE COURT
McCULLOCH v. MARYLAND
4 Wheat. (17 U.S.) 316, 4 L. Ed. 579 (1819)
Mr. Chief Justice Marshall delivered the opinion of the Court.
…We admit, as all must admit, that the powers of the government are
limited, and that its limits are not to be transcended. But we think the
sound construction of the Constitution must allow to the national
legislature that discretion, with respect to the means by which the
powers it confers are to be carried into execution, which will enable the
body to perform the high duties assigned to it, in the manner most
beneficial to the people. Let the end be legitimate, let it be within the
scope of the Constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the Constitution, are constitutional.
…Should Congress, in the execution of its powers, adopt measures
which are prohibited by the Constitution; or should Congress, under the
pretext of executing its powers pass laws for the accomplishment of
objects not entrusted to the government, it would become the painful
duty of this tribunal, should a case requiring such a decision come
before it, to say that such an act was not the law of the land. But where
the law is not prohibited, and is really calculated to effect any of the
objects entrusted to the government, to undertake here to inquire into
the degree of its necessity, would be to pass the line which
circumscribes the judicial department, and to tread on legislative
ground. This court disclaims all pretensions to such a power.…
Implied Powers
It is obvious that Congress today exercises far more powers than are
specifically enumerated in the Constitution. Over the years, the American
people have come to expect, even demand, as much. Yet arguably,
Congress has remained within the scope of powers delegated to it by the
Constitution. The linchpin of this argument is the Necessary and Proper
Clause (Article I, Section 8, clause 18) and the related doctrine of implied
powers. In fact, the Necessary and Proper Clause is today, along with the
Commerce, Taxing, and Spending Clauses, one of the key sources of
congressional power.
The doctrine of implied powers was firmly established in the landmark
case of McCulloch v. Maryland (1819).23 The doctrine holds that Congress
may enact laws that are reasonably related to its enumerated powers, as
long as Congress does not violate a specific prohibition of the
Constitution. Under the doctrine of implied powers, scarcely any area
exists in which Congress is absolutely barred from acting, since most
problems have a conceivable relationship to the broad powers and
objectives contained in the Constitution.
Congress has many sources of constitutional authority. Some of these
are quite explicit, as the list of enumerated powers in Article I, Section 8
makes clear. Others are implicit, open-ended, and subject to no complete
or conclusive definition. These implied powers are fully recognized in the
Necessary and Proper Clause and in the enforcement provisions of several
constitutional amendments, most notably the Thirteenth, Fourteenth, and
Fifteenth. Within this broad range of explicit and implicit powers,
Congress has ample latitude to address the major problems, needs, and
goals of the Nation, as perceived by succeeding generations of Americans
during two centuries of constitutional history.
EXECUTIVE POWER
Article II, Section 1 of the Constitution provides that the “executive power
shall be vested in a President of the United States.” Sections 2 and 3
enumerate specific powers granted to the President. These include
authority to appoint judges and ambassadors, veto legislation, call
Congress into special session, grant pardons, and serve as commander-in-
chief of the armed forces. Each of these designated powers is obviously a
part of executive power, but that general term is not defined in Article II.
Thus, it is debatable whether the opening statement of Article II was
intended to be merely a summary of powers later enumerated in the Article
or, as Alexander Hamilton argued, an independent grant of power to the
President.
For the most part, Hamilton’s argument has prevailed, as the Supreme
Court generally has acquiesced in the expansion of executive authority
beyond the powers enumerated in Article II. It would be naive to expect
the Court to stem the flow of power into the executive branch, given the
fundamental economic, social, technological, and military needs that have
led to concentration of power in the presidency. There are cases in which
the Court has invalidated particular exercises of executive power—for
example, the Steel Seizure Case in 195226 and the Watergate Tapes
Decision of 1974,27 but the overall trend has been to legitimize broad
presidential power as the Supreme Court did in 1936 when it placed its
stamp of approval on presidential primacy in the realm of foreign affairs,
referring to the President as the “sole organ of the federal government in
the field of international relations.” 28
War Powers
Perhaps the most contentious aspect of presidential power is the power to
make war. The Constitution recognizes the President as commander-in-
chief, but it does not define this term. The prevailing understanding of the
term at the time the Constitution was ratified was that the President would
be “first among generals, first among admirals” during a war that Congress
had declared. Few thought that the power of commander-in-chief included
the power to make war absent prior congressional authorization. But
presidents going back to Thomas Jefferson have asserted the power to use
limited military force abroad prior to approval from Congress. In The Prize
Cases (1863),29 the Supreme Court lent credence to this position when it
upheld President Lincoln’s order imposing a naval blockade on southern
ports at the outset of the Civil War. Congress never declared war on the
South, because to do so would have been a de facto recognition of the
Confederacy as a sovereign government.
The modern tendency has been for presidents to conduct major wars
based on resolutions authorizing the use of force rather than full
declarations of war. In fact, the last declared war was World War II. For
example, President George H.W. Bush won congressional approval before
launching operation Desert Storm in 1991. Similarly, George W. Bush
obtained congressional authorization before commencing operation Iraqi
Freedom in 2003. As the latter operation evolved into an ongoing military
occupation and counter-insurgency, public support for the enterprise
declined, leading many in Congress to call for the termination of funds to
support the operation. This illustrates why the power of the purse is
Congress’s most effective means of controlling a President’s ability to
sustain a long war effort in the face of public disapproval.
CASE IN POINT
This case stems from President Nixon’s refusal to comply with a subpoena
duces tecum (an order to produce documents or other physical evidence)
obtained by Watergate Special Prosecutor Leon Jaworski. The subpoena
directed President Nixon to produce the infamous Watergate Tapes on
which were recorded conversations that took place in the Oval Office
between President Nixon and his advisers. In refusing to honor the
subpoena, President Nixon argued that the tapes were protected by
executive privilege. Indeed, the President’s counsel asserted that executive
privilege is absolute and not subject to subpoena. The United States
District Court for the District of Columbia, which had issued the subpoena,
rejected the President’s arguments and ordered him to produce the tapes.
The President appealed to the Court of Appeals, but before the Circuit
Court could act the Supreme Court granted Leon Jaworski’s petition for
certiorari, citing great public importance of the matter and the need for
prompt resolution of the conflict. On the merits, the Supreme Court ruled
in favor of the Special Prosecutor. Writing for a unanimous Court, Chief
Justice Warren E. Burger (a Nixon appointee) concluded that “when the
ground for asserting privilege as to subpoenaed materials sought for use in
a criminal trial is based only on the generalized interest in confidentiality,
it cannot prevail over the fundamental demands of due process of law in
the fair administration of criminal justice.” President Nixon reluctantly
complied with the Supreme Court’s decision, surrendered the
incriminating tapes, and resigned as President. United States v. Nixon
generally is regarded as a vindication of the rule of law over political
power and a fundamental reaffirmation of our constitutional democracy.
SEPARATION OF POWERS
FEDERALISM
The opposing doctrine, that states could “nullify” actions of the federal
government they believed to be unconstitutional, was first proposed by
Thomas Jefferson in the Kentucky Resolution of 1798. Although the
doctrine of nullification failed to find support in the Supreme Court, it was
extended in the mid-nineteenth century by southern states that claimed the
right to secede from the Union. In Texas v. White (1869), handed down
four years after General Robert E. Lee’s surrender at Appomattox, the
Supreme Court rejected the idea that states could secede from the Union.
The Civil War, the Industrial Revolution, the Great Depression, and two
world wars had a profound impact on American political culture. In the
twentieth century, people came to think of themselves first and foremost as
Americans. Increasingly, they looked to the national government to solve
problems the state and local governments could not, or would not, address.
This cultural change produced a corresponding change in constitutional
law. Whereas in the late nineteenth and early twentieth centuries the
Supreme Court adopted a conservative model known as dual
federalism,38 in the wake of the Great Depression the Court embraced a
more progressive model of federalism in which the national government
was clearly recognized as the paramount authority.39
CASE IN POINT
Over the two centuries since the republic was founded, the relationship
between the national government and the states has changed dramatically.
Today, there is no question of the dominance of the national government
in most areas of policymaking. There is also considerable interaction
between federal and state agencies, an arrangement often referred to as
cooperative federalism. In the contemporary age, the federal government
often uses its superior fiscal resources to prod the states into adopting
policies they might not otherwise adopt. A good example of this sort of
coercive federalism was Congress’s decision in the early 1980s to force
the states to raise the legal drinking age to twenty-one by threatening to cut
off badly needed federal highway funds.40 Despite clear federal
dominance, states remain viable actors in the political system. And the
courts continue to take the concept of federalism seriously.41 Thus, as a
constitutional principle, federalism retains considerable vitality.
Habeas Corpus
Article I, Section 9 of the Constitution states, “[T]he privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of
Invasion or Rebellion the public Safety may require it.” Grounded in
English common law, the writ of habeas corpus gives effect to the all-
important right of the individual not to be held in unlawful custody.
Specifically, habeas corpus enables a court to review a custodial situation
and order the release of an individual who is being held in custody
illegally. While the right has many applications, the most common is in the
criminal context where an individual is held in custody but denied due
process of law.42 Indeed, the writ of habeas corpus is an important and
controversial element of modern criminal procedure (see Chapter 10).
The scope of federal habeas corpus became a hotly contested issue
under the war on terrorism launched after the horrendous attacks of 9-11-
2001. Hundreds of “enemy aliens” captured in Afghanistan and elsewhere
were incarcerated at the American naval base at Guantanamo Bay, Cuba.
Under an executive order issued by President George W. Bush, these
detainees were to be tried by military tribunals. Moreover, the government
took the position that the detainees were beyond the reach of federal
habeas corpus review. In a series of decisions, the Supreme Court held
otherwise.43 What some observers saw as a defeat for national security,
others saw as a victory for the rule of law.
CASE IN POINT
On the final day of its 2013-14 term, the Supreme Court released a
sharply-divided decision addressing the constitutionality of a portion of the
Affordable Care Act. Executives from Hobby Lobby Stores, Inc. and a
company called Conestoga Wood Specialties Corp. brought suit to
challenge the Affordable Care Act’s mandate that businesses provide
employees with access to health care plans that covered certain types of
contraceptives. The specific contraceptives at issue included intrauterine
devices and so-called “morning after pills,” items that the companies’
lawyers said “may have the effect of preventing an already fertilized egg
from developing any further by inhibiting its attachment to the uterus,”
thus making these contraceptives incompatible with religious beliefs that
are linked to the idea that life begins at conception. Consequently,
company executives claimed that the contraceptive requirement violated
their First Amendment rights to “free exercise of religion.”
In Burwell v. Hobby Lobby, a 5-4 majority ruled in favor of Hobby
Lobby. Justice Alito’s majority opinion began by noting that “family-
owned” (or “closely-held”), for-profit companies could in fact claim the
same free exercise of religion rights that individuals can assert. (From a
semantic standpoint, the Internal Revenue Service defines “closely-held”
companies as those where five or fewer individuals control 50% or more
of the company stock.)
After asserting that a “free exercise” claim could be recognized here, the
majority opinion then evaluated this matter through the lens of the
Sherbert Test. Although the opinion did grant that “providing
contraception to women” was in fact a compelling interest, Alito added
that the government had not achieved the “least restrictive means” for
furthering this compelling interest. His opinion even suggested that the
government itself could pay for women to acquire contraceptive coverage,
or that it could require insurance companies to do so.
Justice Ginsburg’s dissent derided the majority for offering “a decision
of startling breadth” that, in her opinion, would allow corporations to “opt
out of any law (saving only tax laws) they judge incompatible with their
sincerely held religious beliefs.” She expressed particular concern about
possible challenges to providing health insurance that covered blood
transfusions, antidepressants, and vaccines.
Justice Alito responded to Justice Ginsburg by noting that, “Our holding
is very specific. We do not hold, as the principal dissent alleges, that for-
profit corporations and other commercial enterprises can ‘opt out of any
law,’” and he specifically stated that the decision does not sanction denial
of vaccinations or transfusions, or any type of workplace discrimination.
Two primary areas for future litigation remain after this decision. First,
subsequent cases will be needed to determine the application of these
principles to other forms of birth control besides “emergency
contraception”; second, additional cases will be required to assess whether
other types of organizations besides “closely-held, for profit companies”
can successfully advance similar claims. In the end, the precise scope of
the exceptions to existing law that the Supreme Court is willing to grant
under the auspices of “free exercise of religion” provides a matter for
ongoing debate about the First Amendment.59
CASE IN POINT
Freedom of Association
The First Amendment makes no mention of the right to associate freely
with people of one’s own choosing, but the courts have recognized that
this right is implicit in the First Amendment. In recent years, this implicit
freedom of association has come into conflict with government efforts to
eliminate various forms of social discrimination. In one case, a unanimous
Supreme Court found that Minnesota’s interest in eradicating sex
discrimination was sufficiently compelling to justify a decision of its
human rights commission requiring local chapters of the Jaycees to admit
women. The Court rejected the Jaycees’ argument that their First
Amendment rights were being violated.87 However, in June 2000, the
Court ruled that the Boy Scouts of America had a constitutional right to
prohibit openly gay men from serving as scout leaders. This controversial
ruling came in a case where the New Jersey courts had prohibited the
Scouts from engaging in such discrimination under that state’s civil rights
laws.88 The 5-4 decision by the Supreme Court was denounced by leaders
of the gay rights movement but hailed by those who wish to see private
organizations protected from governmental intrusion.
Even so, Justice Scalia was also quick to note that the Court’s decision
did not render invalid most of the nation’s gun control laws, saying that
“nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and qualifications
on the commercial sale of arms.” 93 The Court would reinforce these ideas
in a 2010 case, McDonald v. Chicago, that made Second Amendment
rights applicable in the states.94 Although the Heller and McDonald cases
spoke directly to a right to possess handguns in the home, matters such as
the possession of other types of weapons and the carrying of weapons
outside the home remain for future cases.
SIDEBAR
SIDEBAR
CASE IN POINT
Earl Warren believed that the most important decisions rendered by the
Supreme Court during his tenure as Chief Justice were those in which the
Court used the Equal Protection Clause to require reapportionment of
state legislatures. For many years, there had been wide population
disparities among legislative districts, which meant that rural districts had
disproportionate influence over state legislatures. In 1964, the Supreme
Court held that these districts had to be reapportioned on the principle of
“one person, one vote.” 124 American politics changed dramatically as a
result.
The Fourteenth Amendment prohibits state-sponsored discrimination.
Discrimination by private actors is beyond the reach of the Equal
Protection Clause.125 Of course, private discrimination can be addressed
by federal, state, and local civil rights legislation. The best known example
of this is Title II of the Civil Rights Act of 1964, which prohibits racial
discrimination by privately owned places of public accommodation
(businesses that open their doors to the general public) (see Chapter 11).
In this widely publicized decision, the U.S. Supreme Court struck down
the male-only admissions policy of the Virginia Military Institute (VMI), a
public educational institution. The lawsuit had been brought by the Justice
Department, after a complaint was filed by a female high school student
who wanted to go to VMI but was barred from doing so by the Institute’s
absolute prohibition against admitting women. In a 7-1 decision, the
Supreme Court, speaking through Justice Ginsburg, ruled that the state of
Virginia had “fallen far short of establishing the ‘exceedingly persuasive
justification,’ that must be the solid base for any gender-defined
classification.…” In a scathing dissent, Justice Scalia questioned the
majority’s “amorphous ‘exceedingly persuasive justification’ phrase” and
lamented the fact that the Court had, in his view, “shut down an institution
that has served the people of the commonwealth of Virginia with pride and
distinction for over a century and a half.” He ended by observing that “I do
not think any of us, women included, will be better off for its destruction.”
Voting Rights
While the Fourteenth Amendment is the broadest, and most important,
source of protection for civil rights and liberties outside the Bill of Rights,
a number of other constitutional amendments address specific civil rights
issues. These Amendments (Fifteenth, Nineteenth, Twenty-Fourth, and
Twenty-Sixth) focus on the right to vote, which is arguably the most
essential right in a democracy. The original Constitution left the matter of
voting rights to the states. In 1787, voting in the United States was
confined for the most part to “freeholders,” that is, white male landowners
above the age of twenty-one. As our society has become progressively
more democratic, the Constitution has been amended to make the franchise
more inclusive. Moreover, Congress has enacted legislation to protect
access to registration and voting, most significantly the Voting Rights Act
of 1965 (see Chapter 11).
CONCLUSION
After the new Americans won their freedom, the Articles of Confederation
that attempted to tie together the citizens of the new American states
proved unworkable. The Articles were thus replaced by the United States
Constitution, which created a workable framework that enabled a loosely
knit group of states to become a nation. The Framers incorporated into the
Constitution a process for orderly, albeit difficult, amendment. In
allocating powers, the Framers painted with a broad brush. Congress and
the President have the ability to make and execute laws. The Supreme
Court exercises the power to interpret the constitutional aspects of
government in light of the vast social, economic, and political differences
that have evolved in our society since ratification of the Constitution in
1789. Thus, the Constitution has provided an enduring foundation for the
American political system for more than two centuries.
Rather than becoming a mere document to be outdated by generations
that followed its ratification, the new Constitution was promptly followed
by a Bill of Rights. The concepts of separation of powers, judicial
independence, and federalism have bolstered the enduring quality of the
Constitution. But the Constitution became the bulwark of civil liberties
through adoption of the Bill of Rights. While designed to protect the rights
and liberties of citizens from actions of the federal government, over time
these guarantees largely have been applied against the states as well.
Today, the constitutional makeup embraces not only the original
constitution and the Bill of Rights, but significantly, the Fourteenth
Amendment, which prohibits states from depriving any citizen of life,
liberty, or property without due process of law or from denying any citizen
the equal protection of the laws. Through the Constitution, as amended,
and as interpreted, Americans have become national citizens in a sovereign
nation with fifty sovereign states that has expanded from a framework for
government to include a charter for a democracy to protect the rights and
liberties of the citizens of the new republic.
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Rights and Liberties in the United States (8th ed., University Press of
Kansas 2003).
Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction (Yale
University Press 1998).
Berger, Raoul, Government by Judiciary: The Transformation of the
Fourteenth Amendment (Harvard University Press 1977).
Carter, Lief H., Contemporary Constitutional Lawmaking: The Supreme
Court and the Art of Politics (Pergamon Press 1985).
Ely, John Hart, War and Responsibility: Constitutional Lessons of Vietnam
and Its Aftermath (Harvard University Press 1993).
Fisher, Louis, The Politics of Shared Power: Congress and the Executive
(Congressional Quarterly Press 1987).
Irons, Peter, May It Please the Court: The First Amendment (The New
Press 1997).
Kelly, Alfred H., Winfred A. Harbison, and Herman Belz, The American
Constitution: Its Origins and Development (7th ed., 2 vols., Norton
1991).
McDonald, Forrest, Novus Ordo Seclorum: The Intellectual Origins of the
Constitution (University of Kansas Press 1985).
Swisher, Carl Brent, American Constitutional Development (2d ed.,
Houghton-Mifflin 1954).
KEY TERMS
affirmative action
Articles of Confederation
Ashwander rules
Bill of Rights
bills of attainder
checks and balances
clear and present danger doctrine
coercive federalism
commander-in-chief
compulsory process
compulsory self-incrimination
cooperative federalism
cruel and unusual punishments
death penalty
defamation
doctrine of incorporation
doctrine of original intent
double jeopardy
dual federalism
due process of law
eminent domain
enumerated powers
equal protection of the laws
ex post facto laws
excessive bail
excessive fines
executive power
fair hearing
fair notice
federalism
fighting words
forfeitures
freedom of association
freedom of expression
grand jury
gun control legislation
habeas corpus
imminent lawless action
impeachment
implied powers
independent counsel
indictment
intentions of the Framers
judicial activism
judicial review
judicial self-restraint
just compensation
the living Constitution
obscenity
oversight
power of the purse
power to investigate
precedent
presumption of constitutionality
pretrial release
prior restraint
reapportionment
right of privacy
right to counsel
right to die
right to keep and bear arms
right to vote
rights of the accused
separation of church and state
separation of powers
standing
stare decisis
state-sponsored discrimination
strict judicial scrutiny
substantive due process
time, place, and manner regulations
treason
trial by jury
unitary system
unreasonable searches and seizures
ENDNOTES
CHAPTER OUTLINE
Introduction
The Origin and Sources of the Criminal Law
Constitutional Limitations on Criminal Law
Elements of Crimes
Parties to Crimes
Inchoate Offenses
Offenses against Persons
Property Crimes
White-Collar Crime
Organized Crime
Vice Crimes
Offenses Against Public Order and Safety
Offenses Against the Administration of Justice
Environmental Crime
Military Offenses
Defenses
Punishment of Offenders
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
Criminal law is that branch of the law that deals with crimes and
punishments. Substantive criminal law defines crimes and establishes
penalties. Procedural criminal law regulates the enforcement of the
substantive law, the determination of guilt, and the punishment of those
found guilty of crimes. In this chapter, we examine the substantive
criminal law. We examine criminal procedure in Chapter 10.
Criminal Responsibility
The criminal law, indeed our entire legal system, rests on the idea that
individuals are responsible for their actions and must be accountable for
them. This is the essential justification and rationale for imposing
punishments on persons convicted of crimes. On the other hand, society
recognizes that certain individuals (for example, young children) lack the
capacity to appreciate the wrongfulness of their conduct. Similarly, factors
beyond individuals’ control may lead them to commit criminal acts. In
such instances, the law exempts individuals from responsibility. Moreover,
there are situations in which acts that would otherwise be crimes may be
justified. The best example of this is committing a homicide in self-
defense. Ultimately, there are a host of defenses that individuals may
invoke beyond a simple denial of guilt. We discuss the topic of criminal
responsibility and defenses later in this chapter.
American criminal laws basically came from the English common law as
it existed at the time that America proclaimed its independence in 1776.
After independence, the new American states, through the legislative
enactment of “reception statutes,” adopted the English common law—to
the extent that it did not conflict with the new state and federal
constitutions. Though Louisiana is the only state in the Union whose legal
system is not based on the common law, instead being based on the
Napoleonic Code of France, in Louisiana as in the other states, crimes are
largely defined by statutes. However, the federal government did not adopt
the common law of crimes. From the outset, statutes passed by Congress
defined federal crimes.
The new American judges and lawyers were greatly aided by
Blackstone’s Commentaries, published in 1769, in which Sir William
Blackstone, a professor at Oxford, codified the principles of the common
law. Blackstone’s seminal effort was a noble undertaking, but it had the
effect of demystifying English law. Consequently, Blackstone’s
encyclopedic treatment of the law was less than popular among English
barristers, who by this time had developed a close fraternity and took great
pride in offering their services to “discover the law.” In America, however,
Blackstone’s Commentaries became something of a “legal bible.”
Because it is the “supreme law of the land,” the United States Constitution
limits the power of Congress and the state legislatures to enact criminal
statutes. For example, Article III, Section 3 provides that the crime of
treason against the United States “shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort.” Incidentally, treason is the only crime actually defined in the
Constitution; all other crimes are defined by the common law, state and
federal statutes, or both. Other constitutional limitations on the criminal
law include the prohibitions against bills of attainder and ex post facto
laws contained in Article I, Sections 9 and 10,4 and many of the provisions
of the Bill of Rights (see Chapter 3).
ELEMENTS OF CRIMES
PARTIES TO CRIMES
Historically, the common law classified parties to crimes as either
principals or accessories. A person directly involved in committing a
felony was classified as a principal; a person whose conduct did not
involve direct participation was classified as an accessory. Principals were
further classified by the degree of their participation. A person who
directly or through the acts of an innocent agent actually committed the
crime was a principal in the first degree. A principal in the second degree
was a person not directly involved but actually or constructively present at
the commission of the crime who aided and abetted the perpetrator. The
concept of actual presence is self-explanatory; however, the concept of
constructive presence requires further explanation. To be constructively
present, one had to be sufficiently close to render assistance to the
perpetrator. For example, suppose a man led a woman’s escort away from
her so that another man could sexually attack the woman. The man who
led the escort away would be constructively present at the crime and would
be classified as a principal in the second degree because he was aiding
and abetting a crime. Aiding and abetting another in the commission of a
crime means assenting to an act or lending countenance or approval, either
by active participation in it or by encouraging it in some other manner.
An accessory at common law was classified as either an accessory
before the fact or an accessory after the fact. An accessory before the fact
procured or counseled another to commit a felony but was not actually or
constructively present at commission of the offense. An accessory after the
fact knowingly assisted or gave aid or comfort to a person who had
committed a felony.
Because misdemeanors were far less serious than felonies, the common
law found no necessity to distinguish between participants. As in the case
of treason, all participants in misdemeanor offenses were regarded as
principals. Accessories to felonies were not regarded as being as culpable
as the principals, so they were punished less severely at common law.
The trend in American criminal law has been to abolish the distinction
between principals and accessories before the fact. Federal law stipulates
that “[w]hoever commits an offense against the United States or aids,
abets, counsels, commands, induces, or procures its commission, is
punishable as a principal.…” 17 The federal statute reflects the law of most
of the states insofar as it abolishes the distinction between principals and
accessories before the fact.
Even though the common law distinction between principals and
accessories before the fact has been largely abolished, the concept of
accessory after the fact as a separate offense has been retained by many
jurisdictions. Modern statutes view an accessory after the fact as less
culpable than someone who plans, assists, or commits a crime. Thus,
statutes generally define accessory after the fact as a separate offense and
provide for a less severe punishment.18 In most states, a lawful conviction
as an accessory after the fact requires proof that the defendant knew that
the person aided or assisted had committed a felony. The gist of being an
accessory after the fact lies essentially in obstructing justice, and a person
is guilty who knows that an offense has been committed and receives,
relieves, comforts, or assists the offender in order to hinder the offender’s
apprehension, trial, or punishment.19 Federal law, however, does not
distinguish between whether the person assisted has committed a felony or
has committed a misdemeanor.20
Because of a wife’s duty at common law to obey her husband, a woman
who gave aid and comfort to her husband was exempt from the law
governing accessories after the fact. While this exemption no longer
prevails, some state statutes exempt spouses and other classes of relatives
from penalty for being accessories after the fact. For example, Florida law
prevents the prosecution as an accessory after the fact of any person
standing in the relation of husband or wife, parent or grandparent, child or
grandchild, brother or sister, either by blood or marriage—except for child
abuse and homicide offenses.21
INCHOATE OFFENSES
The word “inchoate” means underdeveloped or unripened. Thus, an
inchoate offense is one involving activity or steps directed toward the
completion of a crime. There are three such offenses: attempt,
solicitation, and conspiracy. Although preparatory to commission of other
offenses, they are separate and distinct crimes. During the 1800s, each was
recognized as a misdemeanor at common law, too late to become a part of
the common law under the reception statutes adopted by most new
American states. Most American jurisdictions now define these offenses
by statute, frequently classifying them as felonies.
Inchoate offenses were originally created by the courts in response to
the need to prevent commission of serious crimes. The development of the
law in this area has been primarily through the courts. Frequently, the
courts have found difficulty in determining when mere noncriminal
activity has reached the stage of criminal conduct. Yet, by making certain
inchoate conduct illegal, the law affords law enforcement officers an
opportunity to terminate such conduct at an early stage.
Attempt
Attempt is the most frequently charged of the inchoate crimes. A criminal
attempt consists of an intent to commit a specific offense coupled with an
act that goes beyond mere preparation toward the commission of that
offense. No particular federal statute proscribes the offense of attempt. In
general, federal courts have recognized the requisite elements of attempt as
(1) an intent to engage in criminal conduct, and (2) the performance of an
act that constitutes a substantial step toward the completion of the
substantive offense.22 State penal codes often specifically provide for
attempts to commit the most serious crimes such as murder. A general
attempt statute then covers the remaining offenses. A typical statute that
covers all attempts provides, “Whoever attempts to commit an offense
prohibited by law and in such attempt does any act toward the commission
of such an offense, but fails in the perpetration or is intercepted or
prevented in the execution of the same, commits the offense of criminal
attempt.” 23 The “act” requirement contemplates an overt act that
constitutes a substantial step toward commission of an offense. While the
quoted statute makes no distinction between felony or misdemeanor
offenses, statutes in some states limit the crime of attempt to attempts to
commit felonies or certain specified crimes. The criminal law proscribes
not simply an attempt but an attempt to commit a specific crime, for
example, attempted murder or attempted sexual assault.
The Model Penal Code distinguishes preparatory conduct from an
attempt. It allows conviction for the crime of attempt where the actor
engages in “an act or omission constituting a substantial step in a course of
conduct planned to culminate in the commission of the crime.” Federal
courts apply this test.24 It is possible that where there are multiple
intentions underlying an act, one act may establish several different
criminal attempts.
To find a defendant guilty of the crime of attempt, most courts require
the prosecution to prove that the defendant had a specific intent to commit
the intended offense, frequently referred to as the target crime. Most
courts reason that one cannot attempt to do something without first
forming the specific intent to accomplish that particular act. The rationale
for this majority view seems to be that an attempt involves the concept of
intended consequences by the actor. In any event, courts require at least
the level of intent that must be established in proof of the target crime.
When a criminal attempt completes a substantive crime, the attempt
usually merges into the target offense. The actor is then guilty of the
substantive crime rather than merely an attempt to commit it. Thus, a
person who is successful in an attempt to commit murder is guilty of
murder. However, there can be no attempt to commit certain crimes
because some substantive offenses by definition embrace an attempt. To
illustrate, the statutory crime of uttering a forged instrument is usually
defined as including an attempt to pass a forged instrument to someone to
obtain something of value. Therefore, one who makes such an attempt
would be guilty of uttering a forged instrument, not merely an attempt to
do so. In effect, the attempt is subsumed by the very definition of the
substantive crime. Needless to say, it would be redundant to charge
someone with attempting to attempt to commit a given crime.
Some jurisdictions have laws providing that it is a defense to the crime
of attempt if the defendant abandons an attempt to commit an offense or
otherwise prevents its consummation.25 If recognized as a defense,
abandonment must be wholly voluntary. It cannot be the result of any
outside cause like the appearance of the police on the scene.
Solicitation
By the 1800s, the English common law specified that a person who
counseled, incited, or solicited another to commit either a felony or a
misdemeanor involving breach of the peace committed the offense of
solicitation. A person who solicited another to commit a crime was guilty
of solicitation even if the crime counseled, incited, or solicited was not
committed. The offense of solicitation is now defined by statute in most
American jurisdictions. The statutory definition of solicitation in Illinois is
typical: “A person commits solicitation when, with intent that an offense
be committed, other than first-degree murder, he commands, encourages,
or requests another to commit the offense.” 26 The essence of the offense
remains the solicitation, so the offender may be found guilty irrespective
of whether the solicited crime is ever committed. Conviction under federal
law requires the solicitation to be of a federal offense.27
The offenses of solicitation and attempt are different crimes, analytically
distinct in their elements. Although each is an inchoate offense, solicitation
is complete when the request or enticement to complete the intended
offense is made, and it is immaterial whether the solicitee agrees, if the
offense is carried out, or if no steps were taken toward consummation of
the offense. Mere solicitation is generally not sufficient to constitute an
attempt, because attempt requires proof of an overt act to commit the
intended criminal act.
Usually, the fact that the solicitor countermands the solicitation is not a
defense to the crime of solicitation. Nor is it a defense that it was
impossible for the person solicited to commit the crime. The Model Penal
Code provides that a timely, complete, and voluntary renunciation of the
accused’s criminal purpose is a defense to a charge of solicitation.28 Some
states have adopted this position. For such a defense to prevail, though, a
defendant would have to affirmatively establish that after soliciting
another person to commit an offense, the defendant prevented commission
of the crime under circumstances manifesting a complete and voluntary
renunciation of any criminal purpose.
Conspiracy
At common law, conspiracy consisted of an agreement by two or more
persons to accomplish a criminal act or to use unlawful means to
accomplish a noncriminal objective. The gist of the offense was the
unlawful agreement between the parties, and no overt act was required.
The common law regarded a husband and wife as one person for most
purposes; therefore, a husband and wife could not be guilty of conspiring
with one another. Since the trend of the law in recent years has been to
recognize the separate identities of the spouses, there appears to be no
valid reason to continue the common law approach.
Today, the offense of conspiracy is defined by statute in all
jurisdictions. Most state laws define the elements of the offense along the
lines of the common law. Thus, under Florida law, both an agreement and
an intention to commit an offense are necessary elements to support a
conviction for conspiracy.29 On the other hand, federal law (with some
exceptions) requires an overt act in a conspiracy to commit an offense or
defraud the United States.30 A number of states also require proof of an
overt act in order to convict someone for conspiracy. Texas law, for
example, provides: “A person commits criminal conspiracy if, with intent
that a felony be committed, (1) he agrees with one or more persons that
they or one or more of them engage in conduct that would constitute the
offense, and (2) he or one or more of them performs an overt act in
pursuance of the agreement.” 31 Note that the Texas statute also requires
an intent that a felony be committed, whereas in many states it is only
necessary to prove an intent to commit a criminal offense.
The range of conspiracies cuts across socioeconomic classes in society.
Traditionally, state prosecutions for conspiracy have been directed at
criminal offenses such as homicide, arson, perjury, kidnapping, and
various offenses against property. In recent years, an increasing number of
both state and federal conspiracy prosecutions have been related to illicit
drug trafficking. In addition to the large number of narcotics violations,
federal prosecutions include a variety of conspiracies not found under state
laws. Among these are customs violations, counterfeiting of currency,
copyright violations, mail fraud, lotteries, and violations of antitrust laws
and laws governing interstate commerce and other areas of federal
regulation.
Conspiracy is regarded as a separate and distinct crime; therefore, it
usually does not merge into the target offense. Wharton’s Rule, named
after Francis Wharton, a well-known commentator on criminal law,
provides an exception to this principle. Wharton’s Rule holds that two
people cannot conspire to commit a crime such as incest or bigamy
because these offenses require only two participants. The rationale is that,
unlike the usual conspiracy (often viewed as a wheel with many spokes or
as a chain of circumstances), the offenses named do not endanger the
public generally. Wharton’s Rule has been applied in many state and
federal courts, but it has its limitations. In holding the rule inapplicable to
various federal gambling offenses under the Organized Crime Control Act
of 1970, the Supreme Court pointed out that the rule itself is simply an aid
to determination of legislative intent and must defer to a discernible
legislative judgment.32
There has been an increased tendency in recent years to prosecute
defendants for conspiracies as well as target crimes. The offense of
conspiracy is a potent weapon in the hands of the prosecutors, particularly
in coping with the problem of organized crime. But since the intent
requirement and the form of agreement required are somewhat imprecise,
a conspiracy is easier to prove than specific substantive crimes. On this
basis, some critics argue that prosecutors, judges, and juries are given too
wide latitude in finding a defendant guilty. Other critics point to the fact
that conspiracy prosecutions may chill or effectively abolish First
Amendment rights of free expression.
In some states, statutes specifically provide for a defense of withdrawal
from and renunciation of a conspiracy. As an illustration, Missouri law
specifies: “No one shall be convicted of conspiracy if, after conspiring to
commit the offense, he prevented the accomplishment of the objectives of
the conspiracy under circumstances manifesting a renunciation of his
criminal purpose.” 33
In the absence of statutory authority, courts have been reluctant to
approve a person’s withdrawal as a defense. One of the difficulties in
approving withdrawal as a defense is that even though a conspirator
withdraws, the criminal objective of the conspiracy may proceed.
Therefore, it seems reasonable to require that a person who would rely on
such defense not only renounce any criminal purpose but also take the
necessary steps to thwart the objective of the conspiracy. To accomplish
this result, the conspirator probably would have to notify law enforcement
authorities of the pertinent details of the conspiracy. If the accused is
allowed to offer such a defense, then he or she has the burden of
establishing a withdrawal from the conspiracy.
The protection of people from others who would do them harm is the
fundamental mission of the criminal law. Offenses against persons can be
divided into five basic categories:
1. Assaultive offenses
2. Homicide
3. Rape and sexual battery
4. False imprisonment and kidnapping
5. Abusive offenses.
Assaultive Offenses
Assault and battery, terms which are familiar to everyone, derive from the
common law. An assault is an attempt or threat to inflict bodily injury
upon another person. An aggravated assault is an assault involving a
weapon capable of inflicting death or serious bodily injury. Simple assault
is a misdemeanor; aggravated assault is a felony. Battery is the unlawful
use of force against another person that entails some injury or offensive
touching. Common examples would include striking someone or even
kissing someone against his or her will. Aggravated battery entails the
infliction of serious bodily injury or use of a deadly weapon. In some
jurisdictions, assault and battery is one offense, which is to say that battery
is subsumed under assault. Additionally, the common law developed an
offense called mayhem, which involve the severing of a limb or the
putting out of an eye, such that the victim was rendered less able to fight.
Today, some jurisdictions retain mayhem as an offense, while others
consider mayhem to be aggravated battery.
Another assaultive offense is stalking. A relatively new development,
stalking is typically defined as willfully, maliciously, and repeatedly
following or harassing another and making a credible threat against that
person. Usually, a stalking statute defines a general-intent crime that
involves more than one incident—hence the appearance of the word
“repeatedly” in the previous sentence. Most complaints are filed by
women who are targeted by men. Some commentators have criticized
stalking laws as being excessively vague, but courts have rejected most
constitutional challenges to these laws.
Homicide
The common law recognized murder and manslaughter as criminal
homicide. Murder was the “unlawful killing of another with malice
aforethought.” Manslaughter was an unlawful killing that did not involve
malice. There were two categories of manslaughter: involuntary
(unintentional) and voluntary (intentional). The common law also
recognized justifiable homicide and excusable homicide. Homicide was
justifiable if a killing resulted from self-defense or by a command or
permission of the law. It was excusable where committed through accident
or misfortune.
Criminal homicide involves actions that result in the death of a human
being and is classified according to degrees. First-degree murder is
usually defined as requiring proof of malice aforethought or premeditation;
accordingly, it is a specific-intent crime. Other homicidal offenses are
usually general-intent crimes. Second-degree murder commonly requires
proof of a defendant’s depraved indifference to human life or imminently
dangerous or outrageous conduct. A few statutes proscribe an offense
requiring a lesser level of culpability known as third-degree murder.
At common law, manslaughter was classified as voluntary or
involuntary. Modern penal codes preserve manslaughter as criminal
homicide; however, some jurisdictions combine voluntary and involuntary
manslaughter into one offense. Manslaughter today frequently embraces
responsibility for omissions as well as commissions where there is a legal
duty to act. Depending on the specific jurisdiction, manslaughter usually
requires proof of either reckless conduct or “gross negligence” that results
in another’s death. Provocation that would cause a reasonable person to
lose control also may be sufficient to convert an otherwise intentional
killing of another to manslaughter. Mere words, however, even if
extremely insulting, are not sufficient to constitute provocation. It must
generally be shown that the provocation was sufficient to excite in the
defendant’s mind such anger, rage, or terror as to obscure an ordinary
person’s reasoning and render that person incapable of cool reflection.
Often, there is a fine line between a conviction for second-degree murder
and manslaughter. In some instances, a verdict finding a defendant guilty
of manslaughter results from a jury’s desire to mitigate the seriousness of a
defendant’s offense.
Vehicular homicide usually involves death resulting from the negligent
operation of a vehicle or driving while in the commission of an unlawful
act not amounting to a felony. The offense usually carries a lesser penalty
than the crime of manslaughter. Prosecutors often charge a defendant with
vehicular manslaughter rather than vehicular homicide where the evidence
shows the defendant was negligent but not necessarily grossly negligent or
reckless.
Felony murder consists of an unintentional killing that occurs during
the commission or attempted commission of another serious felony.
Developed at common law when felonies were punishable by death, the
doctrine has been incorporated into most criminal codes in the United
States. Today, many jurisdictions outline a specific list of felonies that can
lead to a charge of felony murder when a death occurs during their
commission. Examples of such felonies include burglary, robbery, rape,
arson, and kidnapping.
Homicide can be considered excusable when committed by accident or
misfortune or in doing any other lawful act by lawful means, with usual
and ordinary caution, and without any unlawful intent. Homicide also may
be excusable when committed in the heat of passion, or on sudden and
sufficient provocation, or on sudden combat where no dangerous weapon
is used and the killing is not done in a cruel or unusual manner. A death
that results from a vehicular accident where the driver is not negligent is
also an example of excusable homicide.
In justifiable homicide, the intent to cause death is often present. When
death is inflicted by public officers in obedience to a court judgment or in
discharge of certain other legal duties, or when necessarily committed in
apprehending felons, it is considered justifiable homicide.
In order to earn a conviction for a homicide offense, the prosecution
must prove that the victim was alive before the homicidal act, that the
victim was killed by a criminal act or agency of another (corpus delicti),
and that the victim’s death was proximately caused by the defendant. At
common law, the victim’s death had to occur within a year and a day of
the defendant’s act. Modern technology has caused courts and legislatures
to recede from this inflexible requirement and the Supreme Court of the
United States effectively sanctioned this retreat from the “year and a day
rule” with its opinion in Rogers v. Tennessee. 34 Further, while cessation of
heartbeat was the classic definition of death, many jurisdictions have
legislatively or judicially supplemented the classic requirement of when
death occurs by a new definition of “brain death.”
Defenses to homicidal crimes often involve pleas of self-defense and,
sometimes, insanity, as well as claims that the victim’s death resulted from
an accident or through actions taken in the heat of passion.
Suicide
Early English common law defined the offense of suicide as “the
intentional taking of one’s life by self-destruction.” Suicide was not only
regarded as being contrary to nature, but also was looked upon as an
offense against the Biblical commandment: “Thou shalt not kill.” Suicide
was punishable by forfeiture of the decedent’s goods and chattels because
it deprived the King of one of his subjects.
The thrust of statutory criminal law has been to make it an offense for
anyone to cause or aid another person to commit suicide. After several
unsuccessful attempts to convict Dr. Jack Kevorkian for assisting
terminally ill individuals to commit suicide, in 1999 the state of Michigan
successfully prosecuted Kevorkian for second-degree murder in the death
of a man suffering from Lou Gehrig’s disease. After serving eight years in
prison, Dr. Kevorkian was released in June 2007.
In 1997, in Washington v. Glucksberg, the U.S. Supreme Court upheld a
Washington statute making it a crime to assist another in committing
suicide.35 Writing for a unanimous Court, Chief Justice Rehnquist
discussed the historical and cultural background of laws prohibiting
assisted suicide. He pointed out that in almost every state it is a crime to
assist in a suicide and that the statutes banning assisted suicide are long-
standing expressions of the states’ commitment to the protection and
preservation of all human life. The Court’s opinion analyzed the interests
that come into play in determining whether a statute banning assisted
suicide passes constitutional muster. The Court rejected any parallel
between a person’s right to terminate medical treatment and the “right” to
have assistance in committing suicide.
Laws against assisted suicide bring into play significant policy issues
and require legislatures to carefully balance competing claims of
individual liberty, ethics, and the interest of society. Some proponents of
allowing assisted suicide argue that it simply enables a person who has a
rational capacity to make a fundamental life choice that should be within
their domain of decision making. Those who reject this view urge that the
state has an interest in the preservation of life and that some individuals
may die needlessly as a result of misdiagnosis. Moreover, they argue that
allowing assisted suicide leads to an indifference to the value of life.
The Supreme Court’s decision in Washington v. Glucksberg essentially
leaves the question of doctor-assisted suicide in the hands of state
legislators and voters. In 1994, Oregon voters narrowly approved a law
allowing a doctor to assist terminally ill persons in committing suicide
under specified circumstances.36 Subsequently, in 2006 the Supreme Court
effectively sanctioned Oregon’s assisted suicide law with its decision in
Gonzales v. Oregon,37 which prevented the United States’ Attorney
General from unilaterally prohibiting the prescription of certain drugs used
in the act of assisting a suicide.
PROPERTY CRIMES
If the most important goal of the criminal law is to protect persons, the
next most important goal is the protection of property. The Anglo-
American legal tradition places a premium on private property rights, and
this emphasis can be seen in the many criminal prohibitions relative to
economic and property crimes.
Theft
The basic common law offense against someone’s taking another’s
personal property was larceny. The crime consisted of (1) the wrongful
taking and carrying away of (2) the personal property of another (3) with
the intent to permanently deprive the other person of the property. The
taking was called the “caption”; the carrying away, the “asportation.” The
wrongful act was a “trespass” and to convict a defendant of larceny
required proof of the defendant’s specific intent to permanently deprive the
victim of possession of the property.
Because of the many technical distinctions in larceny, the English
Parliament developed two statutory offenses, false pretenses and
embezzlement. False pretenses made it a misdemeanor for a seller to
obtain someone else’s property by false pretenses. This statute was
adopted in 1757 and became a part of the common law of most new
American states. Embezzlement occurred when a person who had lawful
possession of another’s property wrongfully appropriated that property.
This statute was aimed at brokers, bankers, lawyers, trustees, and others
who abused their positions of trust. Parliament enacted the offense of
embezzlement in 1799, too late to be received by the new American states
as part of the common law.
Most states originally followed the common law of larceny, receiving
stolen property, and false pretenses, and enacted statutes making
embezzlement of intangible and tangible items a crime. During the ensuing
years, states passed a variety of statutes that proscribed stealing in its
various forms. Since the 1970s, the trend has been for the states to replace
their disparate statutes defining various aspects of stealing with an
omnibus statute proscribing theft in comprehensive terms. These newer
statutes replace the narrow common law concept of what constitutes a
taking, carrying away, and trespass. Most retain the specific-intent
requirement but generally define it as the “intent to steal” rather than the
intent to permanently deprive another of his or her property.
The newer state statutes defining theft make it unlawful for a person to
commit any of the common law offenses as well as various other crimes,
including theft of intellectual property such as trade secrets. Theft statutes
usually classify the seriousness of the offense based on the value of the
goods or services stolen, an element the prosecution can establish by
proving the market value of the goods or services taken. Frequently, theft
of certain articles, for example, firearms, fire extinguishers, or a person’s
last will and testament, are classified as more serious offenses, irrespective
of their market value. Likewise, some states classify the degree of theft on
the basis of local economic interests, as would be the case with theft of
livestock, citrus fruit, or building materials.
Most computer crimes violate one or more laws defining theft, fraud,
embezzlement, and similar offenses at the state level, and often, mail fraud
at the federal level. Nevertheless, nearly every state has adopted some laws
defining such offenses as computer fraud, computer trespass, and theft of
computer services. These new laws define such terms as “access,”
“computer program,” “software,” “database,” “hacking,” and other
computer parlance, and address computer manipulation, theft of
intellectual property, telecommunications crimes, and software piracy.
Depending on the value of property or services actually obtained, these
offenses are graded as felonies or serious misdemeanors.
Robbery
At common law, robbery was a felony consisting of (1) a taking of
personal property (2) from another person’s possession (3) by force or by
placing a person in fear (4) with the intent to permanently deprive the
victim of the property. Thus, in reality robbery is both a property crime
and a crime against a person. Robbery became a statutory offense in all
American jurisdictions. Federal statutes apply to post offices, military
installations, and banks where deposits are insured by the federal
government. Federal law varies from the common law requirements by not
requiring the prosecution to establish the defendant’s specific intent.
Most states define robbery much as did the common law; however,
many now classify the offense by degrees depending on whether the
accused is armed, the extent of force used or injury inflicted, and, in some
instances, the vulnerability of the victim based on the victim’s age or
disabilities. A contemporary issue in robbery is whether the element of
force or placing the victim in fear must occur prior to or contemporaneous
with the taking of the victim’s property.
Recognizing the serious threat that forcible auto theft poses to persons
and their motor vehicles, and after a nationwide spree of “carjacking,”
Congress in 1994 enacted a law providing that:
[w]hoever, with the intent to cause death or serious bodily harm takes a motor vehicle that
has been transported, shipped, or received in interstate or foreign commerce from the
person or presence of another by force and violence or by intimidation or attempts to do
so shall be [fined or imprisoned].38
Identity Theft
A recent development in criminal law is the prohibition of “identity theft.”
Identity theft involves one person pretending to be another person, often
with the objective of using a Social Security number or other identifying
information to acquire credit lines or to make purchases of items like
automobiles or even property. This type of activity can have a deleterious
impact on the lives of the persons whose identities are stolen, as they may
find themselves held responsible for purchases or loans that they did not
authorize. To address this problem, Congress passed the Identity Theft and
Assumption Deterrence Act in 1998. Many states have since adopted
similar statutes. The magnitude of the problem is highlighted by the fact
that several companies now mass-market identity theft protection
programs.
In 2009, the Supreme Court rejected the application of an identity theft
law to illegal immigrants who had used randomly selected, fake Social
Security numbers to secure employment. The Court ruled that a federal
identity theft prosecution required that the individual using a false Social
Security number have knowledge that the Social Security number in
question belonged to an actual person.41
Habitation Offenses
The common law offenses of burglary and arson protected not only the
dwelling house but also the buildings within the “curtilage,” that is, the
enclosure that typically included the cookhouse and other outbuildings. At
common law, burglary consisted of (1) breaking and entering of (2) a
dwelling of another (3) during the nighttime (4) with the intent to commit
a felony therein.
In the United States, all jurisdictions enacted statutes to eliminate the
common law requirement that the offense take place in the nighttime. Most
statutes retain the requirement for a specific intent, usually providing that
the entry be made “with the intent to commit a felony”; however, some
have added “or theft” to broaden the scope of burglary. Today, burglary
statutes usually proscribe the breaking and entering of all types of private
and commercial structures as well as vehicles, aircraft, and vessels of all
types. Retaining the common law tradition of the sanctity of the home,
contemporary statutes commonly impose enhanced punishment for
burglary of a dwelling. Most statutes use the term “curtilage,” but courts
construe it in a modern way to protect reasonable enclosures surrounding a
dwelling, and in some instances, even commercial structures.
Many states have also enacted statutes making the possession of
burglar’s tools a crime. Because burglar’s tools may consist of common
household items, to obtain a conviction the prosecution is usually required
to prove that the defendant knew the tools could be used for a criminal
purpose and intended to use them for such purpose.
Arson at common law consisted of (1) the willful and malicious burning
(2) of a dwelling (3) of another. There was no requirement that the
dwelling be destroyed, and charring was sufficient. The requirement of
“malice” was fulfilled by proof that the burning was deliberate; hence, the
offense only required proof of the defendant’s general intent to commit the
crime.
As with burglary, modern statutes extend the offense of arson to include
the intentional burning of buildings, structures, and vehicles of all types.
Many statutes now provide that use of explosives to damage a structure
constitutes arson. Therefore, arson can no longer be considered strictly a
habitation offense. In contrast to the common law, many modern statutes
provide that damage by smoke or scorching is sufficient to constitute
arson. The modern approach is to classify arson by categories and provide
penalties accordingly, with the most serious offense being arson of a
dwelling.
Statutes also make it an offense to burn (and sometimes to otherwise
destroy or injure) structures or personal property with the intent to defraud
an insurer of the property. By definition, this offense requires proof of the
defendant’s specific intent to defraud.
Malicious Mischief
Malicious mischief was the common law misdemeanor of intentionally
and maliciously causing damage to another’s real or personal property.
Modern statutes define the offense much as did the common law, often
identifying it as vandalism. The punishment under contemporary statutes
is often based on the value of property injured or destroyed.
Extortion
At common law, extortion involved the “taking by color of an office of
money or other thing of value, that is not due, before it is due, or more
than is due.” Some modern statutes rather closely parallel the common
law, while others equate with the concept of “blackmail.” The essence of
the modern offense is obtaining something of value from someone by
inducing the victim’s fear that he or she will be accused or exposed to
some form of injury, embarrassment, or disgrace.
WHITE-COLLAR CRIME
ORGANIZED CRIME
VICE CRIMES
Prostitution
A prostitute is one who engages in indiscriminate sexual activity for hire.
Although it was not a crime at common law, historically, prostitution has
been prohibited by most American penal codes. The Mann Act, passed in
1910, was an early federal law aimed at preventing the transportation of
females across state lines for “immoral purposes.” Traditionally directed at
females, many state laws proscribing prostitution are now directed at both
females and males. Increasingly, the police will arrest customers who
solicit prostitutes. Nevada is currently the only state that permits some
legalized prostitution, but it remains illegal in Nevada’s most populated
counties.
Obscenity
At common law, the use of vulgar and obscene language or indecent
public exhibitions was considered a private nuisance and punishable as a
misdemeanor. Historically, both the federal and state governments
proscribed obscenity. With the development of mass communications in
the 1950s, a flood of erotic material inundated the market. Statutes and
ordinances proscribing obscenity seldom defined it. Typically, laws simply
criminalized the “buying, selling, giving or showing any obscene, indecent
or impure book, paper or picture” without any definition of “obscene.”
Courts usually defined obscenity as being “repulsive” to the senses.
Consequently, producers of sexually oriented materials and law
enforcement officers lacked a guide to determine whether particular
materials were in fact obscene.
In 1957, the U.S. Supreme Court in Roth v. United States, after first
ruling that obscene materials had no First Amendment protection, declared
that the test of obscenity was “whether to the average person applying
contemporary community standards, the dominant theme of the material
taken as a whole, appeals to the prurient interest.” 46 In the ensuing years,
the Court reviewed a number of lower court decisions, culminating in 1973
in its review of the seminal case, Miller v. California. In Miller, the Court
clarified its Roth test by defining “community” so as to permit local juries
to base their judgments on local, and not national, standards. Then, the
Court further redefined the standards for determining obscenity by saying
that the basic guidelines for the trier of fact must be (1) whether “the
average person, applying contemporary community standards” would find
that the work, taken as a whole, appeals to the prurient interest; (2)
whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (3) whether
the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value. The Court expressly rejected any requirement that the
challenged materials must be found to be “utterly without redeeming social
importance,” and gave examples of the type of materials that would be
considered “patently offensive.” 47
In 1982, in New York v. Ferber, the Supreme Court unanimously held
that child pornography, like obscenity, is unprotected by the First
Amendment.48 Then, in 1987 the Court said that while the application of
“contemporary community standards” is appropriate in evaluating the first
two prongs of the Miller test, the third prong concerning the work’s value
must be gauged by the “reasonable person” test.49
Although most states proscribe obscenity along the lines of the federal
constitutional definitions, states are free to grant greater freedom of
expression than allowed under the current federal constitutional
interpretations. Indeed, some have chosen to do so. In Oregon, for
example, the state supreme court has interpreted the state constitution to
hold that “any person can write, print, read, say, show or sell anything to a
consenting adult even though that expression may be generally or
universally condemned as ‘obscene.’” 50
Police and prosecutors experience difficulties chiefly in determining
what is obscene based on “contemporary community standards” and in
coping with Fourth Amendment problems relative to search for and seizure
of allegedly obscene materials. Thus, obscenity prosecutions frequently
fail. Today, much that was once considered to be obscene is readily
available to anyone on the Internet and pay-per-view television. In recent
years, law enforcement has shifted its attention away from traditional
obscenity and toward child pornography, which the courts have said is not
entitled to any constitutional protection.51
Gambling
To gamble means to risk money on an event, chance, or contingency in the
expectation of realizing a gain. The common law did not regard gambling
as an offense; however, the new American states made all or certain forms
of gambling illegal. Today, federal laws and a variety of state statutes and
local ordinances prohibit various forms of gambling. Bingo, craps,
baccarat, poker, raffles, bookmaking, and slot machines are examples of
common forms of gambling. However, the trend in America is toward
legalization of gambling, and there now exist numerous opportunities for
legal gambling.
Courts generally agree that to convict a defendant for a violation of a
gambling law the prosecution must establish three elements: (1) a
consideration, (2) a prize, and (3) a chance. Where gambling is prohibited,
laws customarily make it unlawful to possess gambling devices and
provide for their confiscation.
An analysis of the gambling laws extant in the United States is difficult
because laws often authorize certain forms of gambling by certain
organizations (usually church, fraternal, or other nonprofit activities) while
forbidding others to do the same acts. State statutes often create exceptions
for retail merchandising promotions and permit charitable, nonprofit, and
veterans’ organizations to conduct bingo games. Indeed, many states now
promote lotteries to supplement tax revenues. Further, a number of Native
American reservations have established casinos on sovereign tribal land.
Internet gambling sites also have become more prevalent, but Congress’s
enactment of The Unlawful Internet Gambling Act, which was originally
passed in 2006 but did not take effect until 2010, has curtailed the
proliferation of online poker sites.
Betting on sports events is also widespread in this country, but because
of the private consensual nature of such activity, any attempt to enforce
laws against participants is usually futile. Gambling laws present a
paradox, and enforcement must be directed primarily toward organized
gambling under control of crime syndicates. Legalized sports gambling is
currently permitted in Nevada, although some state legislators in New
Jersey are leading a movement to legalize sports gambling there.
If a statute prohibiting gambling makes intent an element of the offense,
the prosecution must prove the defendant’s intent; otherwise, it is
sufficient merely to prove the act of gambling. In some jurisdictions,
statutes provide that it is a defense if the actor reasonably believed that the
gambling conduct was permitted under bingo or charitable raffle laws.
Defendants frequently raise constitutional issues relating to search and
seizure problems and in some instances a defendant charged with
gambling might succeed in establishing entrapment, a defense discussed
later in this chapter.
Drug and Alcohol Offenses
The misuse of drugs and alcohol is among the oldest vices in society. The
common law had little to say about the abuse of alcohol and did not
address illicit drugs. Consequently, these offenses are based on statutory
enactments reflecting the adverse social consequences of alcohol and drug
abuse.
The Federal Controlled Substances Act52 establishes schedules
classifying controlled substances according to their potential for abuse and
provides penalties for offenses involving the manufacture, sale,
distribution, and possession of controlled substances. Specifically, there
are five schedules, with Schedule I representing the most regulated class of
substances and Schedule V representing the least regulated class of
substances (such as cough suppressants). Schedule I drugs are said to have
“high potential for abuse” and “no accepted medical usage,” and include
heroin and marijuana—with the latter’s placement as a Schedule I
substance serving as a source of controversy for many, especially in light
of cocaine’s placement as a Schedule II drug.
All states provide similar versions of the Federal Controlled Substances
Act, usually setting mandatory penalties for those who sell large quantities
of contraband or controlled substances that have a high potential for abuse.
Although most narcotics offenses are felonies, it has become common for
states to provide that where possession of a very small quantity of
marijuana is involved, the offense is reduced to a misdemeanor. Despite
numerous challenges, drug laws generally have been upheld, as courts are
reluctant to reassess legislative judgments in this area. Furthermore,
legislatures themselves have been reluctant to embrace any efforts to
legalize certain types of controlled substances. Typically, efforts to
legalize the use of illegal substances for medicinal purposes have taken the
form of “ballot initiatives,” whereby citizen petitions result in the passage
of legislation by the people. Currently, over twenty states permit the usage
of limited quantities of marijuana for medical purposes.
Additionally, in November 2012, voters in Colorado and Washington
passed ballot initiatives that legalized possession of up to one ounce of
marijuana. Colorado’s initiative took effect on January 1, 2014, and
Washington’s was implemented on July 8, 2014; in both states, possession
is limited to those 21 years or older. Other states have taken the step of
“decriminalizing” marijuana by shifting penalties for possession from
criminal offenses to civil offenses; in practical terms, such a shift means
that those caught in possession would face no more than a fine. In March
of 2014, legislators in Maryland and in the District of Columbia took the
step of decriminalizing marijuana, joining sixteen other states that had
done so previously.
Beyond regulations on the possession and distribution of illegal drug
use, all states prohibit operating a vehicle in public while intoxicated
(D.W.I.) or while under the influence of intoxicating liquors or drugs
(D.U.I.). Some states prohibit driving with an unlawful blood alcohol level
(D.U.B.A.L.). By 2000, eighteen states and the District of Columbia had
decreased the level of blood alcohol required to establish legal intoxication
to .08 percent or above. This nationwide trend was promoted by an act of
Congress passed in the summer of 1998 under which states receive
lucrative federal grants for lowering the prohibited blood-alcohol level to
.08. As of 2012, all fifty states and the District of Columbia now have laws
making it an offense to drive with a blood-alcohol concentration at or
above 0.08 percent. Further, even in states that have legalized marijuana
possession, driving under the influence of the drug remains a criminal
offense.
Curfews
In recent years, many cities and counties across the United States have
enacted ordinances imposing curfews on juveniles. Most of these laws
prohibit juveniles from being on public streets or in other public places
from midnight to 6:00 a.m. unless accompanied by a parent or guardian or
another adult approved by the juvenile’s parent or guardian. Curfew laws
that provide exceptions concerning work, school and civic events, travel,
and emergencies generally have been upheld by the courts against
constitutional challenges based on due process and equal protection
arguments.
Weapons Offenses
The Second Amendment to the United States Constitution provides that “a
well regulated Militia, being necessary to the security of a free state, the
right of the people to keep and bear Arms, shall not be infringed.”
Nevertheless, there are numerous statutory prohibitions against the
manufacture, sale, possession, and use of firearms and other weapons. For
example, states commonly enact statutes making it unlawful to carry a
concealed weapon without a permit. The federal Gun Control Act of 1968
established a fairly comprehensive regime governing the distribution of
firearms.55 For example, federal law prohibits the sale, possession, and use
of machine guns and other automatic weapons. The Supreme Court has
upheld these prohibitions against challenges based on the Second
Amendment.56 State courts have generally been unsympathetic to
challenges to state gun control laws based on state constitutional
provisions.
The most notable judicial decision on gun control occurred in 2008,
when the Supreme Court struck down a District of Columbia ordinance
effectively prohibiting the possession of all handguns within the District.57
The Court said that the Second Amendment confers a personal right to gun
possession for personal protection, but the Court noted that there is ample
room for reasonable regulation of firearms. The Court’s decision prompted
a new wave of constitutional challenges to local gun control laws around
the country. In 2010, the Court reaffirmed the notion that gun possession
in the home is protected by the Second Amendment when it struck down a
city of Chicago ban.58 That case, McDonald v. City of Chicago,
incorporated the Second Amendment. Nevertheless, because senseless gun
violence continues to plague America’s cities, and even its schools and
universities, a debate rages in the land over the need for tougher gun
control legislation and/or increased enforcement of existing prohibitions.
The common law recognized the need to deter and, if necessary, to punish
those who corrupt the orderly processes of government and the
administration of justice. In the United States, federal and state statutes
proscribe such offenses as bribery, perjury, subornation of perjury,
obstruction of justice, resisting arrest, compounding a crime, and
escape. Bribery consists of offering, giving, requesting, soliciting, or
receiving something of value to influence a public officer’s decision.
Perjury involves making a false statement under oath, while procuring
someone to lie under oath is subornation of perjury. Resisting arrest
involves behavior that keeps an officer from making an arrest. Accepting
something of value in exchange for an agreement not to prosecute a crime
is called compounding a crime. Finally, the crime of escape consists of a
person’s unlawfully leaving lawful custody. Statutory offenses defining
these crimes expand the common law and generally increase the severity
of these offenses from misdemeanors to felonies.
Courts have the power to hold a person in either civil or criminal
contempt. Civil contempt is a sanction imposed to coerce a recalcitrant
person to obey a court order, for example, for failing to pay court-ordered
support for dependents. A court imposes criminal contempt to punish an
offender whose deliberate conduct is calculated to obstruct or embarrass
the court or to degrade a judicial officer in the role of administering
justice.
ENVIRONMENTAL CRIME
Unlike common law crimes, offenses against the public health and the
environment are defined by statutes enacted by the federal and state
legislatures. While not faced with the severe environmental problems of
our age, the common law did regard wildlife, game, and fish as resources
to be preserved. In the United States, the state and federal governments
have for many years enacted regulations and imposed criminal sanctions
on poachers to protect these resources for the benefit of the public. Many
offenses relating to public health developed during the industrial
revolution as a result of the widespread distribution of food, drugs, and
cosmetics and the need to control communicable diseases. By the early
1900s, municipalities perceived the need for zoning to control nuisances
and to regulate land use. Since the middle of this century, pollution of the
ground, water, and air has been recognized as a major threat to the health
and welfare of the people and, indeed, to the ecological balance of the
earth.
Enforcement of regulations in these fields is accomplished largely by
regulatory agencies and through measures imposing civil liability.
Nevertheless, legislatures have found it necessary to impose criminal
sanctions to effectively enforce standards and to deter violators. In contrast
to the typical common law crimes, environmental crimes usually involve
an offender’s neglect to comply with required standards or failure to take
action required by law. These are mala prohibita offenses, and statutes
criminalizing conduct in these areas generally contemplate a lower level of
intent, frequently imposing a standard of strict liability.
MILITARY OFFENSES
DEFENSES
Infancy
The common law protected very young children from the harshness of the
law by presuming a child under age seven to be incapable of forming
criminal intent. This presumption of incapacity was rebuttable for a child
over seven but under fourteen, with the prosecution having to demonstrate
that a child under fourteen was capable of comprehending the wrongdoing
involved in commission of an offense. Children over age fourteen were
treated as adults. In many American jurisdictions, these presumptions are
no longer viable because legislatures have provided that children under
certain ages are subject to the jurisdiction of juvenile courts, where
procedures are tailored toward less mature offenders. Although different
states define “juveniles” with different age standards, under federal law, a
juvenile is a person who has not attained age eighteen at the time of the
commission of an offense.61 Some jurisdictions also allow for juveniles to
be tried as adults for certain offenses.
Intoxication
English common law did not excuse a person who voluntarily became
intoxicated from responsibility for criminal conduct. American courts
distinguish voluntary intoxication from involuntary intoxication. In most
jurisdictions, voluntary intoxication may be considered in determining
whether a defendant can formulate the specific intent required in such
crimes as larceny, burglary, and premeditated murder. A few courts will
not even permit a jury to consider voluntary intoxication on the issue of
specific intent. Courts typically reject the defense of voluntary intoxication
in respect to general-intent crimes such as voluntary manslaughter and
most sexual offenses. Involuntary intoxication rarely occurs, but when it
does, it can relieve the criminality of an act committed under its influence
if, as a result of intoxication, the defendant no longer knows right from
wrong.
Insanity
All persons are presumed sane unless previously adjudicated insane. The
concept of mental responsibility has historic roots in Anglo-American law
because common law crimes included a mens rea, the mental element. The
M’Naghten Rule developed at common law provides, “it must be clearly
proved that, at the time of committing the act, the party accused was
labouring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing; or, if he did know it,
that he did not know what he was doing was wrong.” 62 By the mid-1800s,
the M’Naghten Rule had become the test for insanity used in both federal
and state courts in the United States.
In 1962, the American Law Institute (ALI) proposed a new standard
sometimes referred to as the substantial capacity test. It provides that “a
person is not responsible for criminal conduct if at the time of such
conduct, as a result of mental disease or defect, a person lacks substantial
capacity either to appreciate the wrongfulness of his conduct or to conform
his conduct to the requirements of the law.” Most federal courts have
adopted the ALI standard.
The defense of insanity has never been popular with the public,
sometimes being called “a rich person’s defense,” because defendants who
invoke it frequently expend considerable financial resources to present
psychiatric testimony. Few cases have caused as great a concern over the
functioning of the criminal justice system in the United States as the
verdict of “not guilty by reason of insanity” in the federal court trial of
John Hinckley for the 1981 shooting of then President Ronald Reagan, his
press secretary, and two law enforcement officers. The Hinckley verdict
motivated Congress and several state legislatures to review the status of
insanity defenses. Dissatisfied with the ALI test, which was applied in the
Hinckley trial, Congress decided to eliminate the volitional prong in the
federal test for insanity and to revert substantially to the M’Naghten Rule
when it enacted the Insanity Defense Reform Act of 1984. This Act
provides that in federal courts:
[i]t is an affirmative defense to a prosecution under any Federal statute that, at the time of
the commission of the acts constituting the offense, the defendant, as a result of a severe
mental disease or defect, was unable to appreciate the nature and quality or the
wrongfulness of his acts. Mental disease or defect does not otherwise constitute a
defense.63
Automatism
Older cases treat defendants who claim that their unlawful acts were
committed because of an involuntary condition such as somnambulism
(i.e., sleepwalking) within the context of the insanity defense. Newer cases
tend to classify such involuntary actions as automatism and view them as a
basis for an affirmative defense independent from insanity. The defense is
usually limited to a situation where criminal conduct is beyond a person’s
knowledge and control. Where a defendant is acquitted of an offense
because of automatism, generally there are no follow-up consequences
such as institutionalization, which often occurs when a defendant is
acquitted by reason of insanity.
Duress
The common law recognized that duress can be a defense to criminal
charges if the coercion exerted involved the use of threats of harm that
were present, imminent, and pending and of such nature as to include well-
grounded apprehensions of death or serious bodily harm if the act was not
done. Not even the threat of imminent death was sufficient to excuse the
intentional killing of an innocent human being. The defense of duress,
sometimes referred to as “coercion, compulsion, or duress,” is recognized
today either by statute or decisional law. American courts have generally
ruled that a threat of future harm is not sufficient to constitute duress.
Duress has been asserted most frequently by defendants who have
committed robberies and thefts and by prisoners who have escaped from
custody.
Necessity
Early common law cases recognized the defense of necessity. Suppose
several people are shipwrecked on a cold night. One person swims to
shore, breaks into an unoccupied beach cottage, and takes food and
blankets to assist the injured until help can be secured. Prosecution in such
an event would be unlikely, but if prosecuted, the defendant would
properly plead the defense of necessity. American courts hold that if there
is a reasonable legal alternative to violating the law, the defense of
necessity fails.
Recently, defendants have attempted to justify actions involving “civil
disobedience” on the ground of necessity in instances where they have
forcefully asserted their personal or political beliefs. In most—but not all
—cases, the necessity defense has been unavailing to defendants espousing
social and political causes. For example, several defendants were charged
with criminal trespass when they refused to leave an abortion clinic in
Anchorage, Alaska. They claimed their actions were necessary to avert the
imminent peril to human life that would result from performance of
abortions. In rejecting their contention, the Alaska Supreme Court outlined
three requirements that must be met by a person who pleads the defense of
necessity: (1) the act charged must have been done to prevent a significant
evil; (2) there must have been no adequate alternative; and (3) the harm
caused must not have been disproportionate to the harm avoided.66
Consent
Because a victim may not excuse a criminal act, historically, courts have
said that consent is not a defense to a criminal prosecution. But there are
exceptions to this general statement. For example, where lack of consent is
an element of the offense, as in larceny, consent is a defense. This may be
true in a prosecution for rape, but only where competent adults freely
consent before having sexual relations. Consent also is commonly given to
physicians who perform surgery. In contact sports, such as football and
boxing, consent is implied and may be a defense to reasonable instances of
physical contact that may otherwise be regarded as batteries. Of course, a
valid consent presupposes that it is voluntarily given by a person legally
competent to do so.
Mistake of Law
One of the oft-quoted maxims of the law is that “ignorance of the law is no
excuse.” But in some instances, a defendant’s honest, but mistaken, view
of the law may be accepted as a defense. One example is where such a
mistake negates the specific-intent element of a crime. Thus, a mistake of
law may be asserted as a defense in a larceny case where there is a
technical question of who has legal title to an asset. Likewise, a
defendant’s good-faith, but mistaken, trust in the validity of a divorce has
been held to be a defense to a charge of bigamy. However, a court will
never recognize a dishonest pretense of ignorance of the law as a defense.
Mistake of Fact
In contrast to the ancient common law maxim that “ignorance of the law is
no excuse,” at common law, ignorance or mistake of fact, guarded by an
honest purpose, afforded a defendant a sufficient excuse for a supposed
criminal act. American courts have agreed, but normally a mistake of fact
will not be recognized as a defense to a general-intent crime unless the
mistake is a reasonable one for a person to make under the circumstances.
However, even an unreasonable mistake may be asserted as a defense to a
crime that requires a specific intent. An example of a mistake of fact might
be a person at an airport accidentally taking a piece of luggage that looked
similar to their own. Because most theft statutes require a showing of
specific intent, the individual’s mistake in taking in the wrong piece of
luggage might preclude criminal prosecution for theft.
In strict-liability offenses, though, the defense of mistake of fact is
unavailing since these offenses are not based on intent. Having consensual
sexual relations with a minor is considered a strict-liability offense in some
jurisdictions, and a mistake of fact as to a minor’s age is generally not a
defense. Even if a court finds that a statutory rape statute requires proof of
a general criminal intent to convict, a defendant’s reasonable mistake of
fact concerning a female’s age is usually not available as a defense. In the
past decade, trial courts have also rejected the contention that because a
minor female can consent to an abortion, she should be able to consent to
sexual intercourse. Yet, some judges and legislators have questioned the
need to employ a strict-liability standard in consensual sexual relationships
where a minor represents herself as an adult.
Self-Defense
Today, each state has laws that specifically define the circumstances under
which the use of lethal force is considered justified. As a starting point, all
states—with the exception of Ohio (and some Louisiana courts)—require
that the prosecutor prove, beyond a reasonable doubt, that self-defense is
not applicable. Thus, the burden of proof remains on the state even when
this defense is invoked. Past this point of commonality, though, subtle
variations in statutes from different states can dramatically impact the
implementation of self-defense principles.
One common variation across state laws is the matter of a “duty to
retreat,” which can be contrasted with a statutory grant to “stand-your-
ground.” At common law, a person attacked had a duty “to retreat to the
wall” before using deadly force in self-defense. A majority of modern
courts, however, have rejected the common law doctrine of requiring a
person to retreat to the greatest extent possible before “meeting force with
force.” 68 Rather, most state laws today suggest that a person attacked or
threatened is under no obligation to flee from the situation, and may stand
one’s ground and use any force reasonably necessary to prevent serious
bodily harm. Nevertheless, a minority of jurisdictions has adopted the
principle that a person who can safely retreat must do so before using
deadly force.69 Even states that follow the ‘retreat rule’, though, generally
have adhered to the notion that a person does not have to retreat while
inside that person’s own dwelling; and, this concept actually was
articulated by the Supreme Court of the United States in an 1895 case
called Beard v. United States—where a homeowner’s conviction for killing
an armed cow thief that had entered his property was overturned.
A widely-publicized self-defense case involving a “stand-your-ground”
provision emanated from an incident that took place on the night of
February 26, 2012 in Sanford, Florida. There, George Zimmerman, a
neighborhood watch coordinator, fatally shot an unarmed 17-year-old
named Trayvon Martin. Zimmerman claimed that he acted in self-defense
after Martin repeatedly punched him, and Zimmerman exhibited wounds
to his face and head. Florida self-defense laws state that one may use lethal
force when that person “reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to himself or herself or
another or to prevent the commission of a forcible felony.” 70 Furthermore,
Florida law also includes a “stand-your-ground” provision that absolved
Zimmerman of any duty to retreat from an attack.71 In light of these
mandates, local authorities declined to press charges against Zimmerman.
Subsequently, however, a special prosecutor charged him with second-
degree murder. Ultimately, on July 13, 2013, following a trial that lasted
approximately three weeks, a jury found that Zimmerman was not guilty of
any homicide offense.
Another self-defense case from Florida, dubbed the so-called “Loud
Music Shooting” by some members of the media, also has garnered
national attention. On November 23, 2012, at a gas station in Jacksonville,
a man named Michael Dunn was involved in a verbal dispute with four
teenagers concerning loud music that was emanating from their car. As the
situation escalated, Dunn fired 10 shots at the teenagers’ vehicle, killing an
18-year-old named Jordan Davis. Dunn fled the scene immediately after
the shooting, and later claimed that he was threatened and thought that he
saw a gun pointed at him. A jury later convicted Dunn on three counts of
attempted second-degree murder. However, the jury was deadlocked on
the charge of murder in the matter of Davis’ death, resulting in a mistrial
on that count; in a re-trial, Dunn was convicted of murder and sentenced to
life in prison.
Defense of Others
At common law, a defender had the right to use reasonable force to
prevent commission of a felony or to protect members of the household
who were endangered. The trend in American jurisdictions is to allow a
person “to stand in the shoes of the victim” and to use such reasonable
force as is necessary to defend anyone from harm, irrespective of
relationship. Courts in many states limit a person’s right to defend another
individual from harm to those persons who “reasonably believe” that force
is necessary to protect another. Some courts take a more restrictive view
and hold that an intervener is justified in using force to defend another
only if the party being defended would have been justified in using the
same force in self-defense. Of course, under either standard, the right to go
to the defense of another does not authorize a person to resort to retaliatory
force.
Defense of Habitation
The common law held that “a man’s home is his castle” and placed great
emphasis on the security of a person’s dwelling by permitting the use of
deadly force against an intruder. This is sometimes referred to as the castle
doctrine. Courts generally have said that the use of deadly force is
justified to prevent a forcible entry into a habitation in circumstances such
as where threats have been made against the occupant or other occupants,
or where the occupant reasonably apprehends death or great bodily harm
to self or other occupants, or where the occupant reasonably believes that
the assailant intends to commit a felony. Even so, variation exists across
states in regard to justifying the use of lethal self-defense inside the home.
Tennessee, for example, allows the use of deadly force in all situations
where an intruder “forcibly enters” the home,73 while Minnesota permits
the use of deadly force in the home only when necessary to prevent
another from committing a felony.74 In 2014, a 65-year-old Minnesota
man named Byron Smith actually was found guilty of murder for shooting
two teenage burglars multiple times; prosecutors were able to convince a
jury that Smith’s multiple shots exceeded the scope of what was necessary
to prevent commission of a felony.
Application of the castle doctrine also can vary in other situations. For
example, while a householder may, under some circumstances, be justified
in using deadly force, the householder normally would not be justified in
taking a life to repel a mere trespass onto surrounding property—although
states vary in regard to how they treat the “curtilage,” a term that refers to
areas immediately surrounding the home (such as a porch). Jurisdictions
also have been divided as to whether the castle doctrine applies to
incidents involving co-occupants or other people who are legally on the
premises. As with other self-defense provisions, then, different states
evince subtle variations in their applications of the castle doctrine.
Defense of Property
The right to defend your property is more limited than the right to defend
your home or yourself. The common law allowed a person in lawful
possession of property to use reasonable, but not deadly, force to protect it.
Today, the use of force to protect a person’s property is often defined by
statute. Typically, these laws are similar to an Iowa law that provides: “[A]
person is justified in the use of reasonable force to prevent or terminate
criminal interference with his or her possession or other right to property.”
75 Most states generally follow this standard, but recently some have
Immunity
A witness compelled to give incriminating testimony receives use
immunity (i.e., the testimony given cannot be used against the witness).
This form of immunity meets the demands of the Constitution.77 In some
states, a witness who testifies under a grant of immunity is given
transactional immunity, a broader protection than required under the
federal Constitution. Transactional immunity protects a witness from
prosecution for any activity mentioned in the witness’s testimony. Despite
a grant of immunity, a witness may be prosecuted for making material
false statements under oath.
Sometimes a prosecutor, with approval of the court, grants a witness
contractual immunity to induce a suspect to testify against someone and
thereby enable the prosecution to obtain a conviction not otherwise
obtainable because of the constitutional protection against self-
incrimination. This type of immunity is rarely granted if other available
evidence will lead to a conviction. The authority to grant immunity in
federal courts is vested in the United States Attorney with approval of the
Attorney General or certain authorized assistants.78 At the state level, such
authority typically is vested in the chief prosecuting officer (i.e., the
district or state attorney).
Under international law, a person who has diplomatic status and serves
as a part of a diplomatic mission, as well as members of the diplomat’s
staff and household, is immune from arrest and prosecution, thus enjoying
diplomatic immunity.
Double Jeopardy
The concept of forbidding retrial of a defendant who has been found not
guilty developed under English common law. The Fifth Amendment to the
United States Constitution embodies the principle by stating, “[N]or shall
any person be subject for the same offence to be twice put in jeopardy of
life or limb.” The Double Jeopardy Clause forbids a second prosecution
for the same offense after a defendant has been acquitted or even after a
conviction.79 But, if a defendant appeals from a conviction and prevails, it
is not double jeopardy for the prosecution to retry the defendant, unless
the appellate court rules that there was insufficient evidence to sustain the
defendant’s conviction.80 Nor is it double jeopardy to retry a defendant if
the trial court, at the defendant’s request, has declared a mistrial.81 If,
however, the government moves for a mistrial, the defendant objects, and
the court grants the mistrial, the prosecution must establish a manifest
necessity for the mistrial in order for a retrial to be permitted.
Some offenses are crimes against both the federal and state
governments. The standard policy, and in some instances state law, forbids
a second prosecution once an offender has been prosecuted in a different
jurisdiction. Nevertheless, under our federal system, the Double Jeopardy
Clause does not preclude a prosecution by both the federal and state
governments, since separate sovereigns are involved.82 Yet this principle
does not allow two courts within a state to try an accused for the same
offense.83 In addition to protecting against a second prosecution for the
same offense after conviction or acquittal, the Double Jeopardy Clause
protects against multiple punishments for the same offense.84 The
Constitution, however, does not define “same offense.” In Blockburger v.
United States (1932) the Supreme Court said that “[t]he applicable rule is
that, where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one is whether each provision requires proof
of an additional fact which the other does not.” 85
Thus, the Blockburger test focuses primarily on the elements of the
crimes in question, and less so on the facts. However, not all courts have
regarded Blockburger as the exclusive method of determining whether
successive prosecutions violate the principle of double jeopardy. Indeed,
some courts look also to the evidence to be presented to prove those
crimes.
Statutes of Limitation
A statute of limitations is a legislative enactment that places a time limit
on the prosecution of a crime. Common law placed no time limits on
prosecution. There is no federal constitutional basis to limit the time in
which a prosecution can be initiated. Nonetheless, the federal government
and almost all states have laws that prescribe certain time limits for
prosecution of most offenses, except murder. There are two primary public
policy reasons for enacting statutes of limitations on the prosecution of
crimes. First, it is widely accepted that a person should not be under threat
of prosecution for too long a period. Second, after a prolonged period,
proof is either unavailable or, if available, perhaps not credible.
Statutes of limitations seldom place time limits on prosecutions for
murder and other very serious offenses. This fact was dramatized in 1994
when Byron De La Beckwith was convicted for the June 1963 murder of
Medgar Evers. Evers was an official of the National Association for the
Advancement of Colored People, and his death galvanized support for the
enactment of civil rights laws in the 1960s. Two trials in 1964 ended in
deadlocked juries. But after extended litigation, and a lapse of more than
thirty years since the victim’s death, a Mississippi jury found De La
Beckwith guilty of killing Evers.
Under most statutes of limitations, the period for prosecution begins
when a crime is committed, and not when it is discovered. The period ends
when an arrest warrant is issued, an indictment is returned, or an
information is filed. The period of limitations is interrupted while a
perpetrator is a fugitive or conceals him or herself from authorities. This
cessation of the statute of limitations is often referred to as the “tolling” of
the statutory period.
Federal statutes of limitations provide a five-year limitations period on
prosecution of noncapital crimes.86 While limitations periods vary among
the states, most provide five- to seven-year limitations on the prosecution
of felonies other than murder, one to two years on major misdemeanors,
and a year or less on minor misdemeanors.
CASE IN POINT
In 1987, Keith Jacobson was indicted for violating the Child Protection
Act of 1984, which criminalizes the knowing receipt through the mails of a
“visual depiction [that] involves the use of a minor engaging in sexually
explicit conduct.” At trial, Jacobson contended the government entrapped
him into committing the crime. A jury found him guilty, and his conviction
was affirmed by the Court of Appeals. The United States Supreme Court
granted review. In evaluating the evidence at Jacobson’s trial, the Supreme
Court found that while it was still legal to do so, Jacobson ordered some
magazines containing photos of nude boys. After Congress enacted the
Child Protection Act making this illegal, two government agencies learned
that Jacobson had ordered the magazines. The agencies sent mail to
Jacobson through fictitious organizations to explore his willingness to
break the law. He was bombarded with solicitations, which included
communications decrying censorship and questioning the legitimacy and
constitutionality of the government’s efforts to restrict availability of
sexually explicit materials. Jacobson finally responded to an undercover
solicitation to order child pornography and was arrested after a controlled
delivery of the explicit sexual materials. After pointing out that for twenty-
six months the government agents had made Jacobson the target of
repeated mailings, the Court held that the prosecution failed to produce
evidence that Jacobson was predisposed to break the law before the
government directed its efforts toward him. Adding that government
agents may not implant a criminal design in an innocent person’s mind and
then induce commission of a crime, the Court reversed Jacobson’s
conviction, observing that Congress had not intended for government
officials to instigate crime by luring otherwise innocent persons to commit
offenses.
Selective Prosecution
Selective enforcement of the criminal law is not itself a constitutional
violation, and therefore, without more, it does not constitute a defense.88
To prevail on the defense of selective prosecution, a defendant must
demonstrate that other similarly situated persons have not been prosecuted
for similar conduct, and that prosecution was based on some impermissible
ground such as race, religion, or exercise of the First Amendment rights of
free speech.
Nontraditional Defenses
Although they are rarely successful, defendants sometimes employ novel
and innovative defenses. Where a novel defense leads to an acquittal,
appellate courts do not have an opportunity to evaluate the legal basis of
the defense, so precedent is slow to develop. Such defenses have alleged a
victim’s negligence, premenstrual syndrome (PMS), compulsive gambling,
post-traumatic stress syndrome (PTSS) (which often refers to the
psychological reaction to the unique stresses suffered during combat), the
junk food defense, and pornographic or television intoxication. Other
unusual defenses include urban survival syndrome, XYY chromosome
abnormality, black rage, multiple personalities, and even the notion of an
affluent upbringing (“affluenza”).
PUNISHMENT OF OFFENDERS
Law and society both demand that criminals be punished for their offenses.
Defendants who are convicted face a variety of punishments, depending on
the nature and severity of their crimes. These punishments are designed to
meet one or more of the basic goals of the criminal justice system:
retribution, deterrence, rehabilitation, and incapacitation.
■ Retribution. Literally, this term refers to something demanded as
payment. In criminal justice, retribution is the idea that the criminal
must pay for wrongs perpetrated against society. The biblical phrase “an
eye for an eye” can be invoked in this regard.89 Another oft-used phrase
is that criminals must be given their “just deserts.” Some people
question whether retribution, or legalized vengeance, is a legitimate goal
of criminal justice. One response is that the desire for revenge is deep-
seated in the human psyche and that if the state does not exact
vengeance, individuals will resort to vigilantism. Another defense of
retribution focuses on the need for expiation of guilt—criminals must
suffer in order to atone for their wrongs. Finally, defenders of
retribution note that it involves proportionality—offenders are
punished, but punishment must fit the crime.
■ Deterrence. This is the idea that punishing persons who commit
crimes will prevent other similarly disposed individuals from
committing like offenses. Criminals must be punished to the degree
necessary to impress those who would emulate them of the undesirable
consequences of crime. This assumes, of course, that potential criminals
are rational calculators of costs and benefits associated with particular
courses of action. In many cases, this may be basically true, but it
certainly does not apply to crimes of passion. Another problem with the
deterrence theory is that some people discount the negative
consequences of crime by the improbability of being caught. To be an
effective deterrent, punishment would have to be so severe that even
those who did not believe that they were going to be caught would not
take the risk. We could, for example, increase compliance with speed
limits by executing those who are caught speeding, but such a
punishment would be unthinkable. In practice, the criminal justice
system strives to achieve deterrence, but not at the expense of
proportionality in punishment.
■ Rehabilitation. Perhaps the loftiest goal of the criminal justice
system, rehabilitation means changing the offender to function in civil
society without resorting to criminal behavior. On its face, this is the
most appealing theory of criminal punishment. We would like to believe
that by punishing people we can improve them. Of course, rehabilitation
involves more than punishment. It entails various sorts of programs and
therapies, each of which is based on its own theory of what causes
criminal behavior. Today, high recidivism (repeat offending) rates
among those convicted of felonies have made society much less
sanguine about its ability to rehabilitate “hardened criminals.”
■ Incapacitation. The idea here is that that punishment should prevent
criminals from committing additional crimes. Contemporary American
society resorts to imprisonment or, in extreme cases, execution to rid
itself of seriously threatening behavior. While nearly everyone favors
incapacitation of violent offenders, in practice, incapacitation extends
beyond the execution or incarceration of violent criminals. For instance,
when the state revokes the driver’s license of someone convicted of
driving while intoxicated, the purpose is primarily incapacitation.
Similarly, some states have laws offering convicted sex offenders the
option of taking a drug that may eliminate sexual impulses.
Each of these justifications for punishment is somewhat controversial,
and there is not a consensus as to which of these goals should be
paramount. As we examine particular punishments, the student should
reflect on which of these objectives is being served.
Historical Background
Under English common law, persons convicted of misdemeanors were
generally subjected to corporal punishment like flogging. The
misdemeanant was taken into the public square, bound to the whipping
post, and administered as many lashes as were prescribed by law for the
offense. At common law, felonies were punishable by death. In the early
days of the common law, nobles who committed capital crimes were
shown mercy by simply being beheaded. Commoners who were sentenced
to death were often subjected to more grisly forms of punishment—they
were broken on the wheel, burned at the stake, or drawn and quartered.
Eventually, the comparatively humane method of hanging was adopted as
the principal means of execution in England.
In colonial America, criminal punishment followed common law
practice, although the Massachusetts Code of 1648 mandated the death
penalty in cases of witchcraft, blasphemy, sodomy, adultery, and “man
stealing,” as well as the common law capital crimes. During the colonial
period of American history, and indeed well into the nineteenth century,
the death penalty was often inflicted for a variety of felonies, including
rape, arson, and horse theft. And corporal punishment, primarily flogging,
was widely used for a variety of crimes, including many misdemeanors.
The American Bill of Rights, ratified in 1791, prohibited the imposition
of “cruel and unusual punishments” through the Eighth Amendment. The
Framers of the Bill of Rights sought to prevent the use of torture, which
had been common in Europe as late as the eighteenth century. They did not
intend, however, to outlaw the death penalty or abolish all forms of
corporal punishment. The meaning of cruel and unusual punishment has
changed markedly since 1791. As the Supreme Court noted in 1958, the
Cruel and Unusual Punishments Clause “must draw its meaning from the
evolving standards of decency that mark the progress of a maturing
society.” 90
In the early nineteenth century, reformers introduced the concept of the
penitentiary, literally, “a place to do penance.” The idea was that
criminals could be reformed through isolation, Bible study, and hard labor.
These gave rise to the notion of rehabilitation, the belief that the criminal
justice system could reform criminals and reintegrate them into society.
Many of the educational, occupational training, and psychological
programs found in modern prisons are based on this theory.
By the twentieth century, incarceration replaced corporal punishment
as the mainstay of criminal punishment. All states, as well as the federal
government, constructed prisons to house persons convicted of felonies.
Even cities and counties constructed jails for the confinement of persons
convicted of misdemeanors. The death penalty remained in wide use,
however, for the most serious violent felonies. But, the gallows were
replaced by the firing squad, the gas chamber, the electric chair, and,
eventually, lethal injection.
Incarceration
Today, incarceration is the conventional mode of punishment prescribed
for persons convicted of felonies. Under federal and state law, felonies are
classified by their seriousness, and convicted felons may be imprisoned for
periods ranging from one year to life. Incarceration usually is available as
a punishment for those convicted of the more serious misdemeanors, but
only for up to one year in most jurisdictions. While it was originally
thought to be an effective means of rehabilitation, most criminologists now
view incarceration simply as a means of isolating those persons who pose
a serious threat to society.
In 2008, the U.S. Department of Justice reported that by mid-2007,
1,595,037 inmates were incarcerated in federal and state prisons. Of these
inmates, 87.5 percent of these inmates were in state prisons; the remaining
12.5 percent were under federal jurisdiction. When local jail populations
were added in, the number of inmates reached nearly 2.3 million.102
Indeed, the total number of prison and jail inmates has more than
quadrupled in the last three decades. This tremendous increase reflects the
fact that during the 1980s and 1990s, federal and state sentencing laws
were amended to increase the length of prison terms given to convicted
felons. Unfortunately, many prisons are now seriously overcrowded to the
point that courts must limit the number of inmates who can be confined.
Prisoners’ Rights
The federal courts have made it clear that the Eighth Amendment’s
prohibition against “cruel and unusual punishments” imposes obligations
on prison administrators to maintain certain standards of confinement.
Traditionally, courts adopted a “hands-off” policy, allowing prison
officials free rein. In the late 1960s, that began to change, as federal and
state tribunals came to examine prison conditions and policies. As the
courts signaled their willingness to scrutinize the prisons, litigation
mushroomed. In the past two decades, litigation in the federal courts by
prisoners has increased dramatically, often challenging conditions of
prison overcrowding. In 2011, the Supreme Court ruled that severe
overcrowding in California state prisons mandated a 137.5 percent
decrease in the state’s prison population. The Court’s rationale was
connected to the adverse impact that overcrowding has on the medical care
provided to inmates.103
A sizable number of other state prison systems have been or are
currently under court orders to improve conditions of confinement or
reduce overcrowding. In recent years, some state courts have begun to
focus their attention on the deplorable conditions existing in many city and
county jails. As currently interpreted, the Eighth Amendment requires that
prisoners must be provided with reasonably adequate food, clothing,
shelter, medical care, and sanitation and that there must be a reasonable
assurance of their personal safety. In 1992, the Supreme Court held that a
prisoner who is beaten maliciously by guards may bring a civil action for
damages based on a claim of cruel and unusual punishment, even if the
prisoner does not suffer “significant injuries.” 104
The courts also have held that a prison inmate retains those First
Amendment rights “that are not inconsistent with his status as a prisoner or
with the legitimate penological objectives of the corrections system.” 105
For example, under the Free Exercise Clause of the First Amendment,
courts have been generally receptive to prisoners’ rights to possess bibles,
prayer books, and other religious materials, as well as inmates’ rights to be
visited by the clergy. On the other hand, courts have upheld restrictions on
religious exercises if they disrupt prison order or routine.106
One of the most firmly established rights of prisoners is the right of
access to the courts. The Supreme Court made it clear decades ago that
prison officials may not deny inmates access to the courts, nor penalize
them for utilizing that access.107 Similarly, the Court has held that indigent
inmates must be furnished writing materials and notarial services to assist
them in filing petitions and seeking writs from courts, and has upheld the
right of prisoners to meet with counsel in privacy and, in the absence of
other forms of legal assistance, to have access to law libraries.108
The courts also have recognized that prisoners retain a limited right to
communicate with the outside world via the mails, although prison
officials may limit and censor the mail prisoners send and receive,
provided there is no interference with attorney-client relationships. Prison
officials also have broad latitude to restrict visitation privileges if there is
reason to believe that an inmate is receiving contraband being smuggled
into the prison by visitors.109 Likewise, prison regulations impinging on
inmates’ interests in free assembly and association have been consistently
upheld. The federal courts have imposed limits on prison disciplinary
measures such as corporal punishment and the extended use of punitive
isolation. Today, prison discipline is largely accomplished by the granting
and removal of good-time credit, that is, early release for good behavior.
Parole
Traditionally, most states have provided for early release from prison on
parole for those inmates who can demonstrate to the satisfaction of a
parole board their willingness to conform their conduct to the
requirements of the law.110 Of course, persons released on parole must
submit to a number of conditions. If these conditions are violated, parole
can be revoked and the offender returned to prison to serve the remainder
of the original sentence. The Federal Sentencing Reform Act of 1984
abolished parole for federal offenders who commit offenses on or after
November 1, 1987. Many states have followed the lead of the federal
government and have abolished or restricted parole. However, in
jurisdictions where overcrowding is an issue, parole may be granted after
as little as 30 percent of a sentence is served.
Alternatives to Incarceration
Although society must be protected from violent offenders who have
shown no inclination toward reform, today we recognize that
imprisonment is not the appropriate punishment for all convicted felons.
Moreover, the overcrowding of penal institutions mandates the
consideration of alternatives. Of course, there are other means of punishing
nonviolent offenders, first-time offenders, and those who have potential
for rehabilitation. One of the most common of these is probation, where
the convicted person is not incarcerated in a penal institution but remains
under the close supervision of authorities. About three million adults are
on probation in the United States. Probation is usually conditioned on
restrictions on the probationer’s everyday conduct. The most extreme
limitations on conduct and movement take the form of house arrest.
Unfortunately, the success of probation can be hindered by inadequate
staffing, resulting in inadequate supervision of probationers. Increasingly,
probationers are being monitored through the use of electronic ankle
bracelets that allow officials to track their whereabouts.
Boot Camps
In recent years, state legislatures have experimented with military-style
boot camps as an alternative to prison. Boot camps are designed to instill
discipline in young offenders who have committed nonviolent offenses,
perhaps brought about by their drug abuse. In lieu of a prison sentence,
these offenders elect to undergo three to six months of training that may
include drug rehabilitation and work on public projects. Although boot
camps have produced some notable success stories, there is little evidence
that they are superior to conventional incarceration in terms of reducing
the rates of recidivism.
Community Service
The requirement that an offender perform community service is becoming
more attractive as a punishment for less serious crimes, especially for
juveniles and first-time offenders. Community service is regarded as a
more meaningful sanction than the imposition of a fine. It is also viewed as
less likely than incarceration to promote future criminal behavior. The
theory underlying community service is that an offender will become
aware of obligations to the community and how criminal conduct violates
those obligations. Community service is often imposed as a condition of
probation or as part of a pretrial diversion program in which first-time
nonviolent offenders are offered the opportunity to avoid prosecution by
completing a program of counseling or service.
Restitution
As society becomes more cognizant of the rights of crime victims, courts
are increasingly likely to require that persons convicted of crimes pay
sums of money to their victims by way of restitution. Typically,
requirements to make restitution are imposed in property crimes cases
where victims have suffered some sort of economic loss. On some
occasions, the requirement to pay restitution is one of several conditions
that must be met in order for the offender to gain release via probation.
The term “restitution” should not be confused with the term “retribution,”
which, as we noted above, is one of the classic justifications for imposing
criminal punishments.
CONCLUSION
To understand the criminal law, one must understand its social and
political aspects and its historical development. It was against this historic
common law background that the federal government and the states have
enacted statutes that refine the common law crimes and define new
offenses as the social, economic, and political development of this Nation
has evolved.
Federal, state, and local legislative bodies define crimes, and courts
interpret these legislatively enacted laws. But in each instance, the U.S.
Constitution requires crimes to be defined precisely. A crime ordinarily
involves two essential elements: an act and an intent; however,
increasingly governments have enacted strict-liability offenses where a
violator’s intent is irrelevant. A violator’s culpability may depend upon
that person’s role in the offense; under federal and state laws, one who aids
and abets the commission of a crime is regarded as a principal of that
offense. In some instances, an accessory after the fact is treated differently
today.
In reviewing this chapter, the student should grasp a basic understanding
of the inchoate crimes, crimes against persons and property, and offenses
against public order, justice, and the environment. Moreover, it is
important to have a basic knowledge of offenses unique to our military
forces. These are the basic building blocks of the criminal law. But, the
criminal law in America has expanded to proscribe white-collar offenses
and is making a concerted effort to combat organized crime. Responses to
governmental assault on vice have been mixed, yet there is support for
legalized protection of the most core moral values.
Historic defenses of alibi, use of force, and excuses and justifications for
commission of criminal acts remain. In recent decades, the approaches to
infancy and intoxication have often been modified to allow special
treatment for juveniles and intoxicated persons. Yet, there has been a trend
to take a firmer approach to pleas of insanity. The American penchant for
timely action against a wrongdoer also has brought about the statute of
limitations defense, and the U.S. Constitution has brought about defenses
against double jeopardy and wrongful conduct by government.
Finally, at this stage, it is relevant to recognize the roles that retribution,
deterrence, and rehabilitation have played in inflicting punishment on
wrongdoers through the death penalty, incarceration, and the growing
reliance on community-based alternatives. The U.S. Constitution again
appears in the punishment phase of the criminal justice system in its
evolving prohibition against cruel and unusual punishments and the
requirement that prisoners not be deprived of the most fundamental
constitutional rights.
KEY TERMS
accessories
actus reus
affirmative defenses
aggravated assault
aggravated battery
aiding and abetting
alibi
antitrust violations
arson
assault
assisted suicide
attempt
automatism
battered child syndrome
battered woman syndrome
battery
bid rigging
boot camps
bribery
burglary
capital crimes
carjacking
castle doctrine
causation
civil contempt
community service
compounding a crime
computer crimes
consent
conspiracy
contempt
contractual immunity
corporal punishment
corpus delicti
credit card fraud
criminal contempt
criminal intent
deadly force
death penalty
deterrence
diplomatic immunity
disorderly conduct
double jeopardy
duress
embezzlement
English common law
entrapment
environmental crimes
escape
excusable homicide
extortion
false imprisonment
false pretenses
felonies
felony murder
fines
first-degree murder
forfeiture
forgery
gambling
general intent
good-time credit
house arrest
in camera
incapacitation
incarceration
inchoate offense
infancy
insanity
insider trading
intoxication
justifiable homicide
justifiable use of force
kidnapping
larceny
mala in se
mala prohibita
malicious mischief
manslaughter
mayhem
Megan’s Law
mens rea
misdemeanors
mistake of fact
mistake of law
M’Naghten Rule
Model Penal Code
money laundering
murder
necessity
negative defenses
obscenity
obstruction of justice
organized crime
parole
parole board
penitentiary
perjury
price fixing
principals
probation
procedural criminal law
proportionality
prostitution
proximate cause
rape
rape shield laws
rape trauma syndrome
recidivism
rehabilitation
resisting arrest
restitution
retribution
RICO
rights of prisoners
riot
robbery
second-degree murder
selective prosecution
self-defense
solicitation
specific intent
stalking
stare decisis
statute of limitations
strict-liability offenses
subornation of perjury
substantial capacity test
substantive criminal law
target crime
tax fraud
transactional immunity
treason
Uniform Code of Military Justice
unlawful assembly
use immunity
uttering a forged instrument
vagrancy
vandalism
vehicular homicide
vice of vagueness
violations of civil rights
white-collar crimes
wrongful act or omission
ENDNOTES
1. Two interesting exceptions are People v. Woody, 394 P.2d 813 (Cal. 1964), and Ravin v. State,
537 P.2d 494 (Alaska 1975).
2. Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).
3. Bowers v. Hardwick, 478 U.S. 186, 107 S. Ct. 29, 92 L. Ed. 2d. 779 (1986).
4. Section 9 applies to the national Congress and Section 10 applies to the state legislatures.
5. 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).
6. 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).
7. 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989).
8. 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997).
9. 542 U.S. 656, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004).
10. 542 U.S. at 660, 124 S. Ct. at 2788, 159 L. Ed. 2d at 698.
11. 535 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).
12. 535 U.S. at 363, 123 S. Ct. at 1549, 155 L. Ed. 2d at 554.
13. Musser v. Utah, 333 U.S. 95, 97, 68 S. Ct. 397, 398, 92 L. Ed. 562, 565 (1948).
14. 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).
15. 539 U.S. at 578, 123 S. Ct. at 2484, 156 L. Ed. 2d at 526.
16. Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976).
17. 18 U.S.C. §2(a).
18. See, e.g., Cal. Penal Code §33.
19. United States v. Barlow, 470 F.2d 1245 (D.C. Cir. 1972).
20. 18 U.S.C. §3.
21. Fla. Stat. §777.03.
22. See United States v. Manley, 632 F.2d 978 (2d Cir. 1980), cert. denied, 449 U.S. 1112, 101 S.
Ct. 922, 66 L. Ed. 2d 841 (1981).
23. Fla. Stat. §777.04(1).
24. United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974).
25. See, e.g., Tex. Penal Code Ann. §15.04(a).
26. 720 ILCS 5/8-1.
27. United States v. Korab, 893 F.2d 2122 (9th Cir. 1989).
28. M.P.C. §5.02(3).
29. Webster v. State, 646 So. 2d 752 (Fla. App. 1994).
30. 18 U.S.C. §371.
31. Tex. Penal Code Ann. §15.02(a).
32. Iannelli v. United States, 420 U.S. 770, 786, 95 S. Ct. 1284, 1294, 43 L. Ed. 2d 616, 628
(1975).
33. Mo. Ann. Stat. §564.016(5)(1).
34. 532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d. 697 (2001).
35. 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997).
36. 3 Or. Rev. Stat. §127.800 (1994).
37. 546 U.S. 243, 126 S. Ct. 904, 163 L. Ed. 2d. 748.
38. 18 U.S.C. §2119.
39. Holloway v. United States, 526 U.S. 1, 119 S. Ct. 966, 143 L. Ed. 2d. 1.
40. Tenn. Code Ann. §39-13-404.
41. Flores-Figueroa v. United States, 556 U.S. 646, 129 S. Ct. 1886, 173 L. Ed. 2d. 853
42. 18 U.S.C. §1962(a).
43. 18 U.S.C. §1962(b).
44. 18 U.S.C. §1962(c).
45. 18 U.S.C. §1962(d).
46. 354 U.S. 476, 489, 77 S. Ct. 1304, 1311, 1 L. Ed. 2d 1498, 1509 (1957).
47. 413 U.S. 15, 24, 93 S. Ct. 2607, 2613, 37 L. Ed. 2d 419, 423 (1973).
48. 458 U.S. 747, 102 S. Ct. 3348 73 L. Ed. 2d 1113 (1982).
49. Pope v. Illinois, 481 U.S. 497, 107 S. Ct. 1918, 95 L. Ed. 2d 439 (1987).
50. State v. Henry, 732 P.2d 9, 18 (Or. 1987).
51. New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982).
52. 21 U.S.C. §801 et seq.
53. Edwards v. South Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963).
54. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110
(1972).
55. 18 U.S.C. §921 et seq. See also: National Firearms Act of 1934.
56. See United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939); Lewis v.
United States, 445 U.S. 55, 100 S. Ct. 915, 63 L. Ed. 2d 198 (1980).
57. District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
58. McDonald v. City of Chicago, 561 U.S. 3025, 130 S. Ct. 3020, 177 L. Ed. 2d. 894.
59. 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974).
60. Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973).
61. 18 U.S.C. §5031.
62. M’Naghten’s Case, 8 Eng. Rep. 718 (1843).
63. 18 U.S.C. §17(a).
64. 18 U.S.C. §17(b).
65. United States v. Cameron, 907 F.2d 1051, 1063 (11th Cir. 1990).
66. Cleveland v. Municipality of Anchorage, 631 P.2d 1073, 1078 (Alaska 1981).
67. For a typical example of a state self-defense law, see the Tennessee statute at:
http://law.justia.com/codes/tennessee/2010/title-39/chapter-11/part-6/39-11-611.
68. See, for example, Florida’s self-defense statute: http://www.leg.state.fl.us/statutes/index.cfm?
App_mode=Display_ Statute&URL=0700-0799/0776/Sections/0776.013.html.
69. For a breakdown of statutes by state, see: http://criminal .findlaw.com/criminal-law-
basics/stand-your-ground-laws.html.
70. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=
Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.012.html.
71. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=
Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.013.html.
72. State v. Janes, 822 P.2d 1238, 1243 (Wash. App. 1992).
73. http://law.justia.com/codes/tennessee/2010/title-39/chapter-11/ part-6/39-11-611.
74. https://www.revisor.mn.gov/statutes/?id=609.065.
75. Iowa Code Ann. §704.4.
76. Murphy v. Waterfront Commn., 378 U.S. 52, 77-78, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964).
77. Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).
78. 18 U.S.C. §6003.
79. United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975).
80. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).
81. Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982).
82. Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959).
83. Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970).
84. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).
85. 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932).
86. 18 U.S.C. §3282 et seq.
87. Sorrells v. United States, 287 U.S. 435, 451, 53 S. Ct. 210, 216, 77 L. Ed. 413, 422 (1932).
88. Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962).
89. Leviticus 24:17-20.
90. Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958).
91. 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
92. 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
93. In 2014, the eighteen states without the death penalty were Alaska, Connecticut, Hawaii,
Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New
Mexico, New York, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin.
94. The Anti-Drug Abuse Act of 1988, 21 U.S.C. §848(e), allows the death penalty for so-called
“drug kingpins” who control “continuing criminal enterprises” whose members intentionally
kill or procure others to kill in furtherance of the enterprise.
95. Death Penalty Information Center, http://www.deathpenaltyinfo.org.88.
96. See McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).
97. Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977); Kennedy v.
Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008).
98. Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
99. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).
100. Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986).
101. Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008).
102. U.S. Dept. of Justice, Bureau of Justice Statistics, Prison Inmates at Midyear 2007,
Washington, D.C., U.S. Dept. of Justice, June 2008. See, in particular, Tables 1 and 8.
103. Brown v. Plata, 563 U.S. ____, 131 S. Ct. 2895, 179 L. Ed. 2d. 1185.
104. Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992).
105. Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501 (1974).
106. O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987).
107. Ex parte Hull, 312 U.S. 546, 61 S. Ct. 640, 85 L. Ed. 1034 (1941).
108. Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977).
109. Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 109 S. Ct. 1904, 104 L. Ed. 2d 506
(1989).
110. The Sentencing Reform Act of 1984 abolished parole eligibility for federal offenders other
than military offenders who commit offenses on or after November 1, 1987. It also provided
for the abolition of the U.S. Parole Commission on November 1, 1992. However, Congress
subsequently extended the life of the Commission through November of 2018.
111. 21 U.S.C. §881(a)(4).
112. 21 U.S.C. §881(a)(7).
113. Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993).
LEARNING OBJECTIVES
CHAPTER OUTLINE
Introduction
Negligence
Intentional Torts
Strict Liability
Vicarious Liability
Special Tort Situations
Immunities from Liability
Recent Developments in Tort Law
Tort Reform
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
The word tort comes from the Latin “tortus,” which means twisted or
wrong. Thus, a tort is a wrongful act committed by a person or an entity
known as the tortfeasor resulting in injury or loss to the victim. But a tort
is not always a wrongful act, because in certain instances the law imposes
liability for activities that are not necessarily wrongful yet result in injury
or damage.
The law of torts emanates from the English common law. In the United
States, tort law has developed over the years largely by judicial decisions
but also through legislative action restricting or expanding tort liability.
The American Law Institute (ALI), an organization of scholarly lawyers
and judges, has published the Restatement of Torts, First, Second, and
Third Editions. The Restatement is not law; however, it purports to restate
principles of contemporary American law and is often relied on by courts
in interpreting the law. In this chapter, we refer to certain sections of the
Restatement. We refer to a person who allegedly suffers as a result of
someone’s negligence or intentional act as the “plaintiff” and to the
alleged tortfeasor as the “defendant.”
Tort law is designed to protect persons from injury to their person,
property, and reputation. One who suffers a tort may bring a civil action
for damages to obtain redress of the injury or loss caused by the
tortfeasor’s actions. There are three basic types of torts:
1. Negligent acts or omissions. Negligence is the failure to
exercise reasonable care. A tortfeasor’s negligent driving that
causes injuries to a person or damage to someone’s vehicle, or the
performance of a physician or lawyer that falls below the required
standard of care, are common examples of the tort of negligence.
In some instances failure to perform an act—that is, an omission—
may be a tort.
2. Intentional acts. These are torts committed by someone who
intends to do something that the law has declared wrongful, such
as assault, battery, defamation, false imprisonment, trespass, or
fraud. Striking someone with a stick is a battery and is a classic
example of an intentional tort, unless one happens to be
participating in a karate tournament.
3. Acts for which the law imposes strict liability. This means that
one is held liable for an injury regardless of one’s intent or
negligence. Historically, one who keeps wild animals or who
stores or uses explosives has been held strictly liable even where
damage occurs through no fault of the tortfeasor. Today, strict
liability is imposed on those who engage in abnormally dangerous
activities and can be imposed on designers and manufacturers of
products.
Under certain circumstances, a person or an entity can be held
responsible for the tortious acts of another. This is called vicarious
liability. The most common example of vicarious liability is where an
employer is held liable for acts of an employee committed within the scope
of employment.
Tort law is a very dynamic area, and its development has closely
paralleled the social and economic changes in society. In recent years,
legislative bodies and courts began to recognize a tort action to protect a
person’s privacy. Thus, the tort of invasion of privacy came into being.
By the 1970s, as society began to seriously address environmental
concerns, courts recognized toxic torts. Courts are now being asked to
impose tort liability on tobacco companies whose products allegedly have
caused serious injuries to smokers and on gun manufacturers whose
products have been used to kill or injure people.
NEGLIGENCE
Most contemporary law actions involving torts are based on the tort of
negligence. Negligence is the failure of a person or entity to use
reasonable care, which failure results in injury to persons or damage to
property. The concept of reasonable care is often expressed in terms of
what an ordinary, prudent person would do in similar circumstances. Of
course, people frequently commit negligent acts or negligently omit to
perform certain acts. But before a defendant can be held liable for
commission of a negligent act or omission, the plaintiff must prove by the
preponderance (greater weight) of the evidence the following four basic
elements:
■ First, there must be a duty to act in such a manner as not to expose the
plaintiff to an unreasonable risk.
■ Second, there must be a breach of duty on the part of the defendant.
■ Third, there must be a causal connection (called proximate cause)
between the defendant’s failure to abide by the duty to act in a
reasonable and prudent manner and the plaintiff’s loss and the result
must have been reasonably foreseeable by the defendant.
■ Fourth, the defendant’s negligent act or omission must result in injury or
loss to the plaintiff.
Emergency Situations
In emergency situations, courts view the defendant’s conformity to the
required standard of care based on the circumstances that exist at the time
of an event. Of course, a defendant must observe ordinary care in
anticipating certain emergencies; for example, a theater owner must
provide sufficient exits for use in the event of an emergency.
Children
Historically, children have been held liable for their own torts; however,
some courts hold that a child under age seven is incapable of committing a
tort.3 The law recognizes that children are generally incapable of meeting
the standard of care for adults. Thus, it tends to judge what is reasonable
conduct for a child based on the child’s age, intelligence, and experience
and to look subjectively at the level of care observed by a minor plaintiff
or defendant.4 Nevertheless, when a child engages in an adult activity such
as driving an automobile, courts generally hold the child to an adult
standard.
Breach of Duty
After a plaintiff establishes that the defendant owes a duty to the plaintiff,
in order to present a prima facie case, the plaintiff must then establish a
breach of that duty by the defendant. The plaintiff can do this by showing
the defendant’s act, or failure to act, violated the standard of care that a
reasonable person should observe under the circumstances.
Violation of duties imposed by statutory laws, ordinances, and
governmental regulations may indicate negligence. This is a very technical
area. If the particular statute or regulation is designed to specifically
protect the plaintiff against the harm caused by the defendant’s violation,
such violation may constitute negligence per se, that is, the defendant’s
conduct may be treated as negligence without regard to any surrounding
circumstances. In other instances, though, such violation may simply be
evidence of negligence to be considered along with all other
circumstances.5
In rare instances, a plaintiff may be aided in proving breach of the
defendant’s duty by a legal doctrine called res ipsa loquitur (“the thing
speaks for itself”). In such cases, negligence is inferred from the simple
fact that the injury occurred. For example, an Ohio court upheld use of the
doctrine in a case where personal injuries resulted from explosion of a
bottle of beer.6 The bottle of beer would not have exploded had it not been
defective. Another example would be an operation in which a surgeon
erroneously removes a patient’s gallbladder instead of her appendix. The
thing speaks for itself. That can be especially useful if the only witnesses
are those whose conduct led to an injury, as when a patient is unconscious
during surgery. If the doctrine is properly invoked, a court may instruct the
jury that it can infer the defendant’s negligence. This doctrine is typically
applied to situations where a defendant has exclusive control over a
situation in which something goes wrong.
Assumption of Risk
Historically, courts have held that a plaintiff who voluntarily consents to a
known risk assumes the consequences of such risk. Thus, courts have
allowed a defendant to assert assumption of risk as a defense against
actions brought on the theory that the defendant is negligent.
Consequently, one who expressly agrees to assume a known risk is
generally barred from recovery of damages for the tort of negligence.
Often, consent to a defendant’s conduct is manifested by a document the
plaintiff has signed agreeing to relieve the defendant from the
consequences of negligence. The permission slip signed by parents
allowing their child to go on a school field trip is one example. A more
formal consent may take the form of an exculpatory agreement whereby a
person expressly agrees not to hold another party liable for any injury or
damage from a given activity. Courts view such documents cautiously, and
before a party can be relieved of negligent acts the exculpatory language of
the document must be very clear and explicit. Even if valid, such a
document would not ordinarily relieve a person from liability for
commission of an intentional tort or for conduct amounting to gross
negligence.
Another type of assumption of risk is called an implied consent. A
person’s conduct may imply an assumption of risk. For example, a person
who attends an athletic event and sits in a place where spectators are
prohibited and is injured may be said to have assumed the risk of injury.8
A player who willingly participates in a football game impliedly consents
to being tackled and possibly being injured under the rules of the game. In
one well-known, case a woman who willingly raised her arm for a nurse to
administer an immunization shot was held to have impliedly consented to
receiving the immunization.
Contributory and Comparative Negligence
During the early 1800s, the courts developed a doctrine that barred a
plaintiff who brought suit from recovering damages if the defendant could
show the plaintiff’s own actions contributed to his or her injuries or losses.
Courts began to universally apply this defense, called contributory
negligence. By the mid-twentieth century, courts increasingly criticized the
doctrine, particularly as related to manufacturers of products and owners
and drivers of vehicles. In recent years, through legislation or judicial
decision,9 many states have adopted the doctrine of comparative
negligence extant in civil law countries.
Comparative negligence seeks to assess damages based on the amount
of negligence of the parties. Some jurisdictions apply the doctrine in its
purest form and allow a plaintiff to recover damages against a negligent
defendant irrespective of the amount of the plaintiff’s own negligence.
Thus, a plaintiff found to be 80 percent negligent could recover damages
for the 20 percent of negligence attributable to the defendant. Other
jurisdictions apply a modified form of comparative negligence under
which a plaintiff may not recover any damages if found to be 50 percent or
more negligent. Most commentators believe the doctrine of comparative
negligence is a more equitable approach to assessing liability.
Nevertheless, the shift from contributory negligence has resulted in
complexities, particularly where multiple parties are involved or where the
law traditionally allowed a defendant to assert that a plaintiff assumed the
risk of injury or loss. These changes pose problems to the insurance
industry, which underwrites liability protection for defendants in the
majority of major tort actions based on negligence.
INTENTIONAL TORTS
Defamation
Defamation consists of publishing communications that cause another
person to be held in ridicule, or that injure another’s reputation or business
interests. Oral defamation is called slander; written or printed defamation
is called libel. Courts differ on whether defamation by radio or television
is slander or libel, but the difference is primarily a matter of form as
essentially the same principles of law apply to each.
In 1999, quoting from Restatement (Second) of Torts §559, the Indiana
Supreme Court stated that a defamatory communication is one that “tends
so to harm the reputation of another as to lower him in the estimation of
the community or to deter third persons from dealing with him.” The court
explained that whether a communication is defamatory depends, among
other things, upon the temper of the times and contemporary public
opinion, with the result that words, harmless in one age, in one
community, may be highly damaging to a person’s reputation at another
time or in another place.12
To recover damages for defamation, the plaintiff usually must prove a
financial loss; however, some forms of defamation give rise to an action
against the tortfeasor irrespective of loss. These include such accusations
as falsely imputing perjury or treason, or that a person is guilty of a crime
or has a loathsome disease, or falsely alleging that a person is having
deviate sexual relations with a minor.
In 1964, the U.S. Supreme Court held that the First Amendment to the
U.S. Constitution precludes public officials from recovering damages for
defamatory falsehoods related to their official conduct unless they can
prove “that the statement was made with…knowledge that it was false or
with reckless disregard whether it was false or not.” 13 The Court later
expanded the principle to apply to all public figures that sue for libel.14
The theory underlying this holding is that public figures (usually public
officials, politicians, or celebrities) have sufficient access to the mass
media to defend themselves against false accusations and thus do not
normally require the assistance of libel suits.
The “public figure” doctrine has made it difficult for celebrities to
prevail in libel suits against the tabloid press. A notable exception occurred
in 1981 when Carol Burnett prevailed in a libel suit against The National
Enquirer. The tabloid had run a brief item asserting that a “boisterous”
Carol Burnett had a loud argument with Henry Kissinger in a Washington
restaurant. According to the article, “she traipsed around the place offering
everyone a bite of her dessert.” The article implied that Burnett was drunk.
Burnett sued for defamation. The jury awarded her $300,000 in
compensatory damages and $1.3 million in punitive damages. The trial
judge reduced the award to $50,000 compensatory and $750,000 punitive
damages. An appeals court remanded the case, holding that the punitive
damages were excessive.15 In 1986, Burnett agreed to settle the case,
reportedly for $200,000.
CASE IN POINT
Consent
The most common defense to an intentional tort to a person is that the
plaintiff consented to the defendant’s actions. Consent may be
communicated expressly by words or impliedly by actions, and in some
instances by a person’s silence. A person who is intoxicated or
unconscious is not competent to give consent, and fraud or coercion
vitiates a person’s consent and can render the offending party liable for
committing a battery. Moreover, where statutes are enacted to protect
certain classes of persons, such as minors, consent is not valid. Statutes
defining statutory rape and making it a crime to have sexual relations with
a minor irrespective of the minor’s consent illustrate this principle.
Self-Defense
When a person reasonably believes that it is necessary to use force to
protect against a threat to one’s person it is proper to defend by use of
reasonable force. Self-defense can be a defense against such torts as
assault and battery. Usually, one may not become the aggressor during
self-defense. Most courts extend self-defense to allow defense of a third
person; however, the Supreme Court of Ohio has pointed out that one who
uses force to intervene on behalf of another person may not invoke the
privilege of self-defense if the person defended was the aggressor in the
conflict.26
Authority of Law
One who acts under authority of law also may have a defense to the tort of
false imprisonment. Generally, the officer who makes a legal arrest or the
schoolteacher who keeps a pupil after school for a reasonable period of
time could assert such a defense.
Use of Force
A possessor of property is justified in defending that property against
trespass and may use such reasonable force as is necessary to prevent
trespass or to remove a trespasser. Ordinarily, a person must first request
an intruder to desist. Deadly force cannot be used simply to protect
property. There must be a threat of serious harm to the owner or possessor
and even then in many jurisdictions courts require that a person threatened
who can safely retreat must do so. Nevertheless, our common law heritage
regarded that “a man’s home is his castle,” and rarely do courts require a
person to retreat within one’s own home. As the Minnesota Supreme Court
observed in 1999, “The special status of the home has persisted over time,
obviating retreat requirements for people engaging in self-defense within
their homes.” 27
Courts have approved the use of guard dogs and electronically charged
fences to protect property. Historically, courts also permitted the use of
spring guns and other mechanical devices to protect property, but modern
courts have generally disallowed such means of defense. Most courts now
hold that one who sets up a spring gun or other mechanical device
designed to kill or injure a trespasser will be held liable for the death or
injury to the trespasser. Indeed, today, the use of a spring gun could under
certain circumstances result in the user being charged with a crime.
Necessity
Necessity is a defense that can be asserted by one who commits a tort of
trespass or conversion in order to prevent greater harm to a person or to the
public generally. An example could be where it is necessary to destroy
property to prevent the spread of fire. The defense applies only in the
direst calamities. Even then, it does not shield one from a duty to
compensate for harm caused where the defense of necessity is invoked to
protect a person’s private interest as opposed to protection of the public
interest.
STRICT LIABILITY
Products Liability
Products liability refers to the legal responsibility of those who supply
goods whose defects cause injuries or losses to others. American courts
originally accepted the English doctrine of caveat emptor (“let the buyer
beware”), but during the twentieth century they began discussing the
doctrine of strict liability mentioned above in reference to manufacturers
of products. At first, a manufacturer was liable for negligence only to the
immediate purchaser of a product, who was usually a dealer from whom
the ultimate consumer purchased. Consequently, the ultimate purchaser or
user of a product could not recover damages against the manufacturer.
But in 1916, in its seminal decision MacPherson v. Buick Motor Car
Co., the New York Court of Appeals held that a manufacturer of an
automobile was liable to a person injured as a result of the vehicle’s
defective wheel.30 The court made legal history by holding the
manufacturer liable to the ultimate purchaser, and its decision was
eventually adopted by all American jurisdictions. Later courts extended the
doctrine to hold the seller of a product liable for damages to all persons
who used the product whom the manufacturer or seller could reasonably
have foreseen as users or consumers of the product. The manufacturer,
seller, or supplier of the defective product became responsible to not only
the purchaser but also the users, and even bystanders who suffer injuries
because of a defective product.
Today, a plaintiff whose person or property suffers injury causally
related to an unsafe product may opt to bring suit for negligence or breach
of warranty or, in most states, may have a cause of action for “products
liability” based on the doctrine of strict tort liability. The rationale for
imposing such liability is that it will increase the level of safety. Further,
manufacturers and distributors can cover most risks of this type by liability
insurance.
To recover for damages resulting from a defective product, the plaintiff
must establish that the injuries or losses that have accrued are the
proximate result of the defective product. In general, the defendant can
prevail by establishing that the product was used in a way not reasonably
foreseeable or that it was used once the plaintiff had knowledge of the
defective condition of the product.
Many product liability cases involve claims of defective design of
products, and until recently the comments to §402A of the Restatement
(Second) of Torts stated that a warning could insulate a manufacturer from
liability in certain instances. As previously noted, tort law is dynamic, and
the Restatement (Third) of Torts, adopted in 1997,31 notes that warnings
are not “a substitute for the provision of a reasonably safe design” of a
product. Following this view, a federal appeals court in May 1998 upheld a
verdict for $16.7 million in damages. The court ruled that an adequate
warning by itself does not “immunize a manufacturer from any liability
caused by its defectively designed product.” 32
In two cases in 2011, the Supreme Court placed some limits on the
reach of a product liability lawsuit. The first case stemmed from a bus
accident in Paris that claimed the lives of two boys from North Carolina
who were in France for a soccer tournament. The accident was blamed on
a defective tire produced by a foreign subsidiary of Goodyear. In
Goodyear Tire v. Brown, the Court noted that North Carolina courts lacked
the jurisdiction to hear a case involving these subsidiary companies
because the accident itself had no connection to the state—even though the
Goodyear “parent company” did business in the state.33
In a second 2011 case, a man lost four fingers while using a machine
designed to cut metal. He sued the manufacturer, which was based in
England. Although the manufacturer had used a U.S. based distributor, the
Supreme Court ruled that New Jersey state courts lacked jurisdiction over
that foreign company. In the plurality opinion, Justice Kennedy did not
entirely eliminate the possibility of similarly situated individuals suing
foreign companies, but noted that “a forum-by-forum, or sovereign-by-
sovereign, analysis” was required to assess the extent of a company’s
dealings in a particular jurisdiction34—with a company’s “purposeful
availment” or “targeting” of a jurisdiction providing a litmus test of
susceptibility to a lawsuit.
VICARIOUS LIABILITY
Vicarious liability means that one person is held liable for the acts of
another based on a relationship between the parties. Courts justify the
imposition of vicarious liability based on one party’s exercising control
over the other. Not surprisingly, vicarious liability most frequently applies
in a relationship known at common law as a master-servant. Today, this
type of relationship is more commonly characterized as an employer-
employee relationship, and the employer may be held liable for torts
committed by employees acting within the scope of their duties. Being
vicariously liable for employees gives an employer an incentive to
carefully select and train employees. Employees remain liable for their
own torts; however, plaintiffs usually seek recourse against the employer,
who is likely to carry liability insurance to cover such claims.
Typically, an employer-employee relationship is created where an
employer furnishes necessary tools and directly supervises a person
working on an hourly or a salary basis. One must distinguish the
employer-employee relationship from one in which the contract is with an
independent contractor. An independent contractor is a party hired to
accomplish a certain result for a stipulated payment. For example, an
independent contractor relationship generally arises when a party employs
a roofing company to repair a roof and the roofer brings the equipment and
workers and directs the performance of their work. Ordinarily one who
employs an independent contractor is not held liable for the torts of such
contractor. There are exceptions. For example, a party who contracts to
have dangerous work performed can be held vicariously liable for an
independent contractor’s torts that are inherent and foreseeable in the work
to be accomplished. A good example of this would be a contract to
perform blasting with explosives. There are other technical exceptions,
which include duties imposed by contract or by laws and regulations.
Tort law is a complex and highly dynamic area. There are a number of
special situations that do not fit neatly into the categories we have been
discussing. These include professional malpractice, the liability of owners
and possessors of real estate, negligent infliction of emotional distress,
survival actions, wrongful death actions, preconception torts, torts
involving alcoholic beverages, toxic torts, and torts involving the
deprivation of constitutional rights.
Professional Malpractice
Professional malpractice consists of the failure of a professional, for
example, a physician, hospital, dentist, lawyer, or engineer, to meet the
reasonable standard of care of professionals with similar training and
experience. Not every error by a professional equates with malpractice. To
have a cause of action, the plaintiff must suffer harm as a proximate result
of the professional’s alleged negligence. Unless the defendant’s failure to
meet the standard of care of professionals in similar disciplines can be
established through common knowledge, the plaintiff must prove the
defendant’s negligence through the testimony of expert witnesses.
Handling a plaintiff’s suit for malpractice often involves considerable
pretrial procedures involving lengthy discovery processes to obtain
documents and depositions of experts. Trials are lengthy and can involve
testimony by numerous experts.
Medical malpractice and legal malpractice are the most frequent
instances of professional malpractice. Medical malpractice may take the
form of a physician’s or other health care provider’s misdiagnosing a
patient’s problem, failing to properly treat the patient, or prescribing or
administering the wrong medication. A physician can also be guilty of
medical malpractice by failing to adequately inform the patient about the
risks involved in a treatment or surgical procedure. This makes it
important, especially in non-emergency surgical procedures, for a
physician to obtain the patient’s “informed consent” prior to procedures.
The publicity that attends a suit for medical malpractice can seriously
reflect on the defendant’s reputation. Therefore, to avoid the prospect of a
“meritless suit,” some states impose pre-suit screening requirements.
A lawyer who fails to use such skill, prudence, and diligence ordinarily
exercised by lawyers under similar circumstances may be guilty of legal
malpractice. Areas of potential malpractice span a variety of situations,
including legal advice as well as performance in civil and criminal cases.
Failure to file a claim on behalf of a claimant within the period allowed by
a statute of limitations is one of the more frequent grounds cited in legal
malpractice suits.
Alcoholic Beverages
Under the English common law, a vendor of intoxicating beverages was
not liable to persons injured by the intoxicated purchaser. The trend in
American courts in recent years, though, has been to allow a tort action
against the seller of intoxicated beverages, particularly if the seller violated
a statute imposing liability on vendors who sell intoxicating beverages to a
minor.
These statutes, often called dram shop acts (a dram shop is a place of
business that dispenses alcoholic beverages), eliminate the proximate
cause requirement and allow a person injured by the intoxicated individual
to recover damages against the vendor. Some courts have held that an
injured party has a claim against the vendor under a dram shop act even
though a minor with whom the purchasing minor shared the alcoholic
beverage caused the injuries. In 1998, the Washington Supreme Court
ruled that a vendor who illegally sold alcoholic beverages to the minor,
who in turn furnished the alcoholic beverage to another minor, could be
held liable for foreseeable alcohol-related injuries that arose from the
initial sale.48
The so-called dram shop acts generally are not applicable to a social
host who furnishes alcoholic beverages to a guest. Legislatures and courts
have begun to address the issue of whether a social host can be held
responsible for furnishing alcoholic beverages to a guest who becomes
intoxicated and causes injury or death to another person. Observing that
courts, and not only legislatures, have a duty in this area, in 1984 the New
Jersey Supreme Court addressed the issue. The court held that a social host
who provides intoxicating liquor to a guest knowing that guest to be
intoxicated and would soon drive a vehicle is liable for injuries to a third
party caused by guest’s negligent operation of a motor vehicle if the
driver’s negligence is caused by intoxication.49
In 1990, the Ohio Supreme Court ruled that parents may be held liable if
they know that their children are planning a party where underage drinking
is likely even if the parents are not at home at the time of the party.50 Some
states require a statutory basis for assessing liability of a social host in
respect to furnishing alcohol to minors or permitting minors to consume
alcoholic beverages; in other states, courts have imposed liability based on
common law principles and have found that a social host has a duty to
avoid serving alcoholic beverages to minors.
Toxic Torts
One of the newest tort actions is based on claims of human or property
exposure to toxins through absorption, contact, ingestion, inhalation,
implantation, or injection. Plaintiffs have charged that asbestos, various
chemical compounds, silicone breast implants, and disposal of hazardous
wastes, to name a few, have caused injuries to health or the environment.
Many of the substances involved in toxic tort actions are regulated by such
federal agencies as the Food and Drug Administration (FDA), the
Environmental Protection Agency (EPA), and the Occupational Safety and
Health Administration (OSHA). (Administrative regulation is discussed in
Chapter 12.)
Among the legal problems that arise in this area is whether exposure to
a toxic substance, for example, asbestos, where the symptoms remained
latent until after the right to bring suit, is barred by a statute of
limitations. Another concerns the legal theory available for recovery and
what defenses may be available to a defendant. In 1973, the U.S. Court of
Appeals for the Fifth Circuit applied the principle of strict product liability
and held a manufacturer liable for failure to adequately warn the plaintiff
of the hazards of products that contained asbestos.51
In 1991, the Supreme Court of California reviewed a case where a
shipyard worker brought a toxic tort action based on strict liability.52 The
plaintiff alleged that, while working, he contracted lung ailments through
exposure to asbestos and asbestos products. The issue before the state
supreme court was whether in a strict product liability action based on an
alleged failure to warn of a risk of harm a defendant could present
evidence of the state-of-the-art, that is, evidence that the particular risk
was neither known nor knowable by the application of scientific
knowledge available. The court recounted that it had previously concluded
that a manufacturer of prescription drugs is exempt from strict liability for
defects in design and is not strictly liable for injuries caused by
scientifically unknowable dangerous propensities in prescription drugs.
This principle, the court opined, should allow a defendant to present state-
of-the-art evidence at trial.
In toxic tort litigation, courts must resolve disputes involving complex
problems of science and technology. These actions present a problem to
the legal system when they involve an issue of when a statute of
limitations begins to run, where the plaintiff alleges latent injuries. Often,
thousands of plaintiffs are involved in tort claims involving toxic torts
resulting from massive accidents, and not infrequently, multiple
defendants are charged with the responsibility for such massive
occurrences. Generally, claims in mass torts are handled through class
action lawsuits (see Chapter 9).
Some of the most complex and difficult product liability cases are those
that involve pharmaceutical products used by millions of Americans. For
example, in 2005 there were literally thousands of suits pending against
the pharmaceutical giant Merck over the arthritis drug Vioxx, which was
pulled from the market in 2004 over concerns that it led to increased risks
of heart attack and stroke. Several of these suits had resulted in huge
judgments against Merck. After appellate courts in several states reversed
or reduced these judgments, Merck agreed to establish a $4.85 billion fund
to settle these cases. In 2013, Merck also agreed to a $23 million
settlement in response to a series of additional lawsuits regarding Vioxx.
Thus, it is important to recognize that resolutions in one set of lawsuits do
not necessarily preclude additional litigation on similar matters.
Employer-Employee Relationships
Under the common law, employers rarely were found liable for injuries to
their employees, because employers were allowed to assert defenses that
usually insulated them from liability. For example, an employer was
exonerated if the court found that the employee assumed the risk of injury
incident to a particular job (assumption of risk), if another employee
caused the injury (fellow servant rule), or if the worker’s carelessness
contributed to the injury (contributory negligence).
These common law doctrines were unsuitable to an industrial age, and
in the early 1900s, Congress and many state legislatures enacted laws,
which today are called worker’s compensation acts. These acts provide
that if an injury occurs “in the course of employment” and “arises out of
the employment” an injured worker is compensated according to a
statutory schedule that covers medical expenses, loss of wages, and
temporary and permanent disabilities. Dependents can recover benefits if
the employee’s death arises out of the worker’s employment. These acts
are beneficial to both employers and employees. Employers gain the
advantage of averting litigation and being able to budget to pay insurance
premiums for necessary coverage. Employees obtain compensation
promptly without the necessity of proving fault, yet the benefits to the
employee do not include compensation for pain and suffering. The Federal
Employers Liability Act provides somewhat similar benefits for railroad
workers; another federal statute, the Jones Act, covers maritime
employees.
TOXIC TORTS
Recent decades have seen a surge in “toxic tort” litigation involving claims
arising from injuries or illnesses caused by exposure to toxic chemicals,
radiation, or other hazardous materials such as asbestos. Perhaps the best-
known toxic tort case was that stemming from the 1984 accident at the
Union Carbide plant in Bhopal, India. More than 10,000 people died and
more than 300,000 people were injured as the result of exposure to a cloud
of methyl isocyanate and other toxic chemicals that were accidentally
released from the plant. Union Carbide paid $470 million to settle the case
out of court.
Other well-known examples of toxic tort litigation include the Love
Canal case in Niagara Falls, New York, the Times-Beach Case in
Missouri, and the W.R. Grace case in Massachusetts, which was the
subject of the book and film A Civil Action.
Toxic tort litigation was also the subject of a popular feature film. Based
on a true story, Erin Brockovich (2000) features Julia Roberts as a legal
secretary who investigated water contamination in the small desert
community of Hinckley, California. The resulting lawsuit brought by 652
Hinckley residents against Pacific Gas & Electric Company resulted in a
$333 million out-of-court settlement in 1996.
Toxic tort lawsuits usually involve claims of negligence or strict
liability. This type of litigation also typically incorporates analysis of
complex factual issues. Thus, plaintiffs and defendants tend to rely heavily
on the testimony of expert witnesses—and many claims result in
settlements that avoid the expense of a lengthy trial (and any subsequent
appeals). A recent example of this kind of settlement comes from
Charleston, West Virginia, where a January 2014 chemical spill in the Elk
River contaminated drinking water for 300,000 residents. In July 2014, the
company responsible for the spill agreed to establish a $2.9 million dollar
trust fund to benefit residents of the affected area.
CASE IN POINT
When the supertanker Exxon Valdez ran aground on a reef along the
Alaska coast in June 1989, the hull fractured and almost 11 million gallons
of crude oil were spilled into Prince William Sound. Nearly 1,300 miles of
Alaska coastline were fouled by the oil, and thousands of birds and other
marine creatures were killed. More than 30,000 residents were
economically affected by the disaster; many of them lost their livelihoods
altogether. It turned out that the ship’s captain had been drinking and was
not on the bridge at the time of the accident. The U.S. government and the
state of Alaska brought suit against Exxon, alleging negligence on the part
of the company. The suit was settled when Exxon agreed to pay more than
$900 million for the cost of the cleanup and the restoration of the natural
environment. Exxon agreed to pay another $300 million to settle claims
brought by various private parties. A number of private civil suits that
were not settled were consolidated for trial in the federal district court in
Alaska. The jury awarded $287 million in compensatory damages and,
because it found that Exxon was reckless, imposed an additional $5 billion
in punitive damages. The U.S. Court of Appeals reduced the punitive
damages award to $2.5 billion, but Exxon asked the U.S. Supreme Court to
review the case. In a 5-3 decision rendered in June 2008, the Supreme
Court further reduced the punitive damages to $507.5 million. Writing for
the majority, Justice David Souter concluded that the $2.5 billion award
was excessive, and therefore a violation of due process, because in
maritime cases punitive damages tend to be equivalent to actual damages
where the harm was not deliberate or malicious. Limiting punitive
damages is necessary, according to Souter, “given the need to protect
against the possibility…of awards that are unpredictable and unnecessary,
either for deterrence or for measured retribution.…” In dissent, Justice
Ruth B. Ginsburg questioned “whether there is an urgent need in maritime
law to break away from the ‘traditional common law approach’ under
which punitive damages are determined by a properly instructed jury,
followed by trial-court, and then appellate-court review, to ensure that [the
award] is reasonable.”
Under the English common law, no action could be brought against the
Crown because “the King could do no wrong.” As early as the thirteenth
century, the common law held that the King could not be sued in his own
courts. This doctrine of sovereign immunity was received by the
American courts and became a part of the American common law. The
doctrine holds that the United States as a sovereign nation and the states as
sovereign states cannot be sued without their consent. In a democratic
society based on the principle that government is subject to the rule of law,
the principle of sovereign immunity is difficult to defend. Of course,
Congress and the state legislatures can, and often do, waive sovereign
immunity in whole or in part.
CASE IN POINT
Charitable Immunity
Historically, nonprofit organizations conducting charitable activities were
immune from liability under the doctrine of charitable immunity. In
1942, the U.S. Court of Appeals for the District of Columbia Circuit, in a
landmark decision, rejected the doctrine of charitable immunity.63 Other
courts also have ruled that there is no such immunity; some, though, have
upheld immunity for certain types of charitable institutions by drawing
distinctions between paying and non-paying parties. With the increasing
availability of liability insurance, most courts now hold charitable
organizations liable to the same extent as individuals and private
corporations.
TORT REFORM
In the early twentieth century, state and federal legislative bodies enacted
laws that provide a uniform schedule of compensation to employees
injured in the course of their employment. This usually takes the form of
worker’s compensation laws previously discussed. These laws have been
modified frequently, with the trend being to provide more generous
benefits to injured workers. In the latter part of the twentieth century,
legislative bodies began to seriously revise the laws concerning tort
liability in respect to motor vehicle accidents.
SIDEBAR
Congress has been unable to agree on any major tort reforms in recent
years. In contrast, state legislation in the above areas has been prolific,
meeting varied reactions from the courts. In a number of states, the highest
courts have upheld various state laws initiating tort reforms. Many,
however, have struck down, in whole or in part, laws capping tort awards
and shortening statutes of limitation. Courts have often found such reforms
contrary to state constitutional provisions guaranteeing the right to trial by
jury in civil cases. Despite reformers having made gains in state
legislatures, proponents of restrictions on tort suits now are fighting in the
courts to protect their gains.
Some laws that have been invalidated have been unclear as to how they
are to be applied by judges and juries. Many advocates of tort reform
contend that courts are more likely to sustain reform legislation where the
laws provide clear outlines for making awards of damages. One thing is
certain: the concept of tort reform will remain viable, with legislative and
judicial activity continuing to demonstrate the dynamic qualities of this
area of the law.
CONCLUSION
The basic function of tort law is to compensate those who are injured or
who suffer economic losses as a result of someone else’s intentional or
negligent conduct or unreasonably dangerous activity. But it also serves to
deter persons from improper conduct, and, in some instances, to punish
wrongdoers. Moreover, the availability of tort remedies is designed to
prevent those who suffer injuries or losses from resorting to retaliation or
self-help against those perceived to be at fault.
Although of common law origin, tort law and its development have
paralleled the dynamics of American society, and the principle of fairness
has played an increasing role in determining standards of care. Liability
based on negligence (rather than strict liability), the economic distribution
of risks through worker’s compensation, and the availability of liability
insurance allowed America to become the world’s greatest industrial
nation.
In recent decades, as ownership of motor vehicles became almost
universal, many states replaced the doctrine of contributory negligence
with a fairer doctrine of comparative negligence, and the trend has been to
distribute risks among motorists under a no-fault concept. Modern
technology also has enabled manufacturers to produce safer products.
Courts have responded by holding manufacturers and sellers of products to
strict liability for damages resulting from defective products.
Old immunities of governmental and charitable institutions have been
severely limited, as insurance has provided a method of risk management
compatible with modern conditions.
Legislatures and courts will continue to struggle to enact reforms to
fairly compensate those who suffer injuries and losses while not unfairly
penalizing those whose actions cause those injuries and losses. These are
the dynamics of tort law.
A tort is a wrongful act that results in injury or loss to the victim. The most
common tort today is the tort of negligence based on a tortfeasor’s
wrongful act or omission and is illustrated by negligent operation of a
motor vehicle. Another prominent example is malpractice by a
professional. One simple way of remembering the required elements of the
tort of negligence are four key words: duty, breach, causation, and
damages. Defenses to actions based on negligence include contributory or
comparative negligence of a plaintiff or a plaintiff’s consent or assumption
of risk.
Intentional torts against persons or property include such common
examples as assault, battery, false imprisonment, trespass to land or
personal property, defamation, fraud, and misrepresentations. Among the
defenses commonly asserted by defendants sued for intentional torts
against a person are consent, self-defense, and authority of the law. In
actions based on torts against property, defendants often assert reasonable
use of force and necessity as defenses. In an action for defamation, a
defendant may assert the defense that the statements made were true or
privileged.
A species of historic torts now broadened in the American legal system
is known as strict liability. Originally applied against keepers of dangerous
animals and persons conducting such inherently dangerous activities as
blasting, the doctrine has been made applicable to those who supply goods
whose defects cause injuries or losses to others. In another social
development, worker’s compensation insurance has largely replaced the
uncertainties associated with suits by employees against their employers.
Tort law also provides that a party may be vicariously liable, that is, one
person is held legally responsible for the actions of another person based
on control over someone’s activities. The most common example is an
employer’s being held liable for acts of an employee committed within the
scope of employment. In many instances, legislatures and courts have
imposed vicarious liability on owners of motor vehicles who permit others
to operate their vehicles.
The student should gain an awareness of the many special tort situations
such as survival actions, wrongful death, wrongful birth and life, and
preconception torts as well as the growing field of toxic torts and the
quasi-tort involving liability for deprivation of a person’s constitutional
rights. These torts and the elimination of traditional immunities based on
sovereignty and the relationship of parties illustrate this very dynamic area
of the law. The newest areas of developing tort law concern no-fault
automobile insurance laws and attempts to establish new principles of tort
law concerning tobacco and pharmaceuticals.
Finally, the student should become conversant with the legislative and
judicial trends in tort reform. Attempts to limit non-economic damages and
awards of punitive damages, and to shorten some statutes of limitations
and limit joint and several liability, are now under way in many states.
Helland, Eric, and Alexander Tabarrok, Judge and Jury: American Tort
Law on Trial (Independent Institute 2006).
Kionka, Edward J., Torts: Injuries to Persons and Property (West Group
1999).
Lewis, Anthony, Make No Law: The Sullivan Case and the First
Amendment (Vintage Books 1992).
Litan, Robert E., and Clifford Winston (eds.), Liability: Perspectives and
Policy (Brookings Institution 1988).
O’Connell, Jeffrey, The Injury Industry (University of Illinois Press 1971).
Olson, Walter (ed.), New Directions in Liability Law (Academy of
Political Science 1988).
Posner, Richard A. (ed.), Tort Law: Cases and Economic Analysis (Little
Brown 1977).
Rabin, Robert L. (ed.), Perspectives on Tort Law (4th ed., Aspen
Publishers 2003).
Schuck, Peter H. (ed.), Tort Law and the Public Interest (W.W. Norton
1991).
Shavell, Steven, Economic Analysis of Accident Law (Harvard University
Press 1987).
assault
assumption of risk
attractive nuisance
authority of law
battery
breach of duty
“but for” test
caveat emptor
charitable immunity
collateral source rule
comparative negligence
compensatory damages
consent
consortium
constructive notice
contingent fee
contributory negligence
conversion
dangerous instrumentality
deadly force
defamation
defense of a third person
discretionary activities
dram shop acts
duty
false imprisonment
firefighter’s rule
foreseeable
fraud
gross negligence
implied consent
independent contractor
informed consent
intentional acts
intentional infliction of emotional distress
intentional tort committed under color or authority of law
interspousal immunity
intervening act
invasion of privacy
invitee
joint and several liability
libel
licensee
misrepresentation
necessity
negligence
negligence per se
negligent acts or omissions
negligent hiring
negligent infliction of emotional distress
no-fault automobile insurance laws
nuisance
parental immunity
preconception tort
privilege
products liability
professional malpractice
proprietary or operational activities
proximate cause
public figures
public officials
punitive damages
qualified privilege
reasonable force
reasonable person
res ipsa loquitur
self-defense
slander
social host
sovereign immunity
statute of limitations
strict liability
survival statutes
tort
tortfeasor
toxic torts
transferred intent
trespass to land
trespasser
vicarious liability
worker’s compensation acts
wrongful birth
wrongful death acts
wrongful life
ENDNOTES
Introduction
Personal Property
Real Estate
The Lessor-Lessee Relationship
Regulation of the Use of Real Property
Eminent Domain
Trusts
Wills and Intestate Succession
Estate, Gift, and Inheritance Taxes
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
CASE IN POINT
As a result of a dispute over the price of a modular home the plaintiff sold
to the defendants, the plaintiff filed a suit for replevin (an action to recover
personal property) against the defendants, who purchased a modular home
from the plaintiff. Upon purchasing the modular home the defendants had
it bolted to a concrete foundation and connected to utility lines and it
became the family residence. The trial court concluded that the modular
home sold to the defendants was personal property, and allowed the
plaintiff’s action for replevin. The defendants appealed, contending that
their home was so annexed to their real property that it lost its character as
personal property, and, therefore, was not subject to the replevin action.
The appellate court agreed with the defendants and reversed the trial
court’s judgment.
In ruling for the defendants, the appellate court observed that the
paramount factor to be considered is the objective intent of the annexor to
make the item a permanent accession of the freehold. The court explained
that the annexor’s intent can be inferred from “the nature of the article, the
relation of the party annexing, the policy of law in relation thereto, the
structure and mode of annexation, and the purpose and use for which the
item was annexed.” The court concluded, “[T]he fact that this chattel is a
home, coupled with evidence that it was bolted and nailed to a foundation
and connected to all utilities, established that it was annexed to defendants’
real property.” Thus, the modular home was no longer personal property
and not subject to the plaintiff’s action for replevin to regain possession of
the home.
PERSONAL PROPERTY
To “own” personal property one must have dominion and control over it.
Usually, this is accomplished by possession of the tangible item that a
person has either created or produced or acquired by purchase or gift. One
who paints a picture or who grows crops has created or produced property.
Acquisition by purchase is a simple concept, but sometimes controversies
arise as to whether a donor has made a legal gift to a donee. To determine
if a gift has been made, courts examine evidence of the donor’s intent and
whether a delivery of the gift has been made by the donor and accepted by
the donee. If the size of the item permits, a gift should ordinarily be
delivered manually; if too large to be manually delivered, something
symbolic of the gift, for example, the keys to an automobile, should be
given to the donee.
In addition to dominion and control, some items of personal property,
for example, motor vehicles, airplanes, and boats, require a certificate of
title in order for a person to have an ownership interest that can be
transferred. Items of intangible property such as cash in a checking
account, a promissory note, or shares of stock in a corporation are usually
transferred by check, endorsement, or a written assignment, respectively.
REAL ESTATE
Under early English law, the King was considered as the dominant owner
of the lands of the country. The King made certain grants to feudal lords
who possessed various tracts of land referred to as manors. In the manorial
system of land holding, the lord of the manor, in turn, would grant his
tenants certain rights in the land accompanied by certain obligations of the
tenant to the lord. This system was known as land tenure. There existed
several types of tenure, but primarily there were three. One who had a fee
simple estate could dispose of it at will. Those who had fee tail estates
could only dispose of their estates within their family, while those who had
simply life estates or estates during the life of another were further
restricted in transfer of their interests. A significant development occurred
in 1290 by enactment of the Statute of Quai Emptores. This English statute
allowed freemen to transfer their estates in real property to another, with
the new possessor to have the same obligations to the lord of the manor.
The early English system of land conveyancing became part of the
common law and was adopted by the new American states. Even today, we
speak of fee simple ownership to indicate the highest estate in land. Today,
sales of real estate are completed by a deed, a written document by which
an owner transfers title. Gifts of real estate occur by a deed, by a will upon
an owner’s demise, or by the laws of inheritance. Indeed, while most deeds
or devises under a decedent’s will transfer fee simple title, a deed or will
may transfer a life estate, that is, ownership rights to the property during
the owner’s lifetime. A life tenant must maintain the improvements on the
property and ordinarily must pay the real estate taxes assessed against the
property. The life tenant of the property must protect the value of the
property for benefit of the person who becomes the owner upon decease of
the life tenant. At that time, another party (called a remainderman)
designated in the deed or will, usually becomes the owner.
SIDEBAR
Warranty Deeds
Under the common law, a warranty deed would set out a number of
covenants by the grantor. State statutes often prescribe a form of
warranty deed that is deemed to include such covenants if drafted
substantially as provided by the statute. For example, Section 689.02,
Florida Statutes prescribes the following form:
* * * * *
This indenture, made this day of ____ A.D. ____ between ____ of the
County of ____ in the State of ____, party of the first part, and ____ of
the County of ____ in the State of ____, party of the second part,
Witnesseth:
That the said party of the first part, for and in consideration of the
sum of ____ dollars, to her or him in hand paid by said party of the
second part, the receipt whereof is hereby acknowledged, has granted,
bargained and sold to the said party of the second part, her or his heirs
and assigns forever, the following described land, to wit: ____.
And the said party of the first part does hereby fully warrant the title
to said land, and will defend the same against the lawful claims of all
persons whomsoever.
* * * * *
Section 689.02, Florida Statutes provides that “[a] conveyance
executed substantially in the foregoing form shall be held to be a
warranty deed with full common-law covenants, and shall just as
effectually bind the grantor, and the grantor’s heir, as if said covenants
were specifically set out therein.”
Other statutes provide for the proper signing of the deed and the
requirements for witnesses to the signers’ signatures and for
acknowledgment of the signers before a notary public or other officer
before the deed can be recorded in the public records.
Mortgages
One who borrows money using real property as collateral signs a
promissory note payable to the lender providing for repayment of the loan
and interest according to the terms of the note. The borrower secures
payment of the note by executing a contractual document known as a
mortgage creating a lien against the borrower’s real property. Some loans
carry a fixed rate of interest; others provide for an adjustable rate of
interest based on fluctuations in the interest rate in the credit markets. In
most states, a mortgage must be executed in a manner similar to execution
of a deed. In fact, the typical mortgage appears much like a conveyance of
property but includes a number of stipulations designed to protect the
lender. The party mortgaging property is known as the mortgagor, and the
lender is known as the mortgagee. In some instances, particularly in the
sale of a residence, a seller often agrees to “take back a mortgage” as part
of the purchase price. This type of legal instrument is known as a
purchase money mortgage. To prevent subsequent purchasers of the
property or a later mortgagee from gaining priority, it is essential for the
mortgagee to record a mortgage in the office where deeds are recorded.
Many institutional lenders require a mortgagor to purchase private
mortgage insurance (PMI) to guarantee the mortgagee against loss in the
event of a foreclosure of the mortgage. In home financing, often the
homeowner (mortgagor) makes monthly payments of principal and interest
on the mortgage loan and deposits an additional sum to pay real estate
taxes, insurance, and PMI. Banks and other commercial lenders frequently
sell mortgages to institutions that invest in mortgages.
A mortgage document contains a number of covenants that bind the
mortgagor. Among these are covenants to promptly make all payments
required by the note secured by the mortgage, pay real estate taxes and
assessments against the property, and keep any improvements on the
property insured against casualty losses such as fire and windstorm. If the
mortgagor transfers title to the real estate, the mortgagee’s interest remains
intact and the new owner of the real estate takes title subject to the lien of
any recorded mortgage. In some instances, a mortgage includes a due-on-
sale clause and the mortgagor must secure approval of the new buyer by
the mortgagee in order to allow the new buyer to assume the mortgage,
otherwise the mortgagee can declare the entire loan due upon the sale.
The common law treated a mortgage much as it did a deed and provided
the mortgagee had title even though the mortgage loan was not in default.
Most states today treat a mortgage as a lien that does not ripen into a title
until the necessary steps to foreclose the property are completed. The
mortgagee can foreclose a mortgage if the mortgagor fails to make
required payments under the note secured by the mortgage or fails to
comply with the other covenants contained in the mortgage. If a court
enters a judgment of foreclosure, the owner of the property is generally
afforded the right of redemption. This means that the mortgagor can pay
off all sums due the mortgagee and continue to own the property. One
problem with exercising this right is the cost, including court costs,
attorney’s fees, and other expenses associated with the foreclosure. If the
mortgagor does not exercise this right, the property is sold at a public sale
and the proceeds of the sale are applied as determined by the court, usually
giving a first mortgagee priority after payment of costs associated with the
foreclosure. In some instances, where sale of the property does not provide
sufficient funds to pay the costs of foreclosure and repay the mortgagee,
the court will enter a deficiency judgment against the mortgagor for the
balance due the mortgagee.
Some states follow a different procedure. They use a deed of trust
instead of a mortgage. The borrower deeds the property that secures the
loan to a trustee. The trustee, in turn, holds title to the property. If the
borrower defaults, the trustee notifies all interested parties and conducts a
public sale of the property in order to pay the sums due the mortgagee.
Lenders consider this arrangement preferable because it allows the lender
to recover the money loaned without the formalities and delays attendant
with a court proceeding.
Adverse Possession
In what today has become rare, title to land may, in some instances, be
acquired by adverse possession. To acquire land by adverse possession, a
person must comply strictly with the statutory requirements of state law.
These laws vary but usually require that the adverse possessor hold the
property “openly and notoriously” and continuously for a period of time
usually varying from seven to twenty years. The adverse possessor may
also be required to fence, cultivate, or otherwise use the land consistent
with local land use practices for the type of property involved. Many laws
require the adverse possessor to file a property tax return with local taxing
authorities describing the land and pay real estate taxes on the property.
Joint Tenancy
In a joint tenancy, the owners each own an undivided (usually equal)
portion of the real estate. The legal instrument (deed or will) creating the
joint tenancy usually provides that upon the death of one joint tenant the
remaining joint tenant or tenants become(s) the owner or owners of the
decedent’s share. Sometimes joint tenants cannot agree on how to manage
their property and they may choose to divide the property. If they cannot
agree on how to divide the property, one party might institute a court
action known as a partition suit. In a partition suit, the court divides the
property, if feasible, and if not, it orders the property sold and the net
proceeds divided according to the interests of the joint tenants.
Tenancy in Common
A tenancy in common is similar to a joint tenancy but does not provide
for survivorship rights. A tenant in common owns an undivided interest in
the real estate. Upon death of a tenant in common, who held his or her
interest in his or her individual name, the decedent’s heirs at law would
inherit the deceased tenant’s share of the property. If the decedent died
with a valid will, the deceased tenant’s share would be distributed
according to the terms of the will. As in the case of joint tenants with right
of survivorship, tenants in common can alter their interests by executing
the necessary deeds or resorting to a partition suit.
Community Property
Several states, largely in the western United States, have community
property laws. Community property laws were unknown to the English
common law. They originated from the Spanish and French laws during
colonization in the western United States. Community property states have
statutes defining community property rights, and while they vary
somewhat, they generally provide that each spouse is deemed to own one-
half of property acquired during the marriage. The community property
concept does not affect ownership of property acquired by either spouse
prior to their marriage or to property acquired by gift or inheritance. The
concept of community property is discussed more extensively in Chapter
8.
PURCHASING A HOUSE
The purchase of a residence illustrates an everyday application of the law
of property. Sales of homes (and other real properties such as farms and
buildings) are common transactions in today’s mobile society. To illustrate
the process, we consider a young couple looking to purchase a home. After
selecting the area where they intend to reside, often the next step is to scan
the advertisements of homes for sale, look for signs offering a home for
sale by an owner, or engage the services of a real estate broker. Real estate
brokers usually (but not always) receive their compensation in the form of
a sales commission paid by the seller.
Once the couple finds a house within their price range that meets their
requirements, the next step is to sign a written offer to purchase that
includes the offering price, legal description of the property, terms, and
conditions of purchase. Often, the offer to purchase will be conditioned on
the buyers’ being approved to assume an existing mortgage or to obtain a
mortgage loan for a certain amount. The offer to purchase normally is
accompanied by a good-faith cash deposit, and the seller is then allowed a
short period of time to accept or reject the offer. Where a broker is
involved, it is the broker who retains the deposit in an escrow account. A
standard form of offer to purchase and deposit receipt becomes a binding
contract once accepted by the seller. This contract usually provides that if
the buyers do not perform their part of the contract, the seller may retain
the good-faith deposit as liquidated damages. Where a real estate broker is
involved, the deposit money that is forfeited is generally divided between
the seller and the broker.
An offer to purchase usually contains a number of other provisions.
These include whether the purchase price is to be paid in cash or through
financing, who is to furnish an abstract of title or title insurance policy,
how real estate taxes and assessments are to be handled, an inventory of
personal property, if any, to be included, and the closing date and place. In
recent years, standard contracts for purchase of homes have included
provisions to assure the buyers that there are no structural defects in the
house and that electrical, plumbing, air conditioning, heating, and other
systems and all appliances will be in good working order at time of
closing. Depending on local customs, other provisions may be included.
Many of the items in offers to purchase are subject to negotiation. Real
estate agents typically perform this function on behalf of the seller and
buyers, but a couple buying a home may be well advised to secure advice
from a real estate attorney before signing a document that commits them to
purchase. The attorney will advise as to the form of the contract and
concerning zoning, deed restrictions (including dues to and assessments by
homeowners’ associations), easements, and other factors that may be
important to the buyers.
In most instances, the buyers will obtain a mortgage loan from a bank or
other institutional lender. The buyers will complete an application for the
loan. Before approving a loan, the lender will impose certain requirements.
Initially, the lender obtains a credit report to find out if the purchasers are
creditworthy. If so, the lender will usually have a qualified appraiser
determine the market value of the house and hire a land surveyor to
prepare a survey of the property and depict the location of the house on the
land and show that there are no encroachments on the property being
purchased. A real estate broker will assist the purchasers in handling many
of the details of financing. The buyers’ attorney will examine the title to
the property or secure a commitment from a title insurance company to
issue the new owners a title insurance policy upon their acquiring title to
the property.
At the time of closing, the buyers (and their lender, if financing has been
secured) will pay the balance of the contract price to the seller. The seller
will execute a deed (usually a warranty deed) conveying the title to the
purchasers, usually as husband and wife, and will deliver the deed to the
buyers. The lender will examine the deed and submit the buyers a note and
mortgage and certain disclosure statements concerning the financing of the
property. The buyers then execute the note and mortgage. If the buyers are
assuming an existing mortgage, approval of the present mortgage holder
should be obtained along with evidence of the balance of the mortgage
loan being assumed. The lender will see that the necessary documents are
recorded in the land records of the city or county. An attorney who
represents the buyers will examine all the relevant documents to ensure
everything is properly completed.
The transfer of real estate may require payment of certain fees and
taxes, including a fee for recording necessary legal documents. Of course,
the sale of real estate may have income tax consequences under the
Internal Revenue Code and any applicable state tax laws and regulations.
CASE IN POINT
The Ratcliffs divided a tract of land and sold parcels to the defendants
Broadhead and others. The Terpenings, plaintiffs, acquired a parcel of the
former Ratcliff tract from someone who had purchased it from the
Ratcliffs. The only established way of ingress and egress to the
Terpenings’ property required traversing the property now owned by
Broadhead and the other defendants. The plaintiffs claimed that an
easement of necessity was created in favor of those who purchased the
landlocked property now owned by the Terpenings. The Mississippi
Supreme Court observed that “…the Broadheads were not the parties
responsible for dividing up the Ratcliff estate in such a way that the
portion now owned by the Terpenings was rendered inaccessible except by
passing over other portions of the formerly unified lands.” Nevertheless,
the court reasoned that when the Ratcliffs parceled up their property and
sold it to others, an easement of necessity was created for the person who
purchased the landlocked portion of the estate now owned by the
Terpenings. Such an easement of necessity, the court declared, runs with
the land and passes with each conveyance to subsequent owners.
A license in real property is a right permitting someone to do some
specified thing on another person’s land.17 For example, one whose land
has a pond may permit a friend or neighbor to fish there. Unlike an
easement, a license is not an interest in land. A license may be granted
orally, and in most instances it is revocable by the landowner.18
Restrictive Covenants
A land developer who subdivides land often files a written declaration of
restrictive covenants to bind those who purchase vacant lots or houses in
the subdivision. This is to provide a certain level of quality and may limit
the use of the land solely to residential purposes and prescribe that houses
built are to be of a certain size within specified distances from one another.
These are very common where there are no local zoning controls or in
instances where the developer deems the zoning inadequate to maintain the
desired quality of the neighborhood. The restrictive covenants may provide
for enforcement by the subdivider of the land or by property owners within
the subdivision. Historically, restrictive covenants were sometimes used to
restrain homeowners from selling their homes to people of certain races. In
1948, though, the Supreme Court said that judicial enforcement of racially
restrictive covenants constitutes a violation of the Equal Protection Clause
of the Fourteenth Amendment to the U.S. Constitution.23
EMINENT DOMAIN
Public Use
Previously, the term public use has included improvements to
infrastructure (roads, bridges, canals, etc.) as well as public amenities such
as parks and schools. In the twentieth century, courts approved takings to
allow construction of stadiums, railroad lines, and power plants, even
though title often was transferred to private parties. Indeed, governments
have used eminent domain to engage in urban renewal programs and even
to redistribute land. Consequently, through government action and judicial
approval, “public use” has been redefined as “public purpose” or even
“public interest.”
In United States v. Gettysburg Electric Railway Co. (1896),25 the
Supreme Court said that “when the legislature has declared the use or
purpose to be a public one, its judgment will be respected by the courts,
unless the use be palpably without reasonable foundation.” Similarly, in
Berman v. Parker (1954),26 the Court stated that “when the legislature has
spoken, the public interest has been declared in terms well-nigh
conclusive.” And in Hawaii Housing Authority v. Midkiff (1984),27 the
Court indicated that a taking should not be invalidated under the Public
Use Clause as long as it is “rationally related to a conceivable public
purpose.” Clearly, such language gives elected officials broad latitude to
use eminent domain as they see fit.
In Kelo v. City of New London (2005),28 the U.S. Supreme Court
permitted a city to use eminent domain to facilitate an ambitious
waterfront development project, even though title to real property would
be transferred to private developers. The city claimed that the new
development would create jobs, generate substantial tax revenues, and help
revitalize its downtown area. And even though a private developer would
undertake the project, there would be restaurants, stores, and other
amenities that members of the public could enjoy. Dividing 5-4, the
Supreme Court agreed that this combination of benefits was sufficient to
meet the requirements of the Public Use Clause. Writing for the majority,
Justice Stevens had no difficulty concluding that New London’s plan
“unquestionably serves a public purpose.”
Because Kelo can be seen as giving cities carte blanche in their exercise
of eminent domain, it was roundly condemned by advocates of private
property rights. Of course, state courts may provide greater protection to
private property rights under the relevant provisions of their state
constitutions.29 It is also noteworthy that since the Kelo decision, thirty-
four states have enacted laws restricting the exercise of eminent domain by
state and local agencies. For example, in 2006 Florida voters approved an
amendment to the state constitution providing, “Private property taken by
eminent domain… may not be conveyed to a natural person or private
entity except as provided by general law passed by a three-fifths vote of
the membership of each house of the Legislature.” 30
In 2013, officials in the town of Richmond, California discussed a
unique justification for using eminent domain. Specifically, they proposed
seizing properties that were in foreclosure for the purpose of permitting the
delinquent homeowners to remain in their dwellings; however, investment
firms with interests in the foreclosed properties have threatened legal
action if the town invokes eminent domain for this reason, and perhaps as
a result, the town has not yet moved forward with its plan.
Just Compensation
When the condemning authority and the property owner cannot agree on
what constitutes just compensation, the amount of compensation is
determined by a court. The condemning authority introduces evidence that
the property being taken is required for public purposes and presents real
estate appraisers who offer expert opinions on the value of the property
being condemned. The property owner, in turn, has the right to testify
concerning the value and use of the property being taken and to present
appraisers as expert witnesses to testify as to the market value of the
property. In most cases, a jury determines the amount of compensation due
the property owner. Judges usually instruct juries that “just compensation”
equates to fair market value. Courts generally determine fair market value
as the price at which the property being condemned would change hands
between a willing buyer and a willing seller, neither being under any
compulsion to buy or sell and both being knowledgeable of relevant facts.
The testimony as to the amount of compensation to be awarded can
become very technical when the condemning authority takes real estate
that effectively abolishes or diminishes the owner’s ongoing business. In
such instances, accountants and economists often appear as expert
witnesses on behalf of the owner. In some states, courts can award a
condemnee attorney’s fees in addition to damages to compensate for a
taking.
Regulatory Takings
The drafters of the Fifth Amendment Takings Clause undoubtedly had in
mind physical takings by government; however, courts have long
recognized applicability of the Clause to governmental regulatory actions
as well as physical takings. In some instances, government regulations
have greatly affected the economic value of an owner’s property. For
example, in 1987 the U.S. Supreme Court ruled that a land use regulation
can effectively become a taking where the regulation does not substantially
advance legitimate interests of the government or where such regulations
deny the owners use of their land.31 The Court has noted the Takings
Clause “is designed not to limit the governmental interference with
property rights per se, but rather to secure compensation in the event of
otherwise proper interference amounting to a taking.” 32
The need to protect the environment has caused governmental agencies
to take steps, for example, denying a permit to fill wetlands, which have
greatly burdened an owner’s use of private property. Some instances
where courts have required the government to pay just compensation
include governmental efforts to protect coastal areas from erosion.33 In a
case where the government sought to protect water quality from strip-
mining activities, a federal court even held that the Surface Mining Control
and Reclamation Act, which permitted such governmental action, effected
a compensable taking.34
CASE IN POINT
TRUSTS
CASE IN POINT
For twenty-eight years Duane Allen was married to Belva Allen. The
couple had two children, Fred and Louise. Belva died in 1970, and in 1972
Duane married Mary. He executed wills in 1975 and 1976 that included
his children, Fred and Louise. Then in 1980, Duane and Mary executed
new wills leaving their estates to each other. Duane died on October 20,
1989, and Fred and Louise received nothing under their father’s new will.
They filed an action to set aside the decedent’s will, contending that Mary
unduly influenced her husband to execute his 1980 will. A jury returned a
verdict in their favor. Mary, as estate representative, filed an appeal
contending the evidence at trial was insufficient to show that she had
exercised undue influence on Duane in executing his will.
“Undue influence,” the appellate court observed, “must be such as to
substitute the will of the person exercising the influence for that of the
testator” and “is usually established by circumstantial evidence and may be
and often is based upon an accumulation of many factors.” The evidence at
trial revealed that Fred and Louise had a close relationship with their father
and were beneficiaries under a former will. The record further disclosed
that Duane suffered from a painful arthritic condition, was debilitated, and
had an alcohol abuse problem and was therefore more susceptible to
influence. The lawyer who prepared Duane’s 1980 will testified that Mary
had come to his office alone to request that he draft simple wills for her
and Duane, leaving their estates to each other, and that he had no private
conversations with Duane regarding the changes Duane’s will was making.
Finally, there was evidence that before Duane executed the 1980 will, he
had prepared but never executed a will devising his estate to his children,
with a life estate to his wife, whereas the contested will left his entire
estate to Mary.
The court found the evidence sufficient and affirmed the trial court’s
judgment invalidating the decedent’s 1980 will.
Since the early decades of the twentieth century, the United States
government has imposed a tax on estates and gifts. Since 1977, taxes on
gifts and estates have been combined. A decedent’s gross estate for estate
tax purposes consists not only of property in the decedent’s sole name that
is subject to probate but also life insurance and annuities on the decedent’s
life where the decedent owned the policies, property in certain types of
trusts the decedent established, business interests, the decedent’s interest in
jointly owned property, “pay or transfer on death” accounts, as well as
certain pension and profit-sharing interests. A person may make annual
exclusion gifts of certain amounts without tax consequences (currently
$13,000 to each donee); however, beyond these exempt amounts the gifts
made during a person’s lifetime are added to the value of the decedent’s
estate to determine the value of the estate for federal estate tax purposes.
The decedent’s adjusted gross estate, that is, the value of the decedent’s
estate less debts of the decedent and costs of administration, is entitled to
an applicable credit amount (unified credit). However, as the estate tax
continues to be a divisive political issue, the exact amount of this credit
continuance is often changed by acts of Congress. For example, in the year
2009, the exemption was set at $3.5 million. In 2010, there was no estate
tax at all, and in 2011, the exemption returned at a level of $5 million for
individual persons and $10 million for a couple that receives an
inheritance. In 2013, President Obama signed legislation called the
American Taxpayer Relief Act, which set the 2014 exemption at $5.34
million for individuals and $10.68 million for married couples, with future
exemptions slated to increase these amounts based on inflation rates. In
practical terms, in 2014, this information means that an estate valued at
$5.34 million or less will not incur any federal taxes upon transfer of assets
(although state taxes could apply). An estate that exceeds the specified
exemption in a given year, though, will be taxed at a rate of 40%.
Ultimately, the specific details of estate tax exemptions are regular topics
of debate in Congress, with many Republicans not only calling for lower
estate tax rates and higher exemptions, but even for the abolition of estate
taxes altogether.
In determining the decedent’s taxable estate, the adjusted gross estate is
reduced by deductions for charitable gifts, debts, and funeral expenses. In
addition, the estate of a married person is entitled to a marital deduction
of the value of the property transferred outright or in certain other ways to
a surviving spouse. Under current federal law, there is no limit on the
amount of the marital deduction; thus, assets of any value can be
transferred to a surviving spouse without a tax being levied. There are,
however, limitations on the marital deduction where the surviving spouse
is not a U.S. citizen. Of course, when the surviving spouse subsequently
dies, that spouse’s estate—having been increased by property received as
part of a marital deduction—may be quite large and thus subject to
considerable estate taxes for those who inherit it.
Another interesting aspect of this discussion lies in how the Internal
Revenue Service (IRS) treats same-sex marriages. In 2013, in United
States v. Windsor, the Supreme Court struck down a federal law called the
Defense of Marriage Act, which had defined marriage as a union between
a man and a woman. This ruling, in turn, potentially allows a married
same-sex couple to derive the benefits of federal marital deductions related
to estate taxes. The caveat, though, is that the couple must have a marriage
that is recognized as valid by one of the fifty states—and the Supreme
Court’s decision did not mandate that any state must permit same-sex
marriages. For more on this case and the matter of same-sex marriage in
general, see Chapter 8.36
As a result of the complex issues that can arise with an inheritance—and
the significant sums of money that are often at stake—for many
individuals, estate planning has become a very important activity in
present-day America. Estate planning takes into consideration a person’s
assets, family situation, and desires. It is designed to provide an effective
method of accomplishing one’s objective of distribution of assets while
minimizing taxes and costs of administration. In order to maximize the
estate that will be available to beneficiaries, a person who has an estate
that may be subject to federal estate taxes should seek the advice of an
attorney who practices in this field of law and other experts in the field of
taxes and financial management. In this way, one can be guided in making
lifetime and testamentary gifts and structuring an estate plan to take
advantage of available deductions.
CONCLUSION
One concept unmistakably emerges from this chapter: Property law, long
regarded as stable and unchanging, has become dynamic. History has
provided a needed stability in the law of property, yet as our nation’s
economy has changed from agricultural to industrial, and as it now
advances into the information age, new approaches to property rights have
evolved. In the early history of the United States, ownership of real
property represented by far the predominant wealth of individuals and
businesses. By the twentieth century, however, intangible assets
represented the greatest source of wealth in the nation.
Beyond that, the notion of an individual’s absolute right over the use of
private property is no longer feasible. Zoning laws and building standards
that were originally designed to control nuisances have become very
sophisticated in their restrictions on the use of real property. Additionally,
in response to environmental concerns, regulations necessarily have
altered the concept of free and unrestricted use of land. Even so, where
such regulations constitute a “taking” of an owner’s property, the owner is
entitled to receive just compensation from the government just as surely as
if the government effected a physical taking of the owner’s property.
Modern forms of financing also have enabled home ownership to
become widespread, and laws have been enacted to protect the interests of
those whose materials and labor have created or enhanced real property.
Further, condominium and cooperative ownership of real property is
popular and growing.
Ultimately, the transfer of wealth from one generation to another is no
longer accomplished by a simple will. During the past few decades, many
persons have accumulated large estates. Thus, estate planning to avoid
guardianships and excessive taxes has become commonplace, as have the
uses of trusts in the transmission of property to new generations.
KEY TERMS
abandoned property
accession
actual possession
ad valorem taxes
administrator
administratrix
adverse possession
after-born children
ancillary administration
assume the mortgage
bailee
bailment
bailor
beneficiary
board of adjustment
board of equalization
bona fide purchaser
building codes
chose in action
codicil
collateral
community property
condominium
condominium association
confusion
constructive possession
cooperative form of ownership
copyrights
covenants
deed of trust
deficiency judgment
devisees
disinherited
domicile
dominion and control
donee
donor
due-on-sale clause
easement of necessity
easements
elective share
eminent domain
environmental regulations
estate planning
estate tax
estates during the life of another
estates in real property
executor
executrix
fee simple estate
fee tail estates
“grandfathered in”
grantee
grantor
gratuitous bailments
heirs
inheritance tax
intangible personal property
inter vivos trusts
intestate
irrevocable trust
joint tenancy
joint tenants with right of survivorship
just compensation
land tenure
land use planning
landlord-tenant law
last will and testament
leasehold
legatees
lessee
lessor
licenses
lien
life estates
life tenant
living trusts
lost property
marital deduction
mortgage
mortgagee
mortgagor
mutual benefit bailments
partition suit
patents
personal property
personal representative
prescription
probate
probate court
public use
purchase money mortgage
quitclaim deed
real property
regulatory taking
remainderman
restrictive covenants
retaliatory eviction
revocable trust
right of redemption
right of survivorship
security agreement
security deposit
security interest
settlor
special exceptions
tangible personal property
tenancy by the entirety
tenancy in common
tenants in common
testamentary capacity
testamentary trust
testator
testatrix
trademarks
trust
trust agreement
trustee
undue influence
unified credit
variances
warranty deed
will
zoning
ENDNOTES
1. Chicago, Burlington, & Quincy R.R. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979
(1897).
2. See Walls v. Midland Carbon Co., 254 U.S. 300, 41 S. Ct. 118, 65 L. Ed. 276 (1920).
3. U.S. Const. art.I, §8, cl. 8.
4. 35 U.S.C. §154(a)(3).
5. “2012 Trends in Patent Case Filings and Venue,” by James Pistorino, available at:
http://www.perkinscoie.com/files/ upload/LIT_13_02Pistorino_2012Article.pdf
6. Association for Molecular Pathology v. Myriad Genetics, 569 U.S. ____, 133 S. Ct. 2107, 186
L. Ed. 2d 124 (2013).
7. 17 U.S.C. §302 (a).
8. See Feist Publications v. Rural Telephone, 499 U.S. 340, 111 S. Ct. 1282; 113 L. Ed. 2d 358
(1991); in this case, the Court ruled against a phone company’s attempt to copyright names in
a phone book, suggesting that although the standard for defining originality was a low one
requiring only a “minimal degree” of creativity, a compilation of names did not meet this
baseline threshold. Furthermore, the court noted that the substantial labor and effort associated
with transcribing the names was irrelevant to any assessment of originality.
9. 9 F. Cas. 342 (C.C.D. Mass. 1841).
10. American Broadcasting Companies, Inc., et al. v. Aereo, Inc., 573 U.S.____, 134 S. Ct. 2498,
189 L. Ed. 2d 476 (2014).
11. Elf-Man, LLC v. Cariveau, W.D. Wash. (Jan 17, 2014).
12. Ray v. Flower Hosp., 439 N.E.2d 942 (Ohio App. 1981).
13. Franklin v. Jackson, 847 S.W.2d 305 (Tex. App. 1992).
14. Weinberg v. Wayco Petroleum Co., 402 S.W.2d 597 (Mo. App. 1966).
15. See, e.g., State v. Chippewa Cable Co., 180 N.W.2d 714 (Wis. 1970).
16. See Nick Tamiraos, “The Foreclosure Fade and What it Means for the Housing Market,” Wall
Street Journal Online, available at: http://blogs.wsj.com/economics/2014/07/22/the-
foreclosure-fade-and-what-it-means-for-the-housing-market/.
17. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150 (Miss. 1992).
18. Mueller v. Keller, 164 N.E.2d 28 (Ill. 1960).
19. See, e.g., Morford v. Lensey Corp., 442 N.E.2d 933 (Ill. App. 1982).
20. Peterson v. Oklahoma City Hous. Auth., 545 F.2d 1270 (10th Cir. 1976).
21. 42 U.S.C. §3604.
22. 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926).
23. Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948).
24. Kohl v. United States, 91 U.S. 367, 23 L. Ed. 449 (1876).
25. 160 U.S. 668, 16 S. Ct. 427, 40 L. Ed. 576 (1896).
26. 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954).
27. 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984).
28. 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005).
29. See, e.g., the Ohio Supreme Court’s decision in City of Norwood v. Horney, 110 Ohio St. 3d
353 (2006).
30. Fla. Const. art. X, §6(c).
31. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 107 S. Ct. 1232, 94 L. Ed.
2d 472 (1987).
32. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S.
304, 315, 107 S. Ct. 2378, 2386, 96 L. Ed. 2d 250, 264 (1987).
33. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d
798 (1992).
34. See Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (Fed. Cir. 1991).
35. Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994).
36. United States v. Windsor, 570 U.S. ____, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013). In this
case, the same-sex marriage actually occurred in Canada, but had been recognized as valid by
the state of New York; therefore, the Supreme Court’s decision suggests that a marriage that is
recognized by a state can also be recognized by the federal government.
LEARNING OBJECTIVES
CHAPTER OUTLINE
Introduction
Contracts
The Uniform Commercial Code (UCC)
Business Associations
Consumer Protection
Bankruptcy
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
CONTRACTS
CASE IN POINT
Classifications of Contracts
Another method of classifying contracts is whether they are bilateral or
unilateral. A bilateral contract is one where parties exchange promises.
Most written contracts are bilateral. In contrast, a unilateral contract is
one where one party responds to another party’s offer by performing some
act. To illustrate: A homeowner offers a gardener $40 if the gardener
mows the homeowner’s lawn, and the gardener complies. The gardener’s
act represents the acceptance of the homeowner’s offer. This is a unilateral
contract.
In contract law, an executory contract refers to one that has not yet
been fully performed, while an executed contract is one where
performance has been completed. A voidable contract, such as a minor’s
contract to purchase an automobile, may be legitimately cancelled. A void
contract, though, is one the law does not recognize; an example would be
a contract between parties to injure or kill someone.
Finally, some contracts are classified as formal contracts while others
are called informal contracts. A negotiable instrument such as a check
or promissory note requires the use of certain language and legal terms;
hence it is called a formal contract. Other contracts are called informal
contracts, for although some written contracts are very detailed and
complex, the law does not specify the exact language that the contracting
parties must use.
Requisites of a Contract
The three basic components of a contract are typically referred to as offer,
acceptance, and consideration. More specifically, to have an enforceable
contract, there must be mutual assent of two or more parties who have the
capacity to contract and there must be consideration. The mutual assent
is based on one party’s offer and another party’s acceptance. To have the
capacity to contract, a person must have attained the age of legal majority
and must be mentally competent. Consideration is often thought of as
being synonymous with money, but it can involve an exchange of benefits
between parties, a promise, or even forbearance.
Consideration
Historically, in England, the Church held that a person who took a false
oath committed a serious sin. On this basis, the English common law
developed “oath taking” as a basis to determine if the parties to an
agreement were sufficiently serious for the court to find that a contract
existed. Later, the common law courts developed the concept of placing a
seal on a document to indicate that a party intended to be bound. During
the sixteenth and seventeenth centuries, the common law courts decided
that, in order to have an objective basis to determine whether parties to an
agreement intended to be bound by their offer and acceptance,
consideration should be an essential element of a contract. The
requirement was unique to the common law and was imposed to enable
judges to objectively determine the parties’ intent to be bound by an
agreement. Consideration came to consist of some benefit to a promisor
or some detriment to a promisee. In this form, the doctrine of
consideration in the law of contracts was accepted in America as part of
the common law.
By requiring consideration, the law seeks to prevent attempts to enforce
gratuitous promises. The most basic consideration is money; for example,
a student orders a cup of coffee and pays fifty cents for it. But the concept
of consideration goes beyond paying money for goods or services.
In addressing the requirement for consideration, the Restatement
(Second) of Contracts §75 states:
(1) Consideration for a promise is
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification or destruction of a legal relation,
or
(d) a return promise,
bargained for and given in exchange for the promise.
(2) Consideration may be given to the promisor or to some other
person. It may be given by the promisee or by some other
person.
The following examples illustrate some forms that consideration may take:
■ An act other than a promise. George agrees to shovel all the snow from
in front of Howard’s home in return for Howard’s promise to pay
George $50.
■ A forbearance from doing an act. Edgar, who has the legal right to build
an addition to the family home, agrees to refrain from doing so in
exchange for his neighbor Frank’s granting Edgar the right to pipe water
from Frank’s well to irrigate Edgar’s lawn.
■ Creation or destruction of a legal relation. Agnes agrees to withdraw
from a partnership in consideration of Cynthia’s becoming a partner in
her place.
■ A promise for a promise. Susan promises to pay Donald $20,000 for
Blackacre and Donald promises to convey (deed) Blackacre to Cynthia
for that sum. But note that a promise cannot be illusory, that is, it must
commit the promisor to do something. For example, a promise that “I
will agree to pay you sometime when I have money” is illusory for it
does not really commit the promisor to anything definite.
Adequacy of Consideration
Courts do not generally look to the adequacy of consideration. In
America, parties have the freedom to contract and strike the bargains they
desire. Therefore, if there is no fraud involved, a court will not be likely to
set aside a contract on the ground that the consideration is inadequate. So
if Alex agrees to buy a certain car from Acme Motors for $30,000, makes
a deposit, and signs the agreement, but it later turns out that Alex could
have bought the same car for $2,000 less from Big Town Motors, the
contract would not be subject to cancellation on the grounds of inadequate
consideration. There are exceptions. For example, Dana owes Adam
$1,000, and there is no dispute that the amount of $1,000 is due. Dana
sends Adam a check for $250 and notes on the check that it is “payment in
full.” The $250 would not be sufficient consideration to effect payment in
full. On the other hand, if there is a genuine dispute between the parties
over the amount due on the account and Dana offers and Adam agrees to
accept a lesser amount, then Dana and Adam have reached what the law
terms an accord and satisfaction and the debt is extinguished.
Promissory Estoppel
In certain situations, courts determine that it is unfair not to enforce an
agreement even in the absence of consideration. Under a doctrine known
as promissory estoppel, a court may enforce an agreement where it was
foreseeable that one party, in reliance on another’s promise, has incurred
expenses. For example, Joe relied on Kenneth’s promise to buy Joe’s boat
if Joe placed the boat in first-class condition. With Kenneth’s knowledge,
Joe expended a large sum of money to meet that condition. Kenneth
decides not to buy the boat, and Joe brings suit. A court might determine
that under the doctrine of promissory estoppel, Kenneth should not be
permitted to deny that a contract existed on the basis that there was no
consideration for the promise to buy the boat.
Many courts have employed the doctrine of promissory estoppel as a
substitute for the element of consideration where a pledge to provide funds
to a charitable organization is involved and the charity has relied upon that
pledge. Some even take the position that a charitable pledge is enforceable
whether supported by consideration or not, and even in absence of any
reliance by the charity.7 The Restatement takes the position that a promise
to make a gift to a charitable organization is enforceable per se without the
need to show consideration or any substitute therefor.8
In addition to the basic elements of offer, acceptance, and consideration,
parties to a contract must have the legal capacity to contract. Moreover, the
contract must be for a purpose that is neither illegal nor contrary to public
policy.
Capacity to Contract
A minor (usually defined as a person under age eighteen) does not have
the legal capacity to enter into contracts and thus may disaffirm a
contract. In practice, we know that minors enter into contracts to purchase
food, clothing, other necessary items, and some things that may not be
regarded as necessary. Buying lunch may be necessary, but clearly buying
a new sports car is not. A minor who enters a contract for necessaries may
be required to pay if those responsible for the minor’s custody do not. But
a minor who enters a contract to buy a car may disaffirm that contract
upon attaining majority. Alternatively, if not disaffirmed, the minor may
ratify the contract upon attaining legal majority. Marriage removes a
minor’s lack of capacity to contract. Furthermore, most state laws provide
that a minor age sixteen or over may petition a court to remove the minor’s
disability to enter contracts.
Persons under legal guardianship, whether as minors or for physical or
mental infirmities, are legally incapable of contracting. Nevertheless, an
adult placed under guardianship cannot generally avoid a contract made
prior to the guardianship.
A contract made by a person who is intoxicated to the extent of
impairment of normal faculties is voidable. Upon becoming sober, the
formerly intoxicated individual is permitted to affirm or disaffirm the
contract made while in an intoxicated state. Courts usually require that
action to disaffirm must be taken promptly.
Legality of Purpose
Obviously, the law will not enforce a contract to do an illegal act. For
example, a contract to injure or damage someone’s person or property in
exchange for a payment or an agreement to pay a bribe to a witness or
public official is void. Likewise, a contract that has as its purpose to inflict
fraud on a third party would be void. Where a lender agrees to charge a
usurious rate of interest, the contract may not be enforceable; however,
in some instances the court will enforce the contract to the extent of the
principal loaned but not the interest. State laws normally stipulate the rate
of interest a creditor may charge a borrower. Typically, these laws provide
higher levels of interest with respect to credit card and “payday” loans.
CASE IN POINT
For seven years, Plaintiff Michelle Marvin, a single woman, lived with
defendant Lee Marvin, a well-known movie star. After they separated, she
brought suit to enforce an alleged oral agreement whereby they agreed to
combine their efforts and earnings and share equally all property they
accumulated. Plaintiff alleged she gave up her career as an entertainer to
be the defendant’s companion, housekeeper, and cook; that in return, the
defendant agreed to provide for her for the rest of her life. The Los
Angeles Superior Court granted judgment for the defendant, and the
plaintiff appealed.
On appeal, the California Supreme Court rejected defendant Lee
Marvin’s contention that enforcement of the alleged contract would be
contrary to public policy because it involved an immoral relationship
between the parties. The court stated, “Agreements between nonmarital
partners fail only to the extent that they rest upon a consideration of
meretricious sexual services.…The fact that a man and woman live
together without marriage, and engage in a sexual relationship, does not in
itself invalidate agreements between them relating to their earnings,
property, or expenses.” The court returned the case to the trial court with
directions to determine the plaintiff’s property rights.
CASE IN POINT
ARE ALLEGED ORAL REPRESENTATIONS MADE BY A SELLER
ADMISSIBLE IN EVIDENCE TO MODIFY AN EXPRESS
WARRANTY?
Foundation Software Laboratories, Inc. v. Digital Equipment Corp.
United States District Court for the District of Maryland
807 F. Supp. 1195 (D. Md. 1992)
Assignments of Contracts
An assignment of a contract occurs when one party to a contract assigns
rights under the contract to another who is not a party to the original
contract. Contracts are generally assignable unless the contract or a statute
provides to the contrary. Even then, courts may approve an assignment.
Although rights under a contract may be assigned, a contracting party may
not delegate the duties imposed on such person under the contract. Beyond
that, the non-assigning party retains all rights and defenses under the
contract.
Although duties under a contract may not be assigned, in some
instances, they may be delegated. In all instances, however, the original
contracting party remains liable. In general, duties may be delegated where
the delegatee is in a position to perform as effectively as the delegator.
Some contracts envision a delegation. For example, a building contractor
customarily delegates to a subcontractor certain specialized phases of
construction. Of course, a delegatee is not liable to the delegator unless
the delegatee is furnished consideration necessary for performance. Other
duties that may be delegated include an obligation to pay money or deliver
standard goods. On the other hand, professional services such as those
provided by a physician, lawyer, or architect are examples of non-
delegable duties.
Performance of Contracts
Fulfillment of the promises under a contract constitutes performance.
Proper performance of all obligations under a contract discharges a
contracting party. There are other means of discharge. A person may be
excused from performing under a contract under the doctrine called
impossibility of performance. For example, if Alan was hired to repair a
beach cottage that was swept into the sea before his performance came
due, Alan is excused from performance. If a law is enacted that makes it
illegal to perform the obligations under a contract, the party obligated to
perform is discharged. Written contracts frequently include provisions that
the party required to perform will not be liable for delays due to strikes,
adverse weather conditions, or acts of God. These clauses are sometimes
referred to as force majeure clauses.
Damages
The principal remedy the law affords for a breach of contract is a suit for
compensatory damages. In law, “damages” means “dollars,” and to
recover damages the plaintiff must prove with reasonable certainty that the
damages claimed as a result of a breach of contract were reasonably
foreseeable by the parties. In some situations, a party must take steps to
avoid damages to whatever extent possible. Failure of a party to mitigate
damages can prevent recovery of such damages as could have been
avoided by reasonable efforts.16
Damages in contract cases are usually assessed by a jury. Damages are
designed to reimburse a person who has suffered losses because a contract
has been breached. Damages for breach of contract follow certain general
rules. Two illustrations:
■ If a seller breaches a contract to sell goods or real estate to a buyer, the
measure of damages would likely be the additional amount the buyer
may have to pay to obtain similar goods or property.
■ If a building contractor fails to complete the construction of a building
but the contractor has substantially performed the contract, the damages
would likely be the amount the owner would have to pay to another
contractor to complete the job plus other expenses, such as rent or
interest on a construction loan, that the owner may sustain.
One who suffers a breach but does not sustain actual damages may only
recover nominal damages. A party who establishes a breach, but who is
unable to prove having sustained any actual damages, may be awarded
nominal damages of one dollar.
In some contracts, the parties include a provision for liquidated
damages. This is a stipulation that in the event of a breach of the contract,
damages shall be deemed to be in a certain amount or shall be calculated in
a certain manner. Courts enforce liquidated damages provisions as long as
they bear a reasonable relationship to damages that were anticipated or that
occurred. But if the liquidated damages clause exacts a penalty, courts will
disregard it and require actual proof of damages. Frequently, construction
contracts for commercial buildings stipulate that in the event the building
contractor does not complete the building by a certain date, the contractor
will pay a certain sum for each day of delay beyond the agreed-upon date
of completion.
A court will sometimes award punitive damages where the party who
has breached a contract has committed a willful tort involving outrageous
or malicious acts. Punitive damages are much like a fine. While punitive
damages are not uncommon in tort suits (see Chapter 5), they are seldom
awarded in contract cases.
Rescission
Rescission of a contract is not a common remedy, but in instances where a
court determines that a party was fraudulently induced to enter a contract,
it may allow that party to rescind, that is, to cancel, the contract. Courts
may allow rescission of a contract and require restitution (repayment of
sums advanced) either where a contract is void or where a contracting
party is unable to perform.
CASE IN POINT
Specific Performance
Where money damages would be inadequate to compensate an injured
party, a court may award specific performance of a contract. Specific
performance is an equitable remedy and one that a court dispenses on a
discretionary basis and only where the terms of the contract are fair and
the duties to be performed are clear.
Courts often require specific performance where a contract to sell some
unique item of personal property is breached. An example would be where
a contract involves an antique or an heirloom or a valuable work of art and
where money damages would not compensate the person who contracted
to buy the antique. Courts consider each parcel of real estate unique and
will entertain suits for specific performance of a contract to purchase or
sell real estate. Usually, a court will not order a person to render personal
services in a specific performance suit, for example, requiring a singer to
perform on stage, as to do so may constitute involuntary servitude.
However, in such an instance the court may enjoin the singer from
performing elsewhere.
Sales of Goods
Article 2 of the UCC applies to contracts for the sale of goods. It does not
cover service contracts or contracts for the sale of real estate. Article 2-204
allows a sales contract for goods to be “made in any manner sufficient to
show agreement, including conduct by both parties which recognizes the
existence of such a contract.” Unlike the traditional common law rule,
Article 2-207 allows an acceptance of an offer in dealings between
merchants even if the acceptance proposes some changes. In addition to
express warranties that may accompany the sale of goods, Article 2-314
provides that, unless excluded or modified, there is an implied warranty
of merchantability that the goods are fit for ordinary use if the seller is a
merchant with respect to goods of that kind. Article 2-315 provides for an
implied warranty of fitness of goods for the buyer’s particular purpose if
the seller knows any particular purpose for which the goods are required
and that the buyer is relying on the seller’s skill or judgment to select or
furnish suitable goods. Article 2-316 allows certain warranties to be
modified or disclaimed in a conspicuous manner.
CASE IN POINT
Commercial Paper
Ordinarily, in a contract between two persons the law dealing with
negotiation of commercial paper does not come into play, but there
developed a need to have negotiable documents that could be used as
substitutes for money in commercial transactions where more than two
persons are involved. From a legal standpoint, the essential difference
between a non-negotiable and a negotiable legal instrument is that one
who takes a negotiable instrument (1) for value, (2) in good faith, (3)
without knowledge that it is overdue or has been dishonored, and (4)
without knowledge that there is any defense against or claim to it by any
person, becomes what the law terms a holder in due course. A holder in
due course occupies a privileged position as a transferee and (with a few
exceptions) takes the instrument free of all defenses to enforcing it.
Negotiable instruments are vital to commercial transactions. Some have
described a negotiable instrument as a “courier without luggage.” The
following contrasting scenarios illustrate this essential difference between
a non-negotiable and a negotiable instrument:
1. Arthur contracts to furnish certain equipment to Bill. Bill is to pay
Arthur in installments. Arthur assigns the contract to Charles. Bill
is dissatisfied with Charles’s performance and brings suit against
Charles. Contract law concerning assignments provides that
Charles, as an assignee of the contract, acquired the contract
subject to any defenses that Bill has against Arthur.
2. On the other hand, had Bill given Arthur a negotiable promissory
note that met the requirements of negotiability under the UCC,
Arthur could have transferred that note to Charles, who would be a
holder in due course and could have sold or otherwise transferred
the note for value to a third party. Thus, negotiable instruments
become a special class of commercial paper designed to be freely
transferred in commerce.
As the above illustration reveals, it is very important to determine
whether a particular legal document is negotiable. Article 3 of the UCC
deals with commercial paper and focuses on negotiable instruments, a
technical legal term dealing with checks, drafts, certificates of deposit, and
promissory notes, and the specific requirements for an instrument to be
negotiable. These requirements are technical but chiefly require the legal
document to be an unconditional order or promise in writing payable to the
bearer or “on order” (remember your check says “pay to the order of
______”), and payable on demand or at a fixed or determinable time.
A check is a legal instrument where a bank customer (drawer) orders
the bank (drawee) to pay the payee of the check a certain amount. A
promissory note is a legal document whereby one party (the maker)
promises to pay another party (the payee) a sum of money either on
demand or at a time certain. A draft is a written order drawn on one party
by another requesting the payment of a certain sum to a third person.
Checks and drafts involve three parties, whereas certificates of deposit and
promissory notes usually involve only two. Historically, such matters were
governed by principles of law called the law merchant, which later became
a part of the common law. Prior to the UCC, the Uniform Negotiable
Instruments Law governed these instruments in most states. The UCC
reflects much of the context of that law.
The importance of bank checking accounts for handling financial
transactions is reflected by the fact that the overwhelming majority of
families in the United States have one or more checking accounts with a
bank or other financial institution. Traditionally, these institutions
furnished their customers a monthly statement accompanied by cancelled
checks, which served as receipts. This model began to change after
Congress in 1978 enacted the Electronic Fund Transfer Act (ETF Act),
codified at 15 U.S.C. §1693 et seq. The ETF provides a basic framework
establishing the rights, liabilities, and responsibilities of participants in
electronic fund transfer systems. The most common types of transactions
covered are those involving debit cards, direct deposits, Automated Teller
Machine (ATM) transfers, and preauthorized debits from a customer’s
bank account. Today, after you have been notified, credit card companies,
utilities, and some other creditors commonly use your check to make an
electronic payment from your account. Your periodic bank statement must
show all electronic transfers to and from your account, but you do not
receive a cancelled check. If a financial institution does not follow the
provisions of the EFT Act, you may sue for actual damages.
SIDEBAR
Promissory Notes
A promissory note is a legal document whereby one party promises to
pay another party (the payee) a sum of money either on demand or at a
time certain. Following is the typical form of a promissory note:
____ [City], ____ [State], ____ [Month], ____ [Day], ____ [Year] On
____, 201 ____, for value received, (I)(We) promise to pay to the order
of ____ at ____ (name of place of payment; usually a bank) the sum of
____ dollars ($ ____) with interest thereon from date at the rate of ____
percent ( ____%) per annum. If this note is not paid promptly at
maturity, the maker and endorsers agree to pay all costs of collection,
including a reasonable attorney’s fee.
______
Signature of maker of note
Security Agreements
Article 9 of the UCC deals with security agreements. A security
agreement is a contract that grants a creditor a security interest in
collateral (security) pledged by a debtor or borrower. If the debtor has
rights in the collateral, a security interest attaches to the collateral as
provided in Article 9. In some instances, the holder of the security interest
takes possession of the collateral. In many instances, the debtor is allowed
to retain the collateral, for example, a car, and the security interest is
perfected by filing a financing statement with the appropriate government
office. The financing statement gives public notice of the security holder’s
interest. If the debtor defaults, the security holder can convert the collateral
into cash by conducting a sale in accordance with the provisions of Article
9.
BUSINESS ASSOCIATIONS
The common forms of business associations in the United States are the
sole proprietorship, partnership, corporation, and limited liability
company. The selection of the form of organization is based on the size of
the business undertaking, the number of investors required to capitalize the
business, the need for professional management, whether the business
activities will involve a risk of personal liability to the owners, tax
advantages, expenses of administration, and other factors. Throughout
history, individuals have operated as sole proprietorships. Historians trace
the development of partnerships and corporations to the Roman Law, but
in the United States the legal principles governing these organizations are
basically derived from the English common law. Of course, modern
business law has developed from early precedents, particularly in the field
of contract law, but federal and state statutes have played a key role in the
last two centuries.
Sole Proprietorships
The most common form of a business organization is the sole
proprietorship. The sole proprietorship is a solely owned form of
enterprise in which the owner has the responsibility and control, enjoys the
profits, and suffers any losses. Many professionals and retail stores and
services operate as sole proprietorships. Because, unlike a corporation, a
sole proprietorship has no legal identity apart from the owner, it is not
taxed separately for federal income taxes. A sole proprietor is personally
liable for performance of contracts and for any torts resulting from the
operation of the business. Often, state laws or local ordinances require that
sole proprietorships that operate under a name different from the owner
register under fictitious name laws. For example, if Lilly Jones owns a
women’s clothing store under the name Lilly’s Casuals, she may have to
register the fact that she is the owner of that business. This alerts everyone
to the true ownership of a business should any legal process be necessary.
Partnerships
A partnership is an association of two or more persons who combine their
money, property, and skill to carry on a lawful business for profit. A
partnership can be created orally—although it is preferable to have a
written agreement that describes its purpose, the term for which it is to
exist, the contributions and duties of the partners, the way that profits and
losses shall be shared or borne, and the desired manner for dissolution and
conclusion of the partnership’s affairs.
The advantage of a partnership is that it allows co-owners to pool their
talents and capital. The major disadvantages are that each partner is liable
for the debts of the partnership and the withdrawal or death of a partner
causes a termination of the partnership. Each partner is an agent for the
other partners, and each is individually and jointly liable for contract and
tort liabilities in the scope of partnership business. Consequently, if one
partner is insolvent and another partner wealthy, a creditor who obtains a
judgment against the partnership may enforce the judgment against the
solvent partner. Partnerships file informational federal tax returns;
however, the partners report their income or losses on their personal tax
returns.
The foregoing describes a general partnership, yet there is another form
of partnership authorized by law in states that have enacted the Uniform
Limited Partnership Act. This Act authorizes formation of a limited
partnership whereby one or more limited partners can limit their liability
for the firm’s debts to the amount of their investment. Organization must
be accomplished as provided by the governing statute, which will include a
requirement of obtaining a state certificate of partnership that usually
includes the partners’ written partnership agreement. A limited partner
who actively participates in operation of a partnership business becomes
liable on the same basis as a general partner.
In certain instances, persons who are not partners cause third parties to
rely in good faith on representations that they are partners in a business.
The usual scenario involves apparent partners misleading a creditor who
extends credit on the assumption of dealing with partners. In these
situations, courts may hold the apparent partners are estopped from
denying that a partnership relationship exists.
Corporations
It was Chief Justice John Marshall who, in 1819, described a corporation
as “an artificial being, invisible, intangible, and existing only in
contemplation of the law.” 17 In 1868, the Court further held that a
corporation is a “person” within contemplation of the Fourteenth
Amendment, thereby giving a corporation standing to sue in matters
concerning due process of law.18 Thus, as an artificial legal entity, a
corporation has a legal existence independent from its stockholders who
own shares of stock issued by the corporation. Corporations are chartered
principally under state law. Delaware is the leading state for chartering
corporations, due in part to the state’s corporate-friendly tax laws and the
fact that Delaware courts have developed a large body of law concerning
corporations, which makes for more predictability. The corporate charter
grants a corporation certain powers, provides for the shares of stock to be
issued, and provides for the selection and duties of the officers and
directors who are to govern the corporation. The shares of stock issued by
a corporation represent the interests of its investors. The common stock
carries with it the right to vote for directors and receive the net assets upon
dissolution of the corporation. Holders of preferred stock are usually
given priority to receive dividends and to receive assets upon dissolution.
Corporations may be publicly held as most large corporations are, with
stockholders numbering in the thousands or millions. But corporations also
may be quite small, where the stock is closely held, as is the case in most
small business corporations. These latter corporations are frequently
referred to as closed or closely held corporations.
Why a Corporation?
There are several advantages to operating a business as a corporation.
They may be summarized as follows:
■ Limited liability. Unlike one who invests in establishing a sole
proprietorship or partnership, those who acquire shares of stock in a
corporation are not liable for its debts and are not called upon to respond
to legal actions involving the corporation. A variation of the business
corporation is known as a professional association (PA) in which
doctors, lawyers, and other professionals may incorporate. Rules for
limiting the liability of such professionals, especially in the area of
professional malpractice, differ from rules concerning the limited
liability afforded stockholders in regular business corporations.
■ Aggregation of capital. By selling shares of stock, a corporation can
aggregate the capital it requires to carry on and expand its business.
■ Perpetual existence. Because a corporation is itself a “being,” it has
perpetual life—at least until dissolved according to law. Thus, an
incorporated business does not have to cease operations when a
shareholder or director dies or becomes incompetent.
■ Transferability of ownership. Because ownership of the corporation
is represented by shares of stock, it is easy to transfer ownership.
Changes in stock ownership, in general, will not affect the corporation’s
business.
■ Continuity of management. A corporation’s officers and board of
directors can retain management to operate the business on a continuing
basis.
Apart from the advantages, corporations (even closely held
corporations) are burdened with considerably more administrative matters
than a sole proprietorship or a partnership faces. These include furnishing
notices to stockholders, holding meetings, recording minutes showing
election of directors and officers, and filing annual reports with state
agencies. Because a corporation is a separate entity it must file federal and
state income tax returns. Its earnings are subject to taxes, and those
earnings that are distributed to its shareholders are again subject to tax. In
many cases, small corporations qualify for special treatment as “S
corporations” under the Internal Revenue Code. Perhaps it is not a major
problem for the large corporation, but a small business operating as a
corporation often finds it a financial burden to employ accountants and
lawyers to comply with laws and regulations.
Corporate Powers
A corporation’s powers are derived from its certificate of incorporation
subject to the constitution and statutes of the state of incorporation.
Stockholders may agree to amend the articles. The powers listed in the
corporation’s articles of incorporation are its express powers. A
corporation has implied powers to do those things reasonably necessary to
carry out its express powers. State legislatures have adopted special
provisions limiting the powers of particular corporations such as banks,
utilities, and insurance companies. A corporation that acts beyond its
powers is said to have committed ultra vires acts. The state attorney
general can bring a court action to enjoin such ultra vires acts and, if
necessary, to dissolve the corporation. Stockholders also have a standing to
challenge ultra vires acts in court actions.
Stockholders’ Rights
The management of a corporation is vested in its directors and officers.
They have a duty to the stockholders to act honestly and in good faith and
to avoid conflicts of interest. Stockholders do not participate in the
corporate management, but they do have the right to inspect the
corporation’s books and records when they do so in good faith and for
proper purposes. Most states require annual meetings of stockholders;
however, this is usually required by the corporate bylaws. Stockholders
receive notice of these annual meetings, and holders of the common stock
are entitled to vote for directors and for such major actions as mergers and
consolidations with other corporations. Those who own corporate stock
will be familiar with these annual notices that usually include a proxy form
with recommendations from the corporation’s board of directors. Not
infrequently today, groups of stockholders make some proposal for the
corporation to take some particular action, for example, to report on
employment of minorities. Most of these proposals fail because
stockholders making them usually own a very small percentage of stock.
CASE IN POINT
CONSUMER PROTECTION
The Act creates a right of action for a consumer who sustains damages
from breach of a written, statutory, or implied warranty—but first a
consumer must resort to an informal settlement procedure. A consumer
who prevails in an action is entitled to an award of a reasonable attorney’s
fee. Although the Act is silent on the issue of damages, it appears that state
law governs as to the measure of damages that may be awarded in actions
brought under the Act’s provisions.34
BANKRUPTCY
The U.S. Constitution (Article I, Section 8) grants Congress the power to
establish uniform bankruptcy laws. The Bankruptcy Act (Title 11 U.S.C.)
governs bankruptcy proceedings, which take place in federal bankruptcy
courts before judges appointed by the U.S. Courts of Appeals. Bankruptcy
laws are designed (1) to afford debtors whose liabilities exceed their assets
an opportunity to make a fresh start; and (2) to provide a fair method of
distributing the bankrupt debtor’s assets among creditors.
Bankruptcy proceedings are usually identified by the chapter of the
Bankruptcy Act under which they take place. In regular bankruptcy, called
a Chapter 7 proceeding, the individual or corporate debtor files a petition
itemizing all debts; however, certain businesses, for example, banks and
insurance companies, have to proceed under other federal laws. The filing
of the petition stays civil court actions against the debtor and the debtor’s
property. Under some circumstances, creditors can file an involuntary
petition against the debtor to secure an adjudication of whether a person is
bankrupt.
Creditors select a trustee who marshals the debtor’s property, liquidates
it, pays the expenses of the proceedings, and distributes the property
among the creditors according to priorities set by law. An individual
debtor has certain exemptions under state law; for example, in some states,
a debtor’s residence, life insurance, and personal property up to a certain
value may be exempt. Alternatively, under certain state laws a debtor may
choose to take advantage of similar federal exemptions. An honest debtor
can secure a discharge from debts through operation of the bankruptcy
law; however, certain debts, for example, alimony and child support, are
not subject to discharge.
Other forms of bankruptcy are available through federal law. Under a
Chapter 11 proceeding, often used by businesses, a reorganization plan is
formulated under which the debtor pays a certain portion of debts while
continuing in business. A Chapter 12 proceeding allows a debtor/family-
farmer or debtor/family-fisherman to continue farming or fishing; and a
Chapter 13 proceeding, also called a ‘wage earner’s plan’, enables
individuals with a regular income to develop a plan to repay all or part of
their debts. Finally, Chapter 9 may be available for a city that tries to
declare bankruptcy. In 2013, a federal judge stated that Detroit could enter
into bankruptcy, making it the largest city to ever do that. Other
municipalities that have declared bankruptcy in the last decade include
Stockton, California; Jefferson County, Alabama; and Central Falls, Rhode
Island.
CONCLUSION
Calamari, John D., and Joseph M. Perillo, The Law of Contracts (West
1998).
Helewitz, Jeffrey A., Basic Contract Law for Paralegals (5th ed., Aspen
Publishers 2007).
Hillman, Robert A., Principles of Contract Law (West 2004).
Miller, Arthur S., The Supreme Court and American Capitalism (Free
Press 1968).
Rohwer, Claude D., and Gordon D. Schaber, Contracts in a Nutshell (7th
ed., West 2010).
Siegan, Bernard H., Economic Liberties and the Constitution (University
of Chicago Press 1980).
Wright, Benjamin F., The Contract Clause of the Constitution (Harvard
University Press 1938).
KEY TERMS
ENDNOTES
CHAPTER OUTLINE
Introduction
Marriage
Divorce and Annulment
Child Custody, Support, and Paternity
Adoption
Termination of Parental Rights
Guardianship
Reproductive Decisions
Surrogate Motherhood
Decisions Regarding Medical Treatment
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
MARRIAGE
Marriage is the social institution that forms the basis of the family unit. In
the western world, it has both secular and religious roots. In the United
States, marriage is a religious rite for many, but for all, it is a civil contract
formed under the laws of the state where it takes place, and it is governed
by law. Thus, unlike contracts discussed in the preceding chapter, marriage
results in a legal “status” of the parties. The state has a definite interest in
regulating the institution of marriage and prescribes certain requirements
for its formation and dissolution.
Same-Sex Marriage
For much of the United States’ history, marriage was a covenant between a
male and a female. Proponents of same-sex marriage, though, argue that
the traditional limitation of marriage to heterosexual couples runs counter
to the notion of equality before the law. In the 1990s, litigants began to
challenge the constitutionality of state laws limiting marriage to
heterosexual couples. Their first major victory came in Hawaii in 1993,
when that state’s supreme court ruled that the state must demonstrate a
compelling interest in order to restrict marriage to a male and a female.8
Opponents of same-sex marriage, however, feared that if Hawaii were to
license same-sex unions, other states would be required to do so, as well,
under the Full Faith and Credit Clause of the U.S. Constitution.9
Accordingly, over 30 states (including Hawaii) moved quickly to enact
bans on same-sex marriage,10 and Congress acted swiftly by adopting the
Defense of Marriage Act (DOMA) of 1996, which sought to relieve states
of the obligation to recognize same-sex marriages. It provided that:
No State, territory, or possession of the United States, or Indian tribe, shall be required to
give effect to any public act, record, or judicial proceeding of any other State, territory,
possession, or tribe respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory, possession, or tribe, or a
right or claim arising from such relationship.11
Prenuptial Agreements
The rising incidence of divorce, the fact that multiple marriages during
one’s lifetime are no longer uncommon, and the right of each spouse to
separately accumulate property have caused an increase in the use of
prenuptial agreements. A prenuptial agreement is a contract entered into
by persons before they marry. The typical agreement stipulates the
property rights of each spouse during marriage, upon death, and in the
event of divorce. These agreements are more common where the parties’
assets are disproportionate. Wealthy individuals often rely on such
agreements to protect their substantial assets from transfer to a spouse.
Older couples that are marrying for a second time, especially those who
have children by their previous marriages and a desire to conserve their
respective estates for their own children and grandchildren, may find a
prenuptial agreement to be an attractive option.
If a spouse attacks the validity of a prenuptial agreement, courts often
inquire as to whether the parties made a full disclosure of each other’s
financial resources before the agreement was entered into and whether the
agreement meets basic standards of fairness. The issue of coercion
sometimes arises, as well. For example, coercion may be found where just
before a wedding ceremony, a wealthy male presents his bride with an
agreement providing minimal rights. Courts tend to look more favorably
on enforcement of a prenuptial agreement if, before the agreement was
signed, each party made a full and fair disclosure of assets well in advance
of the marriage ceremony, and each party reviewed the agreement with
separate legal counsel.
Although not nearly as prevalent as prenuptial contracts, post-nuptial
agreements are sometimes used where parties did not anticipate the need
for a prenuptial agreement. Courts tend to scrutinize such an agreement to
determine if it was fair when entered into and that it was not signed under
the threat of a divorce. When a divorce follows, courts sometimes insist on
determining if the agreement is fair and just as of the time of a divorce. As
in the case of a prenuptial agreement, full disclosure of financial resources
and independent legal counsel bolster the prospect that a court will look
favorably upon enforcing of a post-nuptial agreement.
Annulment
An annulment is a judicial decree that no valid marriage existed. It is
granted only on petition of a party who was unaware of an impediment to a
valid marriage. These impediments might include a party’s existing
marriage, a party’s mental incapacity, a party’s physical incapacity to
consummate the marriage, or the marriage’s being the result of fraud or
intoxication.
In earlier years, it was difficult to obtain a divorce, and a stigma was
attached to being divorced. Thus, annulments were sought far more
frequently than they are today. Although annulments are infrequent today
in the civil courts, they are more common in the tribunals of the Roman
Catholic Church, for if the church finds that a marriage is invalid from a
canonical standpoint, under certain circumstances it will grant an
annulment. While the annulment by the church has no legal effect, canon
law allows a person whose marriage has been annulled to remarry within
the church. Of course, before remarrying, a person whose marriage a
religious tribunal has annulled must still obtain a decree of divorce from a
civil court.
Legal Separation
When a marriage becomes an intolerable burden, some spouses voluntarily
decide to live apart from one another. This does not alter the spouses’ legal
responsibilities to one another or to their children. In other instances, a
husband and wife who agree to separate may opt for a more formal legal
separation by entering into an agreement to live apart to await a resolution
of problems that led to their separation or to await making a considered
judgment of whether to dissolve their marriage. A formal separation
agreement may simply provide for an agreement to live separately without
interference from one another. But in many instances, the parties effectuate
a settlement of their property rights and the custody of their children. Such
an agreement is often a prelude to dissolving the marriage and usually
contains a stipulation that should the marriage be dissolved, and subject to
the approval of the court, the agreement is to become a part of any final
judgment of divorce or dissolution. As in the case with prenuptial and
post-nuptial agreements, separation agreements that settle support and
custodial responsibilities and property rights can have long-lasting effects;
thus, they should only be entered into advisedly, after careful review by
each party’s lawyer.
Separate Maintenance
Many states have statutory provisions regarding the award of what is
sometimes known as separate maintenance, or allowing alimony without
dissolution of marriage. A wife who is living apart from her husband and
who is in need of support can file a petition for separate maintenance in
some states. Separate maintenance proceedings were more common when
states granted divorce based on fault rather than under modern no-fault
dissolution-of-marriage laws. Sometimes this procedure is used as a way
to provide a “cooling-off period” or is chosen because of religious scruples
against divorce. The proceedings contemplate an award of alimony and
support to a wife based on the economic circumstances of the husband and
wife and may allow a parent, sometimes referred to as a custodial parent or
one with shared responsibility, the right to the exclusive use and
occupancy of the marital home. Such proceedings, however, do not
ordinarily contemplate a resolution of the parties’ interests in property
acquired during the marriage. In some states, the court will award a
reasonable attorney’s fee to a party awarded separate maintenance who can
demonstrate a need for such assistance.
Divorce
Before 1857, the English ecclesiastical court had jurisdiction over actions
relating to marriage. These courts did not grant absolute divorces; rather,
they could grant an annulment or a divorce a mensa et thoro (a divorce
from bed and board). For a wife to obtain a divorce from bed and board,
she had to demonstrate that her husband was at fault and that she was
entitled to live separately and receive alimony from him. This is similar to
the separate maintenance proceedings discussed in the preceding topic. In
the United States, the idea of ecclesiastical courts was unacceptable to the
new settlers, and jurisdiction over divorce and other domestic relations
matters was vested in chancery courts.
Historically, a party seeking a divorce had to file a petition in the state
that was considered the matrimonial domicile of the parties. As a result
of a series of decisions from the U.S. Supreme Court, after 1942 it was no
longer necessary that a divorce be granted in the state of the last
matrimonial domicile. Rather, a petitioner can establish residence “in good
faith” in the state where the petitioner seeks to obtain a divorce. Under the
fault concept of divorce, this became important because the grounds for
divorce varied greatly among the states. As an example, for many years,
New York would grant divorce only on the ground of adultery. Thus, there
was an incentive for a party seeking a divorce to apply for it in a state with
liberal grounds for divorce and where residency could be established in a
relatively short time. This brought many petitioners to establish residence
and to seek a divorce in Florida, in Nevada, or in another state that had
minimal residency requirements and a variety of grounds for divorce. A
spouse who leaves the matrimonial domicile and obtains a divorce decree
in another state, however, may still be subject to further proceedings
concerning alimony, support, and custody rights in the state where the
other spouse remained. This depends on various factors, one of which is
whether the respondent spouse appears in the case in person or through
counsel.
Alimony
Alimony is the allowance to a spouse imposed by a court that grants a
divorce. The concept of alimony stems from the English common law
requirement that a husband must support his wife during her lifetime or
until she remarries. A wife who was guilty of marital misconduct was not
awarded alimony. In making awards of alimony, American courts
generally required the husband to make weekly or monthly payments.
Courts articulated many factors to be considered in determining the
amount of alimony to be awarded. These included the ages and stations in
life of the parties, their physical and mental health, the duration of the
marriage, the wife’s needs, and the husband’s ability to pay. Often, the
court’s judgment was affected to some extent by which party was found to
be at “fault” in the marriage. In some states, the legislature provided that
no alimony could be awarded to a wife who was guilty of adultery.
In the United States, legislatures and courts characteristically viewed
alimony much as did the common law, that is, as an obligation of the
husband and an entitlement to a wife. This view was unacceptable to the
U.S. Supreme Court, which in 1979 held that alimony statutes that provide
for awards only to wives violated the Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitution.27 Thereafter, it was
necessary for states to either amend their statutes to provide for awards to
both the husband and the wife or, at least, that courts apply alimony
statutes on a sex-neutral basis. By this time, the concept of alimony had
undergone considerable change and courts tended to award permanent
alimony primarily to spouses of long-term marriages or in those instances
where disabling injuries prevented a spouse from achieving self-support.
Usually, the scenario that would justify an award of permanent alimony
would be where an older wife had fulfilled the traditional role of mother
and homemaker and had not enjoyed the opportunity to pursue a career on
her own—and thus was not capable of sustaining herself.
The Uniform Marriage and Divorce Act (UMDA) was approved by the
National Conference of Commissioners on Uniform State Laws in 1970
and has been adopted in nine states. Even where the UMDA has not been
adopted, courts refer to the criteria it offers for determining whether to
award a party “maintenance,” a term that the UMDA uses instead of
alimony.28 As amended in 1973, §308 of the UMDA provides for
consideration of the following relevant factors when a court awards
maintenance to a spouse:
(1) The financial resources of the party seeking maintenance,
including marital property apportioned to him, his ability to meet
his needs independently, and the extent to which a provision for
support of a child living with the party includes a sum for the
party as custodian;
(2) The time necessary to acquire sufficient education or training to
enable the party seeking maintenance to find appropriate
employment;
(3) The standard of living established during the marriage;
(4) The duration of the marriage;
(5) The age and physical and emotional condition of the spouse
seeking maintenance; and
(6) The ability of the spouse from whom maintenance is sought to
meet his needs while meeting those of the spouse seeking
maintenance.
The above criteria seem to read like a mental checklist of the factors that
judges traditionally consider, even absent statutory criteria.
The advent of no-fault divorce brought with it new perspectives on
alimony awards. During the 1970s, the concept of rehabilitative alimony
emerged through statutory enactments. Rehabilitative alimony is designed
to provide short-term alimony and is awarded based on the time required
for a divorced spouse to be educated or trained to become self-sufficient.
The trial court fixes the amount of payments and a termination date for
payments based on the proposed plan of rehabilitation for the recipient.
The court also will consider a modification of the payments before the
termination date if the recipient can show a justification. Trial judges are
given broad discretion in awarding rehabilitative alimony, and absent an
abuse of that discretion appellate courts are very reluctant to vacate or
modify such awards. Traditionally, alimony terminated upon a former
spouse’s remarriage, but courts differ on whether remarriage should
preclude instead of terminate an obligated spouse’s liability for
rehabilitative alimony. A strong argument can be made to have the
payments continue until that rehabilitation has been accomplished.
Despite the tendency to award rehabilitative alimony, there are still
instances where an award of permanent alimony serves an important role
in dissolution-of-marriage proceedings. Consider, for example, dissolution
of a long-term marriage. The male spouse is fifty-five years of age and
possesses no marketable skills or talents and suffers from health problems.
The parties have few marital assets, but the wife is gainfully employed at a
good salary. Such a male spouse presents no actual and little potential
capacity for self-support to enable him to live in the standard he enjoyed
while married. A husband in those circumstances might present a court
with a compelling case for an award of permanent alimony.
A spouse sometimes requests that the alimony be paid as a lump sum
rather than in periodic installments, and the lump sum may consist of
assets other than cash. Where a wife establishes entitlement to permanent
alimony but the husband has limited resources and the wife requires the
marital home as a place to raise the parties’ minor children, courts
sometimes award a husband’s interest in the marital home place to the wife
as lump sum alimony. In other instances, the wife may be given the right
of occupancy of the home place until the youngest child attains majority,
whereupon the home place might be sold and the proceeds distributed
according to an order of the court.
Attorney’s Fees
In many states, statutes allow courts to award attorney’s fees to a spouse
in a marital action “to level the playing field” if the requesting spouse can
show an inability to retain counsel or where the other spouse has a greater
ability to pay litigation expenses. Courts may sometimes award temporary
attorney’s fees to a spouse who requires such assistance to conduct
litigation. Where the income flow of the parties is disproportionate, courts
often award attorney’s fees at final hearing incident to the equitable
distribution of property.
CASE IN POINT
Paternity
The presumption of legitimacy of a child is one of the strongest
presumptions in law. A husband who contests paternity of a child born
during his marriage must raise the issue promptly and not after dissolution
of the marriage. In general, the following principles apply:
■ A child born in wedlock is presumed legitimate. A husband who had
access to his wife is presumed to be the father of her child.
■ A child born during marriage is legitimate, even if conceived by the
parties before marriage.
■ A child born within the normal gestation period after the death of a
husband is presumed to be the legitimate child of the deceased husband.
Under the common law, a putative father had no duty to support an
illegitimate child. Today, in some states, statutes affix the responsibility of
support on a male who acknowledges paternity. All states have laws that
provide for judicial proceedings to determine paternity of an illegitimate
child and to compel the father to contribute to the child’s support. Any
woman who is pregnant or who has delivered a child has standing to bring
suit to determine paternity of her child. DNA analysis offers a reliable way
to determine the biological parent, although older methods have included
Human Leukocyte Antigen (HLA) tests. Putative fathers who contest their
paternity often attack the reliability of these tests and raise as defenses
impotency, sterility, and lack of access to the mother. In early years, a
putative father might raise the issue of a female plaintiff’s promiscuity; but
today, attacking the mother’s morals would likely fail as a defense.
Additionally, the Fourteenth Amendment to the U.S. Constitution
forbids states to discriminate between legitimate and illegitimate children
in granting the right to parental support.50 Further, court decisions have
held that the mother of an illegitimate child cannot contract away that
child’s right to support from the father. In some states, a government
agency that provides support even has standing to bring a paternity suit in
the mother’s name to determine a putative father’s liability for support. In
recent decades, many legislatures also have revised their statutes of
limitations to cause the time for an illegitimate child to bring suit to
commence when a child attains majority.
ADOPTION
CASE IN POINT
GUARDIANSHIP
A legal guardian is a person, natural or corporate, appointed by a court to
act on behalf of another (the ward) because of the latter’s minority or
incapacity. A guardian may act as guardian of the ward’s person or
property, or both. Sometimes, a guardian of the property is referred to as a
conservator.
Parents are considered the natural guardians of their minor children.
Accordingly, parents may make decisions concerning the welfare of the
child and act on behalf of the child in regard to modest amounts of assets.
However, if neither parent is living or if the assets of the child exceed state
allowances, a guardian is required. Guardianship of a minor ends upon the
minor’s reaching the age of majority. Often, the appointment of a guardian
of the property of a minor may be averted by giving property to a minor
under a custodial or trust arrangement.
If an adult becomes mentally or physically incapable of handling his or
her affairs and has not established the means for the management of his or
her finances or the making of personal and medical decisions, then a
guardianship may be required. In order to have a guardian of an adult
appointed, the adult must be deemed incompetent or incapacitated by a
court. This is accomplished by an interested person’s petitioning the court
for such a decree. In these cases, the court usually appoints a committee,
often composed of three individuals, including a physician, to examine the
individual.
Many states also require the appointment of an attorney to represent the
allegedly incapacitated individual during the proceedings. After receiving
reports and hearing testimony, the court makes a finding as to the
individual’s capacity. If the court finds that the person is incapacitated, it
appoints a guardian, which may be a relative, a professional guardian, or a
trust company. The guardian of a person who is a minor or an
incapacitated person must oversee the welfare of the ward, including
making medical and residential decisions, and typically must file an annual
report concerning the ward’s personal well-being. A guardian of a ward’s
property must manage and administer the ward’s assets, file accountings
and reports, and obtain court approval, if required by state law, to act on
the ward’s behalf to sell property owned by the ward. The guardian of an
incapacitated ward also might be mandated to have the ward examined
periodically to determine if any of the ward’s rights should be restored.
The court may even require the guardian to post a bond before taking
charge of the ward’s assets. The cost of the bond, court costs, and
attorney’s fees can make a guardianship quite expensive. Frequently,
however, guardianship of an incapacitated person may be avoided through
proper estate planning if the person, while still competent, executes a
durable power of attorney and an advance directive for medical
decisions.
REPRODUCTIVE DECISIONS
Reproductive rights have emerged over the years largely through decisions
of the United States Supreme Court. These decisions concern the right to
procreate, the right to use contraceptives, and the right to obtain an
abortion.
SIDEBAR
STENBERG v. CARHART
530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000)
Justice Breyer delivered the opinion of the Court.
“We again consider the right to an abortion. We understand the
controversial nature of the problem. Millions of Americans believe that
life begins at conception and consequently that an abortion is akin to
causing the death of an innocent child; they recoil at the thought of a
law that would permit it. Other millions fear that a law that forbids
abortion would condemn many American women to lives that lack
dignity, depriving them of equal liberty and leading those with least
resources to undergo illegal abortions with the attendant risks of death
and suffering. Taking account of these virtually irreconcilable points of
view, aware that constitutional law must govern a society whose
different members sincerely hold directly opposing views, and
considering the matter in light of the Constitution’s guarantees of
fundamental individual liberty, this Court, in the course of a generation,
has determined and then predetermined that the Constitution offers
basic protection to the woman’s right to choose.…”
SURROGATE MOTHERHOOD
CASE IN POINT
THE CASE OF THE FROZEN EMBRYOS
Davis v. Davis
Tennessee Supreme Court
842 S.W.2d 588 (Tenn. 1992)
Junior Davis and Mary Sue Davis married in 1980; however, the wife was
unable to become pregnant. Several years later, the couple signed up for an
in vitro fertilization program at a clinic in Knoxville. There was no
agreement specifying what disposition should be made of any unused
embryos that might result from the cryopreservation process, and no
Tennessee statute governed such disposition. In 1989, the husband sought
a divorce, and the wife sought custody of the frozen pre-embryos. The
county court granted the divorce and awarded custody of the frozen pre-
embryos to the wife. The husband appealed, and the Court of Appeals
reversed, finding that the husband had a constitutionally protected right not
to beget a child where no pregnancy had taken place. The Court of
Appeals remanded the case to the county court with directions that the
parties have joint control over the embryos and equal voice in their
disposition.
The Tennessee Supreme Court granted review, believing the Court of
Appeals directions to the lower court were insufficient. As the litigation
progressed, Mrs. Davis remarried and no longer wanted the embryos for
herself, but she desired the right to donate them. The court concluded that
the embryos were neither persons nor property; rather, they were in a
category that entitled them to special respect because of their potential for
human life. The court found that Mr. Davis’s constitutional right to avoid
procreation overrode the former wife’s right to keep the embryos or to
donate them to others. The court directed that the clinic could proceed to
dispose of them in a customary manner.
One of the serious aspects of family life is the necessity to make decisions
concerning medical treatments. Competent adults have the right to make
decisions regarding their own medical treatment, and this includes the
right to refuse treatment. A competent adult can also make advance
directives addressing medical care through use of a living will, use of a
durable power of attorney, and appointment of surrogates.
A spouse generally has the authority to make medical decisions for his
or her spouse who is incompetent or unable to make decisions about
medical treatments. Parents and guardians also have the right and
obligation to make health care decisions for their children or their wards.
Further, state statutes authorize physicians and hospitals to render needed
medical treatments in an emergency when the parents or guardians are
unavailable. There are, however, controversial issues concerning the
requirement of parental consent for a minor female to obtain an abortion,
and there are variations in requirements that pertain to the removal of life-
sustaining support systems of terminally ill children.
Since the 1970s, considerably more attention has been given to matters
surrounding health care, particularly those involving the discontinuance of
life-sustaining measures. As a result, there is a movement in legislative
bodies and courts to remove the issue of extraordinary life-sustaining
measures from the courts and to permit the withdrawal or withholding of
life-sustaining treatment for terminally ill patients at the direction of a
surrogate based on competent medical advice.
Legislatures and courts in states faced with the issue of whether or not
artificial nutrition and hydration may be withdrawn or withheld have
responded in various ways. Some state statutes permit the refusal or
removal of some forms of life support but exclude those related to
nutrition and hydration. Others allow the withdrawal or withholding of
nutrition and hydration tubal feedings where the patient is terminally ill.
Courts themselves have arrived at different conclusions concerning the
withdrawal or withholding of nutrition and hydration. In 1989, the
Supreme Court of the United States provided some guidance with its
ruling in Cruzan v. Director, Missouri Health Department, which allowed
a state to require “clear and convincing evidence” of a patient’s wishes
before medical officials terminated life support. As a result, many
physicians and hospitals recommend that patients express their preferences
in these matters through an advance care directive.
Although competent adults may refuse medical treatment on religious
grounds, even if the refusal results in death, courts take a different view in
respect to children. This sometimes poses problems where parents choose
to rely on spiritual power to achieve healing or when they deny blood
transfusions for children based on scripture. On this subject, the Supreme
Court, in 1944, recognized that “parents may be free to become martyrs
themselves. But it does not follow that they are free in identical
circumstances to make martyrs of their children before they have reached
the age of full legal discretion when they can make that choice for
themselves.” 83
CONCLUSION
Family law touches each person’s most intimate relationships. It embraces
us from birth to death, with decisions and relationships in between. For
many of us, family law regulates marriage—and unfortunately, in some
instances, divorce, with its attendant problems of alimony, property
division, and custody disputes. Even when we are not involved personally,
laws and court decisions concerning the family shape the society in which
we live. At times, attitudes toward family law seem paradoxical: we insist
on privacy and personal autonomy in our interpersonal relationships, yet
we demand that regulatory authorities require education and support of
children and that they protect children and cohabitants from abuse.
As we speak, families are undergoing dramatic cultural changes, and
laws must adjust to the factors bringing about such changes, while
retaining the core concepts of family relationships. Our mobile,
technologically-oriented society increasingly is characterized by diversity
and pluralism and is less bound by traditional mores of family ties and the
constraints of institutional religion. Today, the great unifying force in the
United States is the law. Nowhere is this more evident than in family law.
After studying this chapter, a student must surely realize how family law
touches everyone and recognize the dynamic changes this area of the law
has undergone since the last half of the twentieth century. Marriage has a
firm secular and religious basis in the family unit. Although contractual, it
results in a definite legal status of the parties. The legal obligations of the
parties can be modified, to some extent, by prenuptial agreement. Today,
the traditional concept of marriage as being an institution between an adult
male and female is being challenged, with some states allowing same-sex
individuals to enter civil unions—which, from a civil law standpoint,
provide most of the attributes of marriage—and others states actually
permitting the full benefits of same-sex marriage.
The process of dissolving a marriage also has undergone dramatic
changes. In earlier years, laws severely restricted divorce; later, states
allowed statutory grounds for divorce; and now, the no-fault concept
allows dissolution of an irretrievably broken marriage. With the
educational, economic, and social advances of women, concepts of
alimony, child support, custody, and visitation rights also have seen
considerable change. Except in long-term marriages, courts today tend to
limit alimony to that necessary to rehabilitate a divorced spouse. The
emphasis is now on a shared approach in resolving child custody, support,
and visitation issues. Where divorcing parties cannot negotiate a fair and
reasonable settlement of their property interests, courts today place less
emphasis on permanent alimony and greater emphasis on ensuring an
equitable distribution of marital and non-marital property. Shared parental
responsibility is replacing the old concept of child custody and now is
considered on a more gender-neutral basis. Finally, there is increased
enforcement of child support obligations through interstate compacts and
federal government assistance.
With the increasing divorced rate, adoption can solve many social
problems in families. Many adoptions are by stepparents, although
agencies and private placements play a significant role. One controversial
issue is whether homosexual couples should be allowed to adopt children.
In any adoption, where the consent of the biological parents of the child is
not secured on a voluntary and knowing basis, the legal termination of
parental rights must first be accomplished.
In some instances, it is necessary to secure the court appointment of a
guardian for a minor or a minor’s property, or guardianship for a person
adjudged by a court to be physically or mentally incapable of handling his
or her property.
After its evolving decisions on sexual privacy, in 1973 the Supreme
Court issued its landmark abortion rights decision in Roe v. Wade. Today,
its basic decision on a woman’s reproductive rights appears entrenched;
however, nuances continue to emerge, with seemingly irreconcilable views
pitted against one another in discussion over a woman’s liberty interest in
deciding whether to continue a pregnancy.
Advances in medical technology also have brought additional new
issues of family law to the forefront. Three prominent ones are (1)
surrogate motherhood and its consequences to all parties involved; (2) an
individual’s right to make decisions concerning his or her medical
treatment; and (3) the right of surrogates to substitute their judgment,
where necessary, in making judgments whether to terminate life support
systems of terminally ill patients.
KEY TERMS
abortion
adoptive parents
advance directive for medical decisions
advance directives
agency adoption
alimony
annulment
artificial insemination
attorney’s fees
best interests of the child test
biological parents
canon law
ceremonial marriages
child snatching
child support
child support requirements
child-out-of-wedlock
children of “tender years”
civil unions
common law marriages
community property
community property states
conservator
consortium
contempt of court
contractual status
custodial parent
dissolution of a marriage
divorce
divorce a mensa et thoro
domestic partnership
durable power of attorney
emancipation acts
equitable distribution
extraordinary life-sustaining measures
fault concept
foster care
garnishment
gestational surrogacy
grandparents’ visitation
illegitimate child
in vitro fertilization
interstate abduction
interstate disputes concerning child custody
invidious discrimination
irretrievably broken
joint custody
legal guardian
legal separation
life support systems
living will
lump sum alimony
marital property
marriage
matrimonial domicile
mediation
modification of custody
no-fault dissolution of marriage
parents’ right of privacy
paternity
permanent alimony
post-nuptial agreements
pre-embryo
prenuptial agreements
primary physical residence
private placement adoption
property settlement agreements
putative father
reciprocal enforcement of support obligations
rehabilitative alimony
reproductive technology
residence requirements
right of visitation
right to privacy
same-sex marriages
separate maintenance
sex-neutral basis
shared parental responsibility
special equity
stepparent adoption
substituted judgment
surrogate
surrogate motherhood
termination of parental rights
traditional surrogacy
unity concept of marriage
ward
ENDNOTES
1. 98 U.S. 145, 25 L. Ed. 244; 8 Otto 145 (1878).
2. Md. Code Ann., Fam. Law §2-301.
3. Some cities that offer domestic partnerships include: Missoula, Montana; Phoenix, Arizona;
Milwaukee, Wisconsin; Detroit, Michigan; Albuquerque, New Mexico.
4. A 2013 study suggested that 61% of Fortune 500 companies provide benefits to same-sex
couples; see Blake Ellis, “Record Number of U.S. Companies Offering Same-Sex Benefits,”
CNN Money, December 9, 2013; available at: http://money.cnn.com/2013/12/09/pf/lgbt-
corporate-equality/.
5. Kerrigan v. Commissioner of Pub. Health, 289 Conn. 135 (Conn. 2008).
6. As of September 2014, these states were Colorado and Nevada.
7. See, e.g., Cal. Fam. Code §297 (domestic partnership status includes individuals of the same
sex or requires that at least one party be over age sixty-two); see also N.J. Stat. §26:8A-4
(domestic partnerships are limited to individuals who are of the same sex or who are both
sixty-two years of age or older).
8. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).
9. U.S. Const. art. IV, §1.
10. Hawaii’s ban was instituted in March 2000, before the Hawaii Supreme Court decreed that a
same-sex marriage license be issued; the state’s voters, by a 61 percent to 39 percent margin,
amended the state constitution to allow the state legislature to ban same-sex marriages. See:
Haw. Const. art. 1, §23 (“The legislature shall have the power to reserve marriage to opposite-
sex couples.”).
11. 28 U.S.C. §1738C.
12. Baker v. State, 744 A.2d 864 (Vt. 2000).
13. 798 N.E.2d 941 (Mass. 2003).
14. In re Marriage Cases, 183 P.3d 384, 401 (Cal. 2008).
15. Ballot initiatives allow citizens to place a proposed law on the ballot during a general election
if a predetermined amount of signatures are gathered on a petition bearing the text of the
proposed law. At the election, if a majority vote “yes” in favor of the proposal becoming a
law, it shall become a law. Similarly, citizens also can utilize a referendum, whereby they
repeal an existing law through a similar procedure.
16. The 9th circuit case is Perry v. Brown (2012), while the district case is Perry v.
Schwarzanegger, 704 F. Supp 2d. 921 (2010).
17. Hollingsworth v. Perry, 570 U.S. ______, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (2013).
18. United States v. Windsor, 570 U.S. ______, 133 S. Ct. 2675,186 L.Ed.2d 808 (2013).
19. Id., slip op. at p.
20. The marriage in Windsor actually occurred in Canada, but it also was recognized by the state
of New York; thus, the Supreme Court’s decision allows for federal benefits when any state
recognizes a marriage as valid, regardless of where the marriage itself took place.
21. Referendum votes in all three states followed the passage of laws that legalized same-sex
marriage.
22. Joan Biskupic, “Two Moms, A Baby, and a Legal First for U.S. Gay Marriage,” Reuters, April
9, 2014; available at: http://www.reuters.com/article/2014/04/09/us-usa-courts-
samesexmarriage-idUSBREA380B420140409.
23. See, e.g., Bishop, et al. v. United States of America, et al. (2014), U.S. District Court for the
Northern District of Oklahoma; opinion available at:
http://www.oknd.uscourts.gov/docs/d50f87b8-eebd-49bf-a18a-cc6e8acda53e/04cv848.pdf.
24. See Bostic v. Rainey, 970 F. Supp. 2d 456, U.S. District Court for the Eastern District of
Virginia; upheld by U.S. Court of Appeals for the 4th Circuit. Strict scrutiny also was used by
the U.S. Court of Appeals for the 10th Circuit in upholding a Utah district court’s decision to
overturn that state’s ban on same-sex marriage; see Kitchen et al. v. Herbert and Swenson,
available at: https://www.ca10.uscourts.gov/opinions/13/13-4178.pdf.
25. See, e.g., Id., and cases referenced in note 23.
26. In re Marriage of Van Hook, 195 Cal. Rptr. 541 (Cal. App. 1983).
27. Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979).
28. Uniform Marriage and Divorce Act, U.L.A. §308 (1998).
29. 23 Pa. Cons. Stat. Ann. §3502.
30. 5 U.S.C. §8345(j).
31. McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981).
32. 10 U.S.C. §1408.
33. N.Y. Dom. Rel. Law §236, pt. B.
34. McGowan v. McGowan, 535 N.Y.S.2d 990 (N.Y. App. Div. 1988). (Wife’s teaching
certificate, conferred as result of education program completed prior to marriage, was not
marital property, but wife’s master’s degree, awarded based on completion of study
undertaken during marriage, was marital property subject to equitable distribution.)
35. N.Y. Dom. Rel. Law §236, pt. B.
36. Berry v. Berry, 658 A.2d 1097 (Me. 1995).
37. The Supreme Court also noted that the race of a parent’s boyfriend or girlfriend cannot play a
role in custody decisions. See Palmore v. Sidoti, 466 U.S. 429, 80 L. Ed. 2d 421, 104 S. Ct.
1879 (1984).
38. Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971).
39. See, e.g., In re Marriage of Dawson, 214 N.W.2d 131 (Iowa 1974).
40. See Doane v. Doane, 330 So. 2d 753 (Fla. App. 1976).
41. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972).
42. Phillips v. Horlander, 535 S.W.2d 72 (Ky. 1976).
43. In re Custody of Smith, 969 P.2d 21 (Wash. 1998).
44. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
45. 120 S. Ct. at 2061-2064.
46. 28 U.S.C. §1738A.
47. 42 U.S.C. §653.
48. 18 U.S.C. §228.
49. United States v. Ballek, 170 F.3d 871 (9th Cir. 1999).
50. Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973).
51. Matter of Adoption of Child by J.M.G., 632 A.2d 550 (N.J. 1993).
52. 310 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).
53. Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992).
54. Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).
55. A “partial birth abortion” is a technique in which a fetus is removed intact from a woman’s
cervix. The term itself was coined by the National Right to Life Committee.
56. Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972).
57. Webster v. Reproductive Health Servs., 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 429
(1989).
58. Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 673 (1992).
59. Planned Parenthood of the Heartland v. Heineman, 724 F. Supp. 2d 1025 (2010). This
decision was upheld by the United States 8th Circuit Court of Appeals in 2011.
60. Planned Parenthood Minnesota v. Rounds, 650 F. Supp. 2d 972 (2011).
61. The Oklahoma Supreme Court struck down a mandatory ultrasound law in December 2012,
and the Supreme Court of the United States announced its refusal to hear an appeal in
November 2013.
62. Stuart v. Loomis (2014), U.S. District Court for the Middle District of North Carolina; opinion
available at: http://dig.abclocal.go.com/wtvd/docs/utrasound_rluling_011714.pdf.
63. Jackson Women’s Health Organization v. Currier, et al. (2014), U.S. Court of Appeals for the
5th Circuit; opinion available at: http://www.ca5.uscourts.gov/opinions%5C pub%5C13/13-
60599-CV0.pdf.
64. Planned Parenthood of Wisconsin, Inc., et al. v. Van Hollen, et al. (2013), U.S. District Court
for the Western District of Wisconsin; opinion available at:
http://www.aclu.org/files/assets/81__opinion__order.pdf; in 2014, the Supreme Court of the
United States refused to hear an appeal.
65. Planned Parenthood Southeast, Inc. v. Strange (2014), U.S. District Court for the Middle
District of Alabama; opinion available at: https://ecf.almd.uscourts.gov/cgi-bin/show_
public_doc?2013cv0405-238.
66. Planned Parenthood of Greater Texas Surgical Health Services, et al. v. Abbott, et al. (2014),
U.S. Court of Appeals for the 5th Circuit; opinion available at:
http://www.ca5.uscourts.gov/opinions%5Cpub%5C13/13-51008-CV1.pdf.
67. Jackson Women’s Health Organization v. Currier, et al. (2014), U.S. Court of Appeals for the
5th Circuit; opinion available at: http://www.ca5.uscourts.gov/opinions%5C pub%5C13/13-
60599-CV0.pdf; quote drawn from p. 8.
68. McCormack v. Hiedeman, 900 F. Supp.2d 1128 (2013).
69. Isaacson, et al. v. Horne, et al. 716 F.3d 1213 (2013). In January 2014, the Supreme Court of
the United States refused to hear an appeal.
70. Edwards v. Beck (2014), U.S. District Court for the Eastern District of Arkansas; opinion
available at: http://www.acluar kansas.org/contentitemdocuments/274.pdf.
71. MKB Management Corp., et al. v. Birch Burdick, 954 F. Supp.2d 900 (2013).
72. Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000).
73. Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007).
74. See In re Baby M., 537 A.2d 1227 (N.J. 1988), on remand, 542 A.2d 52 (N.J. Super. 1988).
75. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).
76. In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. App. 1998).
77. Lisa L. Behm, “Legal, Moral, & International Perspectives on Surrogate Motherhood: The Call
for a Uniform Regulatory Scheme in the United States,” 2 DePaul J. Health Care L. 557
(Spring 1999).
78. In re Quinlan, 355 A.2d 647 (N.J. 1976).
79. See In re Barry, 445 So.2d 364 (Fla. App. 1984); In re L.H.R., 321 S.E.2d 716 (Ga. 1984).
80. See Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417 (Mass. 1977).
81. Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Cal. App. 1986).
82. John F. Kennedy Meml. Hosp. v. Bludworth, 452 So.2d 921 926 (Fla. 1984).
83. Prince v. Massachusetts, 321 U.S. 158, 170, 64 S. Ct. 438, 444, 88 L. Ed. 645, 655 (1944).
■ Chapter 9: Civil Procedure, Evidence, and the Appellate Process
■ Chapter 10: Criminal Procedure
LEARNING OBJECTIVES
CHAPTER OUTLINE
Introduction
Civil Procedure
The Rules of Evidence
Appellate Procedure
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
Civil lawsuits are brought in state and federal courts to redress injuries or
to vindicate legal rights. Civil suits stem from a variety of causes,
including personal injuries, conflicts over ownership of property,
contractual disputes, and various business relationships. The civil
jurisdiction of state courts is also invoked to determine whether a party is
incompetent, to supervise guardianships of minors and incompetent
persons, and to resolve issues in domestic relations cases, such as
dissolution of marriage and custody of children.
Courts determine outcomes in civil suits based on relevant legal
principles and precedents. The rules of civil procedure and evidence are
the vehicles through which courts decide these cases in a fair and orderly
manner.
Civil procedure embraces the processes by which claims and defenses
are presented to and adjudicated by trial courts. It includes the pretrial,
trial, and post-trial phases of civil litigation.
The procedures governing civil disputes, extremely complex and
protracted at common law, have been greatly simplified and streamlined
through the adoption of modern statutes and rules of court procedure. In
the federal courts, civil procedure is governed by rules promulgated by the
United States Supreme Court under authority delegated by Congress.
Similarly, state legislatures have authorized state courts to establish rules
of civil procedure, replacing what was known as common law pleading in
civil cases.
The rules of evidence consist of principles applicable to the admission
of evidence in judicial proceedings. These rules are largely of common law
origin; however, they have been modified by statutory law and court
decisions. In this chapter, we focus on civil procedure, the rules of
evidence, and appellate procedure applicable to both civil and criminal
disputes. Appellate procedure refers to the rules by which higher courts
review lower court decisions. In Chapter 10, we amplify the rules of
evidence and appellate procedure in relation to the adjudication of criminal
cases.
CIVIL PROCEDURE
Those unable to resolve civil disputes informally have the right of access
to the courts to attempt to obtain relief. One who files a complaint is
known as the plaintiff; the party against whom the complaint is filed is
known as the defendant. Of course, in some instances multiple plaintiffs
may seek relief from more than one defendant. Plaintiffs and defendants
are known as the parties, and their rights are determined in accordance
with the principles of the substantive law, discussed in previous chapters.
Civil procedure is the process that governs judicial resolution of civil
disputes.
Class Actions
A class action is a lawsuit brought against an alleged wrongdoer by a
group of persons who have suffered a similar wrong or injury. Class
actions are typically brought by parties who claim to represent a large
group of unnamed persons who share a common interest in seeking relief.
Class actions in federal and state courts have developed only since the
mid-twentieth century. A class action may be maintained where joinder of
the numerous plaintiffs is impracticable. Moreover, before the court
permits a class action, the plaintiffs must establish that the questions of
law or fact are common to a class of parties and that one or more parties
suing on behalf of the class fairly represent the class. Likewise,
representatives of the class of defendants being sued may maintain a
defense. Once the trial court determines that a class action may be
maintained, notice is given to all interested parties. The federal rules of
civil procedure provide that any member of the class must be given the
option to be excluded from the class action, and unless a party opts for
exclusion, that party will be bound by the court’s determination in the
class action. Rules of procedure in state courts usually impose similar
requirements.9
Class actions have become a major vehicle for social and economic
reform. In recent years, class actions have been filed by persons claiming
injuries resulting from exposure to cigarette smoke, asbestos, silicone
breast implants, misrepresentations concerning insurance, and antitrust
violations; prisoners also have instituted class actions to require states to
improve prison facilities. Suits such as these frequently result in court-
approved compromises. In some instances, the parties agree on the
institution of certain reforms. In others, plaintiffs obtain monetary
settlements and, after payment of attorney’s fees and costs, the settlement
proceeds are distributed to the class claimants. One of the more famous
class action lawsuits involved residents of Hinkley, California, who
brought suit against the Pacific Gas and Electric Company for allegedly
polluting water sources with a contaminant that may have increased cancer
rates in the town. The story of this case, which resulted in a $300 million
settlement in 2000, was told in the movie Erin Brockovich.
Overall, it is critical that class action lawsuits comport with rules of civil
procedure. In 2011, in Wal-Mart v. Dukes, 10 the Supreme Court dismissed
a class action lawsuit on behalf of female employees claiming
discrimination by their employer, Wal-Mart. The suit was rejected because
the group did not present a common question of law or fact, thus
invalidating the use of a class action lawsuit under Federal Rule of Civil
Procedure 23(a). Similarly, in 2014, a federal district court judge in
California ruled that Google would not face a class action lawsuit for
alleged violations of email users’ privacy rights; specifically, the judge
stated that the various claims against Google were “too dissimilar” and
thus could not be combined into one action.11
Jury Size
At common law, juries in both civil and criminal cases consisted of twelve
persons. In Colgrove v. Battin (1973) (excerpted on page 337), the
Supreme Court held that federal district court rules authorizing six-person
juries in civil cases were permissible under the Seventh Amendment. The
Court distinguished between the right to a jury trial in suits at common law
and the incidents of the common law jury. States have generally followed
this approach and most now permit six-person juries in civil cases.
Jury Selection
State and federal laws prescribe certain basic qualifications for jurors.
Statutes commonly require that jurors be at least eighteen years of age and
residents in the state or district from which they are to be selected.
Convicted felons whose civil rights have not been restored are usually
excluded from serving on juries. Beyond this, statutes frequently carve out
exemptions for expectant mothers, mothers with young children, and
persons over age seventy, as well as for physicians, dentists, attorneys,
judges, teachers, elected officials, and police, fire, and emergency
personnel. The trend has been for states to restrict exemptions from jury
duty in order that the pool of prospective jurors reflects a cross-section of
the community.
The goal is to select prospective jurors at random from lists of persons
representative of the community. Local officials compile a list of persons
qualified to serve as jurors, generally from the rolls of registered voters,
driver’s license lists, or some combination thereof. From this list,
prospective jurors are randomly selected and summoned to court.
Compensation paid to trial jurors ranges from meager to modest per diem
travel and other expenses.13
The body of persons summoned to be jurors is referred to as the venire.
After outlining the case to be tried and reciting the names of those
expected to participate, the judge may excuse those whose physical
disabilities or obvious conflicts of interest based on family relationships or
business connections prevent them from serving. The judge swears in the
remaining members of the venire to answer questions put to them by the
court and counsel. Then six or twelve of these prospective jurors are called
at random to take their seats in the jury box where the judge or counsel for
each side may ask further questions of them in a process called the voir
dire.
COLGROVE v. BATTIN
413 U.S. 149, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973)
Mr. Justice Brennan delivered the Opinion of the Court.
…The pertinent words of the Seventh Amendment are: “In Suits at
common law… the right of trial by jury shall be preserved.…” On its
face, this language is not directed to jury characteristics, such as size,
but rather defines the kind of cases for which jury trial is preserved,
namely, “suits at common law.” And while it is true that “[w]e have
almost no direct evidence concerning the intention of the framers of the
seventh amendment itself,” the historical setting in which the Seventh
Amendment was adopted highlighted a controversy that was generated,
not by concern for preservation of jury characteristics at common law,
but by fear that the civil jury itself would be abolished unless protected
in express words. Almost a century and a half ago, this Court
recognized that “[o]ne of the strongest objections originally taken
against the constitution of the United States, was the want of an express
provision securing the right of trial by jury in civil cases.”… But the
omission of a protective clause from the Constitution was not because
an effort was not made to include one. On the contrary, a proposal was
made to include a provision in the Constitution to guarantee the right of
trial by jury in civil cases but the proposal failed because the States
varied widely as to the cases in which civil jury trial was provided, and
the proponents of a civil jury guarantee found too difficult the task of
fashioning words appropriate to cover the different state practices. The
strong pressures for a civil jury provision in the Bill of Rights
encountered the same difficulty. Thus, it was agreed that, with no
federal practice to draw on and since state practices varied so widely,
any compromising language would necessarily have to be general. As a
result, although the Seventh Amendment achieved the primary goal of
jury trial adherents to incorporate an explicit constitutional protection of
the right of trial by jury in civil cases, the right was limited in general
words to “suits at common law.” We can only conclude, therefore, that
by referring to the “common law,” the Framers of the Seventh
Amendment were concerned with preserving the right of trial by jury in
civil cases where it existed at common law, rather than the various
incidents of trial by jury. In short,… constitutional history reveals no
intention on the part of the Framers “to equate the constitutional and
common law characteristics of the jury.”…
Peremptory Challenges
Each side is allowed a limited number of peremptory challenges that may
be exercised on voir dire to excuse prospective jurors without stating any
reason. The number of peremptory challenges is usually provided by
statute or court rules. In federal courts, each party in a civil suit is allowed
three peremptory challenges.15 States vary in the number of peremptory
challenges they allow, with many following the federal practice.
Historically, lawyers were permitted to exercise peremptory challenges
without advancing any reason; however, in the past two decades courts
have reassessed this historic freedom. In 1986, the U.S. Supreme Court
prohibited the exercise of racially based peremptory challenges, holding
that such intentional discrimination based on race violates the Equal
Protection Clause of the Fourteenth Amendment to the U.S.
Constitution.16 In 1994, the Court resolved conflict among lower federal
courts and held that the Equal Protection Clause also prohibits gender-
based peremptory challenges.17 These decisions have required lawyers to
be quite cautious in their exercise of peremptory challenges. Some
commentators even believe that peremptory challenges are becoming a
relic in trial practice.
CASE IN POINT
Closing Arguments
Because a judge is trained in evaluating evidence, counsel in bench trials
frequently waive their right to make closing arguments; otherwise, their
arguments are generally quite brief. But in jury trials, lawyers place great
importance on their closing arguments. Closing arguments are designed to
assist the jury in recalling and evaluating the evidence and in drawing
inferences therefrom. Many lawyers begin by recapitulating the evidence
in the light most favorable to their client. After that, the lawyer for each
side entreats the jury to rule in favor of their client. Counsel may comment
on the weight of the evidence and the credibility of the witnesses but may
not state a personal belief about the merits of the case or refer to any
matters—other than those of common, everyday knowledge—that have
not been introduced in evidence. Improper comments by counsel may
result in a mistrial if the judge determines that they have prejudiced the
jury.
Judicial Notice
Certain matters that are beyond argument are accepted by a court without
proof. Courts accept such facts, as well as laws, by taking judicial notice.
Courts customarily take judicial notice of the calendar, names of certain
public officials, the boundaries of a geographical area, and other
undisputed facts well known in the jurisdiction where the court sits. Courts
also take judicial notice of laws, rules of procedure, and the rules of
evidence. Rule 201 of the Federal Rules of Evidence states that it is
discretionary for a court to take judicial notice, whether requested or not,
but that the court shall take judicial notice if requested by a party and
supplied with the necessary information. In most states, statutes or rules of
court include similar provisions.
Evidentiary Presumptions
An evidentiary presumption is an assumption of fact that the law makes
from the existence of another fact or facts, although unproven by evidence.
These are evidentiary devices designed to aid a party who has the burden
of proof. Under this type of presumption, once evidence establishes a fact,
the judge and jury may infer something else is true, provided there is a
rational connection between the established fact and the presumed fact. In
effect, this means that if a party proves certain facts, the judge or jury
accepts the presumed fact as proven unless evidence rebuts the presumed
fact. Most presumptions are rebuttable. For example, there is a rebuttable
presumption that a child born during marriage is the child of the marital
partners. There is a rebuttable presumption that a properly stamped,
addressed, and mailed letter reached its intended recipient.22 A party who
rebuts the presumption has the burden of proving the presumption false.
Classifications of Evidence
There are several classifications of evidence. First, evidence may be real or
testimonial. Real evidence consists of maps, blood samples, x-rays,
photographs, fingerprints, knives, guns, and other tangible items.
Testimonial evidence consists of sworn statements of witnesses.
Watching a television drama might give the impression that a trial consists
largely of real evidence, but the great majority of evidence presented in
civil and criminal trials comes from the mouths of the witnesses, both lay
and expert.
Next, evidence may be direct or indirect. Direct evidence is evidence
that directly proves a fact in issue, and includes eyewitness testimony. In
contrast, indirect evidence only tends to establish a fact in issue and
usually consists of circumstantial evidence. In a civil trial, a witness who
actually saw an automobile accident would be giving direct evidence.
However, testimony by a witness who before the accident saw the
defendant driving the vehicle that was later involved in the accident would
be giving circumstantial evidence tending to indicate that the defendant
was the driver. Testimony that reveals that the defendant’s fingerprints
were found on a window pane of that house shortly after it was broken into
is also circumstantial evidence and depending on the circumstances, it may
be inferred that the defendant entered the house through that window. The
admissibility of circumstantial evidence is well established in American
law. Contrary to popular belief, there is no real difference in the weight
given circumstantial, as opposed to real, evidence.23
Requirements of Admissibility
Before a witness testifies in a judicial proceeding, the witness takes an
oath to swear or affirm to tell the truth. The common law rule no longer
bars a witness from testifying because the witness does not profess belief
in a Supreme Being. Where a witness does not understand the English
language, the court appoints an interpreter who must take an oath to
properly interpret the questions asked and the witness’s answers. Before
evidence may be admitted in court, whether real or testimonial and
whether direct or circumstantial, it must be relevant and must come from a
competent witness.
Relevancy
To be admissible in court proceedings, evidence must also be relevant.
Relevant evidence is that which tends to prove or disprove a material fact.
Consequently, evidence that is relevant in one case may not necessarily be
relevant in another. Trial judges have considerable discretion in
determining whether evidence is relevant.
Certain relevant evidence may not be admissible in court proceedings. It
may be needlessly cumulative. The following are examples where the
probative value of relevant evidence is outweighed by the prejudice that
would likely ensue for the party against whom the evidence is offered:
■ A person’s character is generally held to be inadmissible to prove that a
person behaved in a certain way.
■ An offer to compromise a disputed claim or statements made during
settlement negotiations is inadmissible.
■ The fact that the defendant carries liability insurance is generally
inadmissible in a suit seeking to recover damages based on a
defendant’s alleged negligence.
Competency
To be admissible in court, evidence must also be competent. At common
law, persons who had an interest in the case were not permitted to testify,
and a person younger than age fourteen was presumed to be incapable of
testifying. Statutes and court decisions have eliminated these
disqualifications in the United States. A witness, regardless of age or
interest, who has the ability to understand the nature and obligation of
taking an oath to tell the truth is presumed to be competent. A party who
asserts to the contrary must establish that the witness is not competent to
testify. Even a person adjudged incompetent might be permitted to testify
if the court finds that person is lucid at the time of testifying. In the case of
a very young child, it is the judge’s duty to determine if the child has
sufficient maturity to understand, remember, and relate facts and that the
child understands the obligation of taking an oath to tell the truth. In some
instances, a child as young as five or six has been allowed to testify in
cases of child abuse. Trial judges have broad discretion to make such a
determination.
Privileges
A witness may be competent to testify and may be in a position to offer
relevant evidence, yet in certain instances the court may not hear the
evidence. Since early common law, courts have decided that it is in the
interest of society that certain forms of communication remain
confidential. Therefore, certain facts that may be relevant are not
admissible in court proceedings because they are privileged
communications. The most common privileges include the following:
■ Attorney-client privilege. A communication between an attorney and
client that is not intended to be disclosed to a third person is considered
privileged, subject to certain exceptions. There is no privilege as to any
communication by the client informing the attorney of the client’s intent
to commit a crime or to perpetrate a fraud.
■ Marital privilege. Communications between spouses are intended to
be confidential and privileged. The privilege emanates from the
common law and is based on promoting and preserving domestic
harmony and on the repugnance against convicting one person through
the testimony of another who shares intimate secrets of domestic life.
The temptation to perjure is another consideration. The privilege not
only allows a spouse to refuse to disclose communications, but also
allows one spouse to prevent the other spouse from disclosing them.
Most courts hold that neither divorce nor death invalidates the privilege.
But suppose a husband confessed to his wife that he had stolen building
materials from a job where he was working. The wife would be
prohibited from testifying to that conversation. On the other hand, the
wife could testify that her husband arrived home with some building
materials. Like other privileges, there are exceptions. The privilege does
not apply when one spouse sues the other, when litigation arises out of
child abuse, or when a spouse offers testimony on behalf of a spouse
who is a defendant. States that have enacted laws providing for same-
sex marriage usually incorporate the marital communications privilege
and the benefits of the marital immunity from compelled testimony (see
Chapter 8). A few jurisdictions have extended the privilege by making it
applicable to confidential communications between a parent and minor
child.
■ Clergy privilege. Communications made by a person to a
clergyperson seeking spiritual assistance are privileged. Generally,
priests, ministers, and rabbis are prohibited from testifying about
matters related to them in confidence by a penitent.
■ Additional privileges. States frequently have added privileges such as
those between an accountant and client, between a physician and
patient, and between a psychotherapist and patient. Moreover, courts
frequently allow a limited privilege not to disclose trade secrets.
Expert Witnesses
Today, forensic experts in nearly every field make a specialty of
testifying in court. To qualify as an expert, a witness must present proper
credentials and be received by the trial court as an expert. After one side
offers a witness as an expert, opposing counsel may cross-examine the
prospective witness about the witness’s qualifications. Thus, a physician
who is to give evidence as to the cause of death of someone is first asked
to relate his or her educational background and experience in the
specialized area of medical practice in question. The trial judge has
considerable discretion in determining whether a witness is to be received
as an expert.
Unlike lay witnesses, expert witnesses may respond to hypothetical
questions and may express opinions within the realm of their expertise.
Fingerprint identification, ballistics tests, handwriting exemplars, and
medical tests have been prominent among areas where expert evidence is
commonly received in criminal cases. More recently, evidence of speed
detection devices and devices to test blood-alcohol content have become
commonplace in civil and criminal trials.
An expert who has knowledge from personal observation may testify on
that basis. For example, in some states, a psychiatrist who has examined
the accused may offer an opinion as to the accused’s sanity. If the expert is
not acquainted with the person or subject from personal observation, the
expert can base an opinion upon a hypothetical question that assumes the
existence of facts the evidence tends to establish.
Hearsay Evidence
Hearsay evidence refers to an oral or written statement by a person, other
than the one testifying in court. The general rule is often stated as: A
witness may not testify as to a statement made by another if that statement
is offered as proof of the matter asserted. Thus, a witness who testifies, “I
know the defendant was home on the night of March 13 because my sister
told me so” would be giving hearsay testimony. The hearsay rule has many
exceptions. Sometimes, a hearsay statement is admissible to prove
something other than the truth of the statement itself. Further, a party’s
out-of-court statement is generally considered an exception to the hearsay
rule if it is an admission, confession, or some other statement against that
party’s interest. The following are among the many exceptions to the
hearsay rule.
■ Spontaneous or excited utterances. Where a statement is
spontaneously made to describe or explain some event at or immediately
following the event it is deemed sufficiently trustworthy to be an
exception to the hearsay rule.
■ Dying declarations. A person’s dying declaration is a statement made
while the declarant believed that death was imminent. In 1961, the
Maryland Supreme Court held such a statement might even be in
response to a question asked by a bystander, thus not requiring the usual
spontaneity.25
■ Reputation and records. Evidence of a person’s reputation in the
community and evidence of births, deaths, and other data contained in
old family records are exceptions to the hearsay rule.
■ Business and public records. Business records kept in the ordinary
course of business, hospital and medical records, and authenticated
public records are exceptions to the hearsay rule.
■ Statements made for medical diagnosis. Because there is a slight
chance that a person who is seeking treatment will relate incorrect facts
to a physician, statements made to secure medical treatment are held to
be an exception to the hearsay rule.
Opinion Evidence
A lay witness is supposed to testify regarding facts within the witness’s
personal knowledge. In addition, lay witnesses are permitted to testify
about such matters perceived through their physical senses and matters that
are within the common knowledge of most people, such as speed of a
vehicle, sizes, distances, or appearance of a person. They cannot give
opinion evidence on matters beyond the common experience and
understanding of laypersons. To illustrate: A driver can give an estimate of
the speed of a vehicle observed traveling on the street. But a witness must
be qualified as an expert to be permitted to testify as to the speed of a car
based on observation of the car’s skid marks on the pavement. Such an
opinion must be based on facts perceived by the witness and not on
hearsay statements.
APPELLATE PROCEDURE
Appellate courts perform dual functions in the civil and criminal process:
error correction and lawmaking. Intermediate federal or state appellate
courts review most civil and criminal appeals, although in the less
populous states, the highest court of the state handles routine appeals. In
these routine appeals, the primary function of appellate courts is to correct
trial court errors. Appellate review is designed to ensure that substantive
justice has been accomplished under constitutional standards of due
process of law. Because of gaps in the statutory law and the inevitable
need to interpret both statutory and constitutional provisions, appellate
courts, in effect, must “make law.” This lawmaking function is more
characteristic of the highest courts than of intermediate appellate tribunals.
To the layperson, the jurisdictional requisites and procedures of
appellate courts appear complex. Although these procedures vary in detail,
they essentially follow the same basic path for both civil and criminal
appeals. In some instances, a party who desires an appeal must first file a
motion asking the trial court to order a new trial. This is often a pro forma
measure, but it affords the trial judge an opportunity to review the
defendant’s claim of error and award a new trial if necessary. For some
appellate courts, a motion for a new trial may be a prerequisite to
challenging whether the evidence was sufficient to sustain the lower
court’s judgment.
Appellate courts possess both original and appellate jurisdiction. Most
of the work of an appellate court concerns its appellate jurisdiction, that is,
the power to review decisions of lower tribunals. We first discuss this
phase of appellate procedure. At the conclusion of the chapter, we briefly
mention the original jurisdiction of appellate courts.
Motions
During the early stages of the appellate process, counsel use motions to
draw the court’s immediate attention to procedural matters outside the
routine of the appellate process. Counsel may request additional time to
meet deadlines for filing briefs or move for expedited consideration of an
appeal. By appropriate motions, counsel may request to sever or
consolidate multiple appeals or to supplement the record the trial court has
transmitted to the appellate court. Upon a showing of good cause, an
appellate court may stay enforcement of a lower court judgment pending
resolution of the appeal.
Filing of Briefs
Filing a notice of appeal or a petition for discretionary review sets in
motion a series of procedural steps governed by the rules of appellate
procedure of the federal or state appellate court. It is incumbent on the
appellant or petitioner to have the clerk of the trial court forward to the
appellate tribunal certified copies of pertinent records and transcripts of
testimony relevant to the issues to be raised on appeal. Beyond this,
procedures vary somewhat depending largely on whether the appeal is one
of right or whether the defendant is seeking discretionary relief.
The party taking an appeal is called the appellant; the responding party
is known as the appellee. In an appeal of right, the appellant files an initial
brief summarizing the legal posture and the factual background of the case
in the lower tribunal. Briefs are the principal instruments used to persuade
the appellate court to reverse, affirm, or modify the decision being
appealed. The extent of background information contained in the briefs
depends on the points to be presented to the appellate court. Briefs are
heavily laden with citations to constitutional provisions, statutes, and court
decisions that the advocates regard as persuasive. The appellee is
permitted to respond by filing an answer brief, and the appellant may then
file a reply brief. The whole process resembles the order of a formal
debate where the affirmative presents its case, followed by the negative
and a rebuttal by the affirmative.
Where a petitioner seeks discretionary review, the appellate court must
first decide whether to accept or deny the request to take jurisdiction. If the
court determines to proceed on the petition, it will order all affected parties
(respondents) to furnish the court a written response. As in an appeal of
right, often the petitioner is permitted to file a reply to that response.
Counsel must always furnish copies of briefs and other materials to their
adversaries.
Oral Argument
After the appellate court has reviewed briefs, it may schedule oral
argument where counsel for both parties appear. Typically, appellate
courts conduct oral arguments in about half the cases they decide. During
oral argument, counsel for both parties may summarize their positions
orally and then respond to questions from the bench. Usually, each side is
given fifteen to thirty minutes for an oral presentation. Increasingly, oral
arguments are punctuated by questions from the bench. Indeed, today,
many oral arguments take the form of a dialogue rather than that of a
structured presentation.
CONCLUSION
Civil procedure enables courts to hear and resolve disputes in an orderly
and fair manner. Further, the rules of evidence assure litigants that courts
will uniformly apply known principles to determine proof in a non-
prejudicial manner. Appellate procedures then furnish litigants a means of
correcting errors and provide an accountability mechanism in the judicial
system. Because these rules are published in advance in all jurisdictions,
counsel trained in law can assist litigants to avoid litigation by evaluating
their claims and defenses. Ultimately, when amicable settlements cannot
be arranged, counsel can enter the judicial arena with a sense of
predictability.
affirm
answer
answer brief
appellant
appellate procedure
appellee
attorney-client privilege
bench trial
best evidence rule
business and public records
case management conference
cause of action
challenge for cause
circumstantial evidence
citations
civil procedure
class action
clergy privilege
closing arguments
common law pleading
competent
complaint
concurring in the judgment
concurring opinion
constructive service
counterclaim
cross-claim
cross-examination
damages
declaratory relief
default
default judgment
defendant
deposition
direct evidence
direct examination
directed verdict
discovery
dissenting opinion
diversity jurisdiction
dying declarations
en banc rehearing
error correction
evidentiary presumption
expert witness
eyewitness testimony
forensic experts
gender-based peremptory challenges
general damages
general objection
general verdict
habeas corpus
hearsay evidence
hung jury
hypothetical question
in forma pauperis
indirect evidence
initial brief
initial pleading
injunction
interrogatories
involuntary dismissal
judicial conference
judicial notice
jurisdiction
jury instructions
jury trial
lawmaking
long-arm statutes
mandamus
marital privilege
mistrial
motion for rehearing
motions
nominal damages
notice of appeal
opening statement
opinion evidence
opinion of the court
oral argument
original writs
out-of-court settlements
parties
per curiam opinion
peremptory challenges
personal service
petitioner
plaintiff
polygraph evidence
preponderance of the evidence
pretrial conference
privileged communications
prohibition
protective order
punitive damages
racially based peremptory challenges
real evidence
rebuttable presumption
rebuttal
relevant evidence
remand
reply brief
reporters
reputation
reverse
rule of four
rules of evidence
sequestration of the jury
special damages
special verdict
specific objection
specific performance
spontaneous or excited utterances
substantial federal question
substituted service
summary judgment
summons
testimonial evidence
third-party practice
venire
venue
voir dire
writ of certiorari
ENDNOTES
1. 28 U.S.C. §1332. In 1958 Congress set the amount for diversity jurisdiction at $10,000. Since
then it has increased the amount presumably to take into consideration inflation and to
diminish the burden that diversity jurisdiction imposes on federal courts.
2. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
3. International Shoe v. Washington, 326 U.S. 310, 66 S. Ct. 154; 90 L. Ed. 95 (1945).
4. Perkins v. Benguet Mining Co., et al., 342 U.S. 437, 72 S. Ct. 413, 96 L.Ed. 485 (1958).
Subsequent cases have helped to untangle the types of criteria that define “continuous and
systematic” ties; see, e.g., Hertz Corporation v. Friend, 559 U.S. ___77, 130 S. Ct. 1181; 175
L. Ed. 2d 1029 (2010), which evaluated the “nerve center” of the company, as well as the
“principal place of business.” Chapter 4 contains additional information on the jurisdiction of
U.S. courts over foreign companies.
5. Daimler AG v. Bauman 571 U.S. ___ (2014).
6. International Shoe v. Washington, 326 U.S. 310, 66 S. Ct. 154; 90 L. Ed. 95 (1945).
7. Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). This matter was
discussed in several subsequent cases, including: World-Wide Volkswagen Corp. v Woodson,
444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980), Burger King v. Rudzewicz, 471 U.S.
462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985), Asahi Metal Industry Co. v. Superior Court,
480 U.S. 102, 107 S. Ct. 1026, 94 L.Ed.2d 92 (1987).
8. Judges frequently take a more active role in the adjudication of disputes in small claims courts
where, because the cost of retaining counsel may exceed the amount in controversy, parties
usually appear without counsel.
9. Fed. R. Civ. P. 23.
10. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011).
11. Jonathan Stempel, “Google Won’t Face Email Privacy Class Action,” Reuters, March 19,
2014; available at: http://mobile.reuters.com/article/idUSBREA2I13G20140319?irpc=932.
12. Brown v. Bridges, 327 So. 2d 874 (Fla. App. 1975).
13. While most states prohibit an employer from discharging an employee called for jury duty,
Connecticut is one of a few states that require employers to continue to pay their employees
while on jury duty. This requirement applies only to full-time employees and is limited to five
days of jury service. Conn. Gen. Stat. Ann. §51-247.
14. Alderman v. State, 327 S.E.2d 168 (Ga. 1985).
15. 18 U.S.C. §1870.
16. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
17. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994).
18. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
19. 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
20. Mo. R. Civ. P. 72.01.
21. See, e.g., Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S. Ct. 523, 57 L. Ed. 879 (1913).
22. Konst v. Florida E. Coast Ry. Co., 71 F.3d 850 (11th Cir. 1996).
23. Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954).
24. Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987).
25. Connor v. State, 171 A.2d 699 (Md. 1961).
LEARNING OBJECTIVES
CHAPTER OUTLINE
Introduction
Search and Seizure
Arrest and Investigatory Detention
Interrogation and Identification of Suspects
The Right to Counsel
The Pretrial Process
The Criminal Trial
Sentencing
Victims’ Rights in the Criminal Process
The Appeals Process
Criminal Procedure in Military Tribunals
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
Sobriety Checkpoints
One device increasingly used by law enforcement to combat the problem
of intoxicated drivers is sobriety checkpoints, in which all drivers passing
a certain point are stopped briefly and observed for signs of intoxication.
To the extent that police officers at these checkpoints visually inspect the
passenger compartments of stopped automobiles, these brief encounters
involve searches, although in most instances these procedures entail only
minor intrusion and inconvenience. Opponents of sobriety checkpoints
argue that they amount to dragnet searches—the government searches
many people in the hope of catching a few. Advocates of sobriety
checkpoints argue that these measures save lives by reducing the number
of drunk drivers on the streets. In 1990, the Supreme Court upheld the use
of sobriety checkpoints to detect intoxicated drivers.20 For the most part,
state courts also have upheld sobriety checkpoints, but some have placed
restrictions on how they are conducted. In November 2000, though, the
Supreme Court did limit the use of checkpoints that are designed to detect
“ordinary lawbreaking” (in that specific case, drug possession) as distinct
from sobriety checkpoints.21 And, the Court’s 2013 decision in Missouri v.
McNeely requires police to acquire a warrant for most compelled blood
tests of drivers who are suspected of DUI—although exceptions to this
warrant requirement can be made in certain exigent circumstances, such as
in the case of an accident.22
The Warrant Requirement
The Fourth Amendment expresses a decided preference for searches and
seizures to be conducted pursuant to a warrant. The warrant requirement is
designed to ensure that the impartial judgment of a judge or magistrate is
interposed between the citizen and the state. With the exception of
warrants permitting administrative searches, search warrants must be
based on probable cause. Probable cause exists when prudent and cautious
police officers have trustworthy information leading them to believe that
evidence of crime may be obtained through a particular search. The
Supreme Court has said that courts should view the determination of
probable cause as a commonsense, practical matter that must be decided in
light of the totality of circumstances in a given case.23 Some state courts
have declined to follow this approach and have opted to provide their
citizens more protection under their state constitutions than allowed by the
federal view.
Under normal circumstances, a police officer with probable cause to
believe that evidence of a crime is located in a specific place must submit
under oath an application for a search warrant to the appropriate judge or
magistrate. An affidavit is a signed document attesting under oath to
certain facts of which the affiant (the person submitting the affidavit) has
knowledge. Usually, an affidavit by a law enforcement officer requesting
issuance of a search warrant is presented to a judge or magistrate. The
officer’s affidavit in support of a search warrant must always contain a
rather precise description of the place(s) or person(s) to be searched and
the things to be seized, and must attest to specific facts that establish
probable cause to justify a search. The information must be sufficiently
fresh to ensure that the items to be seized are probably located on the
premises to be searched.
A magistrate’s finding of probable cause may be based on hearsay
evidence. This rule permits police to obtain search warrants based on tips
from anonymous or confidential informants. Confidential informants, or
“CIs,” are often persons who have been involved with the police and are
seeking favorable consideration in respect to their own offenses. Because
their motivation may be suspect, their reliability is checked carefully. For
many years, the Supreme Court required magistrates to apply a rigorous
test that made it very difficult for police to use anonymous tips. In 1983,
however, the Supreme Court relaxed the test and permitted magistrates to
consider the “totality of circumstances” when evaluating applications
based on hearsay evidence.24 Despite the relaxed standard approved by the
U.S. Supreme Court, several state courts have opted to continue to require
more rigorous standards in evaluating a CI’s credibility and basis of
knowledge before approving a search warrant based on information from a
CI.
CASE IN POINT
A formal arrest occurs when police take an individual into custody and
charge that person with the commission of a crime. As a form of “seizure,”
an arrest is governed by the probable cause and warrant provisions of the
Fourth Amendment. But the formal arrest is not the only type of encounter
between police and citizens that implicates the Fourth Amendment. A
seizure, for Fourth Amendment purposes, occurs when a police officer
uses force or the threat of force to in some way restrain a person’s liberty.
Arrest Warrants
An arrest warrant is routine in cases where an arrest is to be made based
on an indictment by a grand jury. When a prosecutor files an information,
a capias is issued by a court directing the arrest of the defendant. In such
cases, suspects may not be aware that they are under investigation, and
police officers have ample time to obtain an arrest warrant without fear
that suspects will flee. However, most arrests are not made pursuant to
secret investigations but rather are made by police officers who observe a
criminal act, respond to a complaint filed by a crime victim, or have
probable cause to arrest after completing an investigation. In these
situations, it is often unnecessary for police to obtain an arrest warrant, but
it is always essential that they have probable cause to make the arrest.
Warrantless Arrests
At common law, police had the right to make a warrantless arrest if they
observed someone in the commission of a felony or they had probable
cause to believe that a person had committed or was committing a felony.
To make a warrantless arrest for a misdemeanor, an officer had to observe
someone in the commission of the act. Otherwise, to make an arrest, a
warrant was required. Many states enacted statutes adopting common law
rules of arrest allowing police officers broad discretion to make
warrantless arrests. As with warrantless searches and seizures, the
Supreme Court has approved warrantless arrests: (1) where crimes are
committed in plain view of police officers; or (2) officers possess probable
cause to make an arrest, but exigent circumstances prohibit them from
obtaining a warrant. Absent plain view or compelling exigencies, though,
it is unclear whether police officers need to obtain an arrest warrant. As a
matter of policy, it makes sense for them to obtain arrest warrants when
possible. However, given the time it takes to obtain an arrest warrant and
the fact that magistrates are not always available around the clock, it is not
always feasible for police to obtain warrants prior to arrest.
Investigatory Detention
A very common form of police encounter is the so-called stop-and-frisk or
investigatory detention. Based on the Supreme Court’s 1968 decision in
Terry v. Ohio, police are permitted to stop pedestrians or automobiles
temporarily as long as they have reasonable suspicion that criminal activity
is afoot.47 Police may then perform a limited pat-down search of the
suspect’s outer clothing to ascertain whether the suspect is armed. Under
the doctrine of plain view, contraband discovered during a legitimate pat-
down for weapons may be admissible into evidence. For example, if
during the course of a lawful frisk, a police officer feels what the officer
suspects is a knife concealed in the suspect’s pocket, the officer may
retrieve the object. If it turns out to be a metal smoking pipe wrapped
inside a plastic bag containing “crack” cocaine, the crack would most
likely be admissible as evidence of crime.48
Racial Profiling
A controversial aspect of law enforcement is the use of racial
characteristics in determining which suspects to pull over or detain for
questioning. In 2003, in response to reports that police in their state were
targeting drivers of minority races for traffic stops, legislators in New
Jersey actually made it a crime for police to use race as the seminal
criterion in determining which individuals to stop. Other states have also
taken steps to curtail the use of race as a primary factor in traffic stops.
However, some have suggested that Arizona’s recent passage of a law
designed to curtail illegal immigration may incorporate an aspect of racial
profiling. The controversy began on April 23, 2010, when Arizona
governor Jan Brewer signed a law called the Support Our Law
Enforcement and Safe Neighborhoods Act, also known as Arizona Senate
Bill 1070. Its most controversial provision asked state law enforcement to
determine an individual’s immigration status during any lawful detention
when there was reasonable suspicion that the individual was in the United
States illegally. Because the notion of reasonable suspicion in the context
of this law seemed closely tied to race, a federal appeals court issued an
injunction to bar implementation of this measure, but in Arizona v. United
States (2012), the U.S. Supreme Court allowed the provision to stand ,
while noting that future challenges based on racial profiling would be
allowed.50
Identification Procedures
Law enforcement agencies employ various means to identify suspects. The
principal means is through eyewitness identification, often at “line-ups.”
The Supreme Court has noted that accused criminals are entitled to have
counsel present at line-ups and that line-ups should not be “unnecessarily
suggestive,” as would be the case if, say, a 6-foot suspect were
surrounding by 5-foot men in a line-up.62 Beyond the use of line-ups,
scientific methods have become increasingly important to police. Such
methods include comparison of blood samples, matching of clothing
fibers, comparison of head and body hair, identification of semen, and
DNA tests. The Fifth Amendment privilege against compulsory self-
incrimination does not apply to identification procedures,63 although
police may need to procure a warrant to compel a suspect to provide
certain physical evidence. Further, the reliability and validity of particular
procedures remains subject to due process–based challenges.
CASE IN POINT
Two New York City police officers were approached by a woman who
claimed she had just been raped and that her assailant had gone into a
nearby grocery store. The police were informed that the assailant was
carrying a gun. The officers proceeded to the store and immediately
spotted Benjamin Quarles, who matched the description given by the
victim. Upon seeing the police, Quarles turned and ran. One of the police
officers drew his service revolver and ordered Quarles to “freeze.” Quarles
complied with the officer’s request. The officer frisked Quarles and
discovered an empty shoulder holster. Before reading Quarles the Miranda
warnings, the officer asked where the gun was. Quarles nodded in the
direction of some empty boxes and said, “The gun is over there.” He was
then placed under arrest and “Mirandized.” Later, Quarles moved to have
his statement suppressed from evidence since it was made prior to the
Miranda warnings. He also moved for suppression of the gun under the
fruit of the poisonous tree doctrine. The Supreme Court allowed both
pieces of evidence to be used against Quarles, notwithstanding the delay in
the Miranda warnings. Obviously, the Court felt that the officers were
justified in locating a discarded weapon prior to Mirandizing Quarles. In
so holding, the Court created the public safety exception to Miranda.
The Sixth Amendment to the U.S. Constitution provides: “In all criminal
prosecutions, the accused shall enjoy the right… to have the Assistance of
Counsel for his defense.” The right to counsel is essential to preserving
the fundamental fairness of all criminal procedures. The defense attorney
not only represents the accused in pretrial court proceedings but also
advises on strategy and often serves as the negotiator between the
defendant and the prosecutor.
The Sixth Amendment has been consistently interpreted to allow
defendants to employ counsel in all federal prosecutions. Similar
provisions in the constitutions of the fifty states allow defendants to retain
counsel in state criminal prosecutions. Irrespective of state constitutional
protection, the accused is protected by the federal Constitution. In Gideon
v. Wainwright (1963), the Supreme Court held that the Sixth Amendment
right to counsel applies to prosecutions in the state courts by way of the
Due Process Clause of the Fourteenth Amendment.64
GIDEON v. WAINWRIGHT
372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)
Mr. Justice Black delivered the Opinion of the Court.
…[I]n our adversary system of criminal justice, any person haled into
court, who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided for him. This seems to us to be an obvious
truth. Governments, both state and federal, quite properly spend vast
sums of money to establish machinery to try defendants accused of
crime. Lawyers to prosecute are everywhere deemed essential to protect
the public’s interest in an orderly society. Similarly, there are few
defendants charged with crime, few indeed, who fail to hire the best
lawyers they can get to prepare and present their defenses. That
government hires lawyers to prosecute and defendants who have the
money hire lawyers to defend are the strongest indications of the
widespread belief that lawyers in criminal courts are necessities, not
luxuries. The right of one charged with crime to counsel may not be
deemed fundamental and essential to fair trials in some countries, but it
is in ours. From the very beginning, our state and national constitutions
and laws have laid great emphasis on procedural and substantive
safeguards designed to assure fair trials before impartial tribunals in
which every defendant stands equal before the law. This noble ideal
cannot be realized if the poor man charged with crime has to face his
accusers without a lawyer to assist him.…
Self-Representation
The Supreme Court has held that there is a constitutional right to represent
oneself in a criminal prosecution.67 Moreover, the Court has said that the
defendant’s legal knowledge or skill has no bearing on the right to self-
representation, but it has also stressed that the defendant who waives the
right to counsel and proceeds pro se must do so knowingly and
intelligently. A defendant who chooses self-representation is not required
to evidence knowledge of the law, but a legion of decisions from state
appellate courts hold that before approving a defendant’s request, the trial
court must conduct a thorough hearing to make sure he or she has
intelligently exercised the right to choose self-representation. Moreover,
the Supreme Court has ruled that “a defendant does not have a
constitutional right to receive personal instruction from the trial judge on
courtroom procedure.” 68 Critics of the Court’s approach in allowing
laypersons to represent themselves in serious criminal cases argue that
criminal law and procedure have become too complex and technical to
permit the non-lawyer defendant to engage in effective self-representation.
This is why judges sometimes appoint standby counsel to assist defendants
who choose self-representation.
THE PRETRIAL PROCESS
What happens during the pretrial process often determines the outcome of
a criminal case, as the overwhelming majority of criminal cases never
make it to trial. Some are dropped or dismissed for lack of sufficient
evidence; others result in convictions pursuant to guilty pleas. Many guilty
pleas result from negotiations between prosecutors and defense counsel,
making trials unnecessary.
Excessive Bail
Recognizing the common law practice of allowing pretrial release on bail,
the Eighth Amendment to the federal Constitution states that “excessive
bail shall not be required.” The Supreme Court has made it clear that the
purpose of bail is to ensure the appearance of the accused in court, not to
inflict punishment, as evidenced in its declaration that: “Bail set at a figure
higher than an amount reasonably calculated to fulfill this purpose is
‘excessive’ under the Eighth Amendment.” 70 However, the Supreme
Court has never held that the Excessive Bail Clause of the Eighth
Amendment is enforceable against the states via the Fourteenth
Amendment, leaving the matter of excessive bail in state criminal cases to
the state constitutions, state legislatures, and state courts.
Pretrial Detention
The constitutional prohibition against “excessive bail” is vague regarding
the existence of a constitutional right to pretrial release. The Supreme
Court has ruled that there is no right to bail under the Eighth
Amendment.71 The Federal Bail Reform Act of 198472 allows federal
courts to hold arrestees in pretrial detention on the ground of
dangerousness to the community, as well as the need to ensure future court
appearances. And, in many states, a defendant who is charged with a crime
punishable by death or life imprisonment is ineligible for pretrial release if
there is substantial evidence of guilt.
Pretrial Motions
Pretrial motions are written requests to the court on behalf of the
government or the defendant. Motions commonly filed in criminal cases
include a motion for continuance (postponement), a motion to dismiss
the indictment or information against the defendant, a motion to suppress
a defendant’s confession or admission, a motion to require the government
to identify a confidential informant (CI), and a motion to determine the
accused’s competency to stand trial. In some instances, a motion to take a
deposition is filed to preserve the testimony of a witness who may not be
available for trial. More common in high profile cases is the motion for
change of venue (seeking to move the trial to a different location).
In 2010, Jeffrey Skilling, former CEO of Enron, requested a change of
venue at his trial for securities fraud. The Supreme Court ultimately
rejected his claim that pre-trial publicity made it impossible for him to
receive a fair trial in Houston. The Court noted, among other things, that
Houston is the country’s fourth-largest city, and publicity was more
diffuse there than it would be in a smaller hamlet—and thus it was not
probable that the entire jury pool had been prejudiced.75
Arraignment
The arraignment is the accused’s first appearance before a court of law
with the authority to conduct a criminal trial. At this stage of the process,
the accused must enter a plea to the charges contained in the indictment or
information. The accused may enter a plea of not guilty, in which case the
plea is noted and a trial date is set. He or she may enter a plea of guilty, in
which case no trial is necessary, guilt is pronounced, and sentencing
follows, often after a presentence investigation has been completed. In
some jurisdictions, the accused has the option of pleading nolo contendere
(no contest). The no contest plea, although functionally equivalent to a
guilty plea in a criminal trial, provides the accused the advantage that it
generally cannot be construed as an admission of guilt in a related civil
suit.
Because a plea of guilty or nolo contendere represents a waiver of
constitutional rights, it is essential that the plea be made knowingly and
voluntarily. A factual basis is necessary to ensure that the accused does not
admit to an offense that does not fall within the bounds of the
government’s accusations. Judges employ various methods to determine
voluntariness of a defendant’s plea and to determine whether there is a
factual basis for the offense. These methods usually include interrogation
of the defendant by the judge, and sometimes by the prosecutor and
defense counsel.
Plea Bargaining
In most jurisdictions, more than 90 percent of felony suspects arraigned
plead guilty or no contest. Very often, the guilty plea is the result of a
bargain struck between the defense and the prosecution. In a plea bargain,
the accused agrees to plead guilty in exchange for a reduction in the
number and/or severity of charges or a promise by the prosecutor not to
seek the maximum penalty allowed by law. Plea negotiations are subject to
the approval of the trial court. In most instances, the bargain is arrived at
between experienced and knowledgeable counsel on both sides and is
readily approved by the court. If the court is unwilling to approve the plea
bargain, the defendant must choose between withdrawing the guilty plea
(and thus going to trial), and accepting the plea bargain with such
modifications as the judge may approve. Once the court has accepted a
guilty plea pursuant to a plea bargain, the court cannot unilaterally alter it
without permitting the defendant the opportunity to withdraw the plea.
In some jurisdictions, judges participate directly in plea-bargaining
discussions. Yet, other courts disfavor the participation of a trial judge in
such discussions on the basis that the power and position of the judge may
improperly influence the defendant to enter a guilty plea. Plea bargaining
has been sharply criticized by observers with different perspectives on the
criminal process. Some critics fault plea bargaining for reducing the
severity of criminal penalties. Others view plea bargaining as an
unconstitutional effort to deprive defendants of their right to a fair trial.
Plea bargaining has drawn criticism, but few critics stop to consider the
tremendous costs and delays that would result if the numerous cases
currently resolved through plea bargaining were to go to trial.
In addition to permitting a substantial conservation of prosecutorial and
judicial resources, plea bargaining provides a means by which, through
mutual concession, the parties may obtain a prompt resolution of criminal
proceedings. The plea bargain, or negotiated sentence, avoids the delay
and uncertainties of trial and appeal and permits swift and certain
punishment of law violators with a sentence tailored to the circumstances
of the case at hand. The Supreme Court has upheld the practice of plea
bargaining, and has stated that a prosecutor’s office should act in good
faith during this process—that is, not making promises regarding
sentencing recommendations and then reneging on those promises after a
defendant pleads guilty, even when a different prosecutor takes over a case
after an original prosecutor has agreed to a plea bargain.76
Pretrial Discovery
The courts have long recognized a prosecutorial duty to disclose
exculpatory information (i.e., information that tends to vindicate the
accused) to the defense. This is based on the fundamental concept of our
system of justice that individuals accused of crimes must be treated fairly.
In Brady v. Maryland (1963), the Supreme Court stated that “the
suppression by the prosecution of evidence favorable to the accused upon
request violates due process where the evidence is material either to guilt
or punishment, irrespective of the good faith or bad faith of the
prosecution.” 77
The Supreme Court also has held that, in addition to substantive
exculpatory evidence, evidence tending to impeach the credibility of
prosecution witnesses falls within Brady’s definition of evidence favorable
to an accused. Therefore, under Brady, a defendant is entitled to disclosure
of information that might be used to impeach government witnesses.
Generally, the defense must request the disclosure of the exculpatory
evidence. However, if the defense is unaware of the existence of the
evidence, such a request is impossible. The Supreme Court has held that
failure to request disclosure is not necessarily fatal to a later challenge
based on Brady v. Maryland, but it may significantly affect the standard
for determining materiality. In a similar vein, it has been held to be a
denial of due process if a prosecutor knowingly allows perjured testimony
to be used against the accused.78
Most states have now adopted liberal rules pertaining to pretrial
discovery, rules designed to avoid unfairness to the defense. Using
appropriate pretrial motions, the defense and prosecution can gain access
to the evidence possessed by the opposing party. Much of this is
accomplished by taking depositions of prospective witnesses. Discovery in
a criminal case is somewhat more limited in federal than in state courts.
Under the provisions of 18 U.S.C. §3500, a federal criminal defendant is
not entitled to inspect a statement or report prepared by a government
witness “until said witness has testified on direct examination in the trial of
the case.” After a witness testifies, the government, upon proper request of
the defense, must then produce that portion of any statement or report that
relates to the subject matter as to which the witness has testified. The
federal statute is commonly referred to as the Jencks Act because its effect
was first recognized by the Supreme Court in Jencks v. United States
(1957).79
Jury Instructions
At the close of all the evidence in a jury trial, it is customary for the trial
judge to confer with counsel outside the presence of the jury concerning
the instructions on the law the judge will give to the jury. The prosecutor
and defense counsel may be asked to present proposed instructions for the
court to consider. More commonly, the trial judge announces that the court
will give certain standard instructions and offers to supplement them with
specific instructions to be chosen from those submitted by counsel. A
defendant is entitled to have the jury instructed on the law applicable to
any legitimate theory of defense that is supported by the evidence
presented.
Closing Arguments
Each side in a criminal trial is allowed to make a closing argument.
Usually, counsel waive the right to make a closing argument to the judge
in a bench trial, but in a jury trial closing argument affords counsel an
important opportunity to attempt to convince the jury of the merits of
counsel’s position. In their closing arguments, counsel may comment on
the evidence and credibility of the witnesses but are not permitted to
express their personal opinions on the defendant’s guilt or innocence.
Typically, at the conclusion of the closing arguments, the judge either
reads the indictment or information or explains the charges against the
defendant to the jury. This is followed by an admonition that the defendant
is presumed innocent unless and until the government proves the defendant
guilty beyond a reasonable doubt of each element of the crime. The judge
defines the elements of any crime charged and explains any technical legal
terms. Where the jury may convict the defendant of a lesser offense or an
attempt, the judge must define the crime, any lesser included offenses, and
attempts. For example, where the defendant is charged with first-degree
murder, the judge must instruct the jury on such lesser offenses as second-
degree murder and manslaughter.
Jury instructions are given orally, and in some instances the jury is
given a copy of the instructions. The clerk furnishes the jury forms of
verdicts so they may find the defendant not guilty, guilty as charged, or
guilty of some degree of the offense charged or of a lesser included
offense. In federal criminal trials and in most state courts, the judge
explains the requirement for a unanimous verdict. In some states, the judge
is required to inform the jury of the penalties that can be imposed for the
offense charged. Finally, the jury is directed to retire, select one of its
members as foreperson, and deliberate on its verdict. Normally, a jury is
allowed to take with it to the jury room all exhibits received in evidence.
SENTENCING
Sentencing Guidelines
In the face of considerable criticism of the exercise of judicial discretion,
which often resulted in great disparities in sentences, Congress and a
number of state legislatures adopted sentencing guidelines. Some states
have adopted voluntary guidelines; others have mandated that sentencing
conform to guidelines absent a compelling reason for departing from them.
The federal guidelines came into being with the enactment of the
Sentencing Reform Act of 1984, which applies to all crimes committed
after November 1, 1987.105 The Act created the United States Sentencing
Commission and empowered it to promulgate sentencing guidelines. The
resulting guidelines drastically reduced the discretion of federal judges by
establishing a narrow sentencing range with the proviso that the sentencing
court may depart from the guidelines if it “finds that there exists an
aggravating or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration… in formulating the guidelines that
should result in a sentence different from that described.” Of course, it is
impermissible to depart from the guidelines on the basis of the defendant’s
race, sex, national origin, religion, or socioeconomic status. Other factors
not ordinarily deemed relevant in determining whether to depart include
the defendant’s age, education, mental and physical condition,
employment history, and family and community ties.
Congress intended the federal sentencing guidelines to be mandatory.
But in 2005, the Supreme Court held that the guidelines violated a
defendant’s Sixth Amendment right to trial by jury because they
authorized judges to increase sentences based on factual determinations
not made by juries. The Court’s decision effectively relegated the
guidelines to a supplementary role. Although federal courts are no longer
required to use the sentencing guidelines, many still tend to follow them as
“advisory.” 106
States have experimented with sentencing guidelines with varying
results. Minnesota, the first state to adopt presumptive sentencing
guidelines in 1970, has a relatively simple system that has proven to be
workable, although it has resulted in a higher incarceration rate.
Washington’s sentencing guidelines worked reasonably well until the state
legislature began to mandate increased penalties overall as well as harsher
minimum sentences for particular crimes. This has necessitated that the
guidelines be revised. In Tennessee, the Commission that established
sentencing guidelines was terminated, although the guidelines themselves
remain in effect.
There is still considerable uncertainty about the efficacy of sentencing
guidelines. There is evidence that they have reduced unwarranted
sentencing disparities, but clearly they have not eliminated this problem
altogether. There is also concern that sentencing guidelines have promoted
higher incarceration rates and have thus contributed to the problem of
prison overcrowding.
Restitution
Restitution refers to “the return of a sum of money, an object, or the value
of an object which the defendant wrongfully obtained in the course of
committing the crime.” 127 Although restitution was practiced under the
early common law, it eventually was abandoned as a remedy in criminal
cases in favor of fines payable to the Crown. In modern America,
however, restitution is making a comeback in the criminal law. A number
of states have enacted laws allowing trial courts to require restitution as a
condition of probation, in lieu of sentencing offenders to prison.
Restitution is not practical in many criminal cases. Many offenders are
not suited to probation and, even among those who are, there is no
guarantee that they will be able to make payments to the victim.
Recognizing this problem, a number of states have established victims’
compensation commissions. For example, the Florida Crimes
Compensation Act of 1977 makes victims and certain relatives eligible for
compensation by a state commission where a crime results in injuries and
is reported within seventy-two hours. Awards are limited to meeting the
actual needs of victims.128
THE APPEALS PROCESS
The U.S. Constitution grants Congress the authority to regulate the armed
forces.141 Pursuant to this authority, Congress has enacted the Uniform
Code of Military Justice (UCMJ).142 The UCMJ gives courts-martial
jurisdiction to try all offenses under the Code committed by military
personnel in violation of the UCMJ.143 (In Chapter 4 we mentioned some
of the offenses unique to military service.) In Solorio v. United States, the
Supreme Court noted that active military personnel can be subjected to
court martial proceedings even for criminal activity that is unrelated to
military service.144 However, Reserve Officer Training Corps (ROTC)
cadets at colleges and universities are not subject to the UCMJ unless
placed on specific active duty orders, which normally occurs for summer
training
Under an executive order issued by President George W. Bush on
November 13, 2001, foreign nationals accused of acts of terrorism against
the United States were to be tried by special military commissions.
However, in Hamdan v. Rumsfeld (2006),145 the Supreme Court ruled that
the commissions created pursuant to the President’s order were neither
authorized by federal law nor required by military necessity, and ran afoul
of the Geneva Conventions. In 2008, in Boumediene v. Bush, 146 the
Supreme Court went a step further and noted that prisoners held at the U.S.
military facility at Guantanamo Bay were entitled to the basic protections
of habeas corpus regardless of the prisoners’ national origin.
Preferral of Charges
Article 30 of the UCMJ authorizes any person subject to the UCMJ to
prefer charges against a person subject to the UCMJ. In practice, it is the
accused’s immediate commander, after preliminary investigation, who
files sworn charges against the accused. Whether such charges will be tried
becomes a matter for the convening authority who exercises discretion as
to whether to refer such charges for a court-martial.
Pretrial Proceedings
An accused must be brought to trial within 120 days after notice to the
accused of preferral of charges, or the imposition of restraint, whichever is
earlier. Absent delays occasioned by the defense, a violation of the right to
a speedy trial is presumed if a service member is confined for more than
ninety days before trial. Military and civilian defendants enjoy the right to
a public trial, and those seeking to close a trial to the public must advance
some “overriding interest,” such as national security interests.
Pretrial Confinement
Although there is no right to bail in the military justice system, the UCMJ
calls for pretrial confinement only as a last resort. In any event, the
military services have a reputation for conducting prompt trials. A
serviceperson is ordered into pretrial confinement only if the commander
has probable cause to believe that the accused has committed an offense
and that it is necessary to confine the accused to ensure that he or she will
appear at trial, or that it is foreseeable that the accused will engage in
serious misconduct, and that less severe forms of restraint would be
inadequate. The commander’s decision to order an accused into pretrial
confinement must be reviewed promptly by a neutral and detached officer.
The accused may appear with counsel and make a statement, if practicable.
The reviewing officer must either approve continued pretrial confinement
or order the prisoner to be immediately released.
Courts-Martial
Commanders of various military units convene court-martial proceedings
and appoint military members who then sit similar to a civilian jury. These
commanders are called the convening authorities and are assisted by
military lawyers designated as staff judge advocates. Military trial
procedures and rules of evidence are similar to the rules applied in federal
district courts.
There are three classes of court-martial: summary, special, and general.
The summary court-martial is composed of one military officer with
jurisdiction to impose minor punishments over enlisted personnel. It is
somewhat analogous to trial by a civilian magistrate, whereas special and
general court-martial proceedings are formal military tribunals more
analogous to civilian criminal courts of record.
A special court-martial must be composed of three or more members
with or without a military judge, or a military judge alone, if requested by
the accused. It can impose more serious punishments on both officers and
enlisted personnel. A general court-martial tries the most serious offenses
and must consist of five or more members and a military judge (or a
military judge alone, if requested by the accused).
A general court-martial may try any offense made punishable by the
UCMJ and may impose any punishment authorized by law against officers
and enlisted personnel, including death for a capital offense. Trial by a
military judge alone is not permitted in capital cases. Before charges are
sent to a general court-martial, an investigation (called an Article 32
investigation) somewhat akin to that undertaken by the civilian grand jury
is conducted by a military officer who makes a nonbinding
recommendation concerning the disposition of the charges.
A military judge presides at special and general courts-martial. A trial
counsel serves as prosecutor, and a defendant is furnished legal counsel by
the government unless the accused chooses to employ private defense
counsel. If less than two-thirds of the members vote for a finding of guilty
—or, when the death penalty is mandatory, fewer than all the members
vote for a finding of guilty—a finding of not guilty results as to the
particular charge. The extent of punishment that may be imposed varies
according to the offense and the authority of the type of court-martial
convened. Punishment may include confinement, reduction in pay grade,
and/or discharge under less-than-honorable conditions.
CONCLUSION
KEY TERMS
affiant
affidavit
aggravating factors
allocution
anonymous tips
appeal of right
arraignment
arrest warrant
automobile exception
bail
bench trial
bifurcated trial
border searches
capias
challenges for cause
child-shield statutes
citation
closing argument
collateral attack
confidential informants
consent to a search
convening authorities
Court of Appeals for the Armed Forces
criminal procedure
deadlocked jury
death qualification of a jury
definite sentencing
deposition
derivative evidence
determinate sentencing
directed verdict
discretionary review
doctrine of harmless error
drug courier profiles
drug testing
electronic eavesdropping
emergency searches
evanescent evidence
excessive bail
exclusionary rule
exculpatory information
exigent circumstances
federal habeas corpus review
foreperson
fruit of the poisonous tree doctrine
fundamental errors
general court-martial
good-faith exception
grand jury
habitual offenders
hot pursuit
immunity
impeachment
indefinite sentencing
independent source doctrine
indeterminate sentencing
indictment
information
initial appearance
inventory search
investigatory detention
Jencks Act
judgment of acquittal
jury instructions
jury trial
leading questions
mandatory sentencing
military courts of review
military judge
mitigating factors
motion for change of venue
motion for continuance
motion to dismiss
motion to suppress
no contest plea
opening statements
parole
parole revocation hearings
peremptory challenges
plain view
plea bargain
plea bargaining
plea of guilty
plea of not guilty
post-conviction relief
power of contempt
preliminary hearing
presentence investigation
pretrial detention
pretrial discovery
pretrial motions
pretrial release
prison disciplinary hearings
probable cause
pronouncement of sentence
proof beyond a reasonable doubt
prosecutorial discretion
public defender
public safety exception
reasonable expectation of privacy
reasonable suspicion
restitution
right of confrontation
right of cross-examination
right to a speedy trial
right to counsel
search
search incident to a lawful arrest
seizure
selective prosecution
self-representation
sentencing guidelines
sentencing hearing
sequestration
sobriety checkpoints
special court-martial
stop-and-frisk
strip searches
subpoena
summary court-martial
summary justice
summons
suspended sentence
“three strikes and you’re out”
totality of circumstances
transactional immunity
trial de novo
Uniform Code of Military Justice
use immunity
venire
victim impact evidence
voir dire
warrant
warrantless arrest
warrantless searches
wiretapping
writ of habeas corpus
ENDNOTES
1. Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 1361, 93 L. Ed. 1782, 1785 (1949).
2. See Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998); and
Minnesota v. Olsen, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990).
3. Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960).
4. California v. Greenwood, 1981 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988).
5. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
6. Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996).
7. Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968).
8. U.S. v Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).
9. Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006).
10. Fernandez v. California, 573 U.S. ___, 134 S. Ct. 1126, 188 L.Ed2d 25 (2014).
11. 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
12. United States v. Jones 132 S.Ct. 945 (2012).
13. Riley v. California, 573 U.S. ___, 134 S. Ct. 2473, 1899 L. Ed. 2d 430 (2014); this case was
combined with the case of U.S. v. Wurie.
14. Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed. 2d 258 (2006).
15. Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). See also Florence v.
Board of Chosen Freeholders, 566 U.S. ____, 132 S. Ct. 1510, 182 L. Ed. 2d 566 (2012); this
case extended such strip searches to those arrested for minor offenses.
16. Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013).
17. City of Ontario v. Quon, 560 U.S. 746, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010).
18. Skinner v. Railway Labor Executives Association, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed.
2d 639 (1989).
19. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed.
2d 685 (1989).
20. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 112
(1990).
21. Indianapolis v. Edmonds, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).
22. Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
23. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
24. Id. However, some states continue to request that the credibility of anonymous informants be
assessed more vigorously, on an individual case-by-case basis. These states (AK, MA, NY,
TN, VM, and WA) are said to utilize the Aguilar-Spinelli standard, which is derived from two
Supreme Court cases that pre-dated Illinois v. Gates. See Aguilar v. Texas, 378 U.S. 108, 84 S.
Ct. 1509, 12 L. Ed. 2d 723 (1964); and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584,
21 L. Ed. 2d 637 (1969).
25. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
26. California v. Ciraolo, 476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986); Kyllo v. U.S.,
533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).
27. For discussion of the “emergency aid” exception, see Michigan v. Fisher, 558 U.S. 45, 130 S.
Ct. 546, 175 L. Ed. 2d 410 (2009) and Brigham City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943,
164 L. Ed. 2d 650 (2006).
28. Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011).
29. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
30. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925).
31. Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979).
32. Florida v. Harris, 568 U.S. ___, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (2013).
33. Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013).
34. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). This decision was
buttressed when the Supreme Court placed limits on searches of an arrestee’s vehicle in
Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
35. Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014).
36. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967).
37. South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).
38. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The officer's ability to ask
for identification is justified by the following case: Hiibel v. Sixth Judicial District Court of
Nevada, 542 U.S. 177, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004).
39. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993).
40. New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985).
41. Safford Unified School District v. Redding, 557 U.S. 364, 129 S. Ct. 2633, 174 L. Ed. 2d 354
(2009).
42. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995). This
principle was extended from sports teams to all extracurricular activities in Board of
Education v. Earls, 536 U.S. 822, 122 S. Ct. 2559, 153 L. Ed. 2d 735 (2002).
43. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed.
2d 685 (1989).
44. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914).
45. 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
46. United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Massachusetts
v. Sheppard, 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984).
47. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
48. See Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). The
Court stated that an officer must have probable cause to suggest that what is touched during a
pat-down amounts to contraband.
49. United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).
50. Arizona v. United States, 567 U.S. ___, 132 S. Ct. 2492, 183 L. Ed. 2d 351 (2012).
51. Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897).
52. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
53. 18 U.S.C. §3501.
54. Dickerson v. United States, 166 F.3d 667 (4th Cir. 1999).
55. United States v. Dickerson, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).
56. Berghuis, Warden v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010).
57. Salinas v. Texas, 570 U.S. ___, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013).
58. Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010).
59. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
60. Segurra v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).
61. New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984).
62. Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402.
63. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
64. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
65. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 796, 9 L. Ed. 2d 799, 805 (1963).
66. Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).
67. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
68. McKaskle v. Wiggins, 465 U.S. 168, 183-184, 104 S. Ct. 944, 954, 79 L. Ed. 2d 122, 136-137
(1984).
69. County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991).
70. Stack v. Boyle, 342 U.S. 1, 5, 72 S. Ct. 1, 3, 96 L. Ed. 3, 6 (1951).
71. United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).
72. 18 U.S.C. §3141 et seq.
73. Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962).
74. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).
75. Skilling v. United States, 561 U.S. ___, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010).
76. Santobello v. New York, 404 U.S. 257, 260, 92 S. Ct. 495, 498, 30 L. Ed. 2d 427, 432 (1971).
77. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1996, 10 L. Ed. 2d 215, 218 (1963).
78. Stickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999).
79. 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957).
80. Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967).
81. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
82. 18 U.S.C. §3161.
83. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
84. United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998).
85. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
86. Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988).
87. 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).
88. In Re Gault was a Supreme Court case that did grant basic due process rights, such as fair
notice, fair hearing, right to confront witnesses, and right to counsel, to accused juveniles. 387
U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).
89. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974).
90. Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970).
91. In Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970), the Supreme
Court upheld the use of six-person juries in the trial of felony offenses in Florida.
Subsequently, in Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978),
the Court held that a jury of only five persons was not acceptable under the Sixth Amendment.
92. See Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972); Burch v.
Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979).
93. Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986).
94. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973
(1980).
95. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).
96. Blueford v. Arkansas, 560 U.S. ___, 132 S. Ct. 2044, 182 L. Ed. 2d 937 (2012).
97. Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967).
98. See 21 U.S.C. §841(b)(1)(A).
99. Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980).
100. Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983).
101. People v. Romero, 53 Cal. Rptr. 2d 789 (Cal. App. 1996).
102. Pub. L. No. 103-322, 108 Stat. 1796.
103. Wisconsin v. Mitchell, 508 U.S. 476, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993).
104. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
105. Codified at 18 U.S.C. §§3551-3586, 28 U.S.C. §§991-998.
106. United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
107. 18 U.S.C. §3561.
108. 18 U.S.C. §3563.
109. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
110. 18 U.S.C. §3006A.
111. Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976).
112. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).
113. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
114. 18 U.S.C. §3006A; Baldwin v. Benson, 584 F.2d 953 (10th Cir. 1978).
115. 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
116. 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
117. In three states (Connecticut, Maryland, New Mexico), capital punishment has been abolished
but inmates previously sentenced to death remain eligible for execution.
118. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).
119. Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
120. Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641; 171 L. Ed. 2d 525 (2008).
121. Jones v. Chappell, U.S. District Court Central District of California, July 16, 2014.
122. Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991).
123. Kelly v. California, 555 U.S. 1020, 129 S. Ct. 564, 172 L. Ed. 2d 445 (2008).
124. Ryan, et al. v. Wood, 573 U.S.; order released July 22, 2014; available at:
http://www.supremecourt.gov/orders/court orders/072214zr1_m6io.pdf.
125. Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420.
126. See, e.g., Cal. Penal Code §679.
127. State v. Stalheim, 552 P.2d 829, 832 (Or. 1976).
128. Fla. Stat. Ann. §§960.001-960.297.
129. McKane v. Durston, 153 U.S. 684, 14 S. Ct. 913, 38 L. Ed. 867 (1894).
130. Fisher v. United States, 328 U.S. 463, 66 S. Ct. 1318, 90 L. Ed. 1382 (1946).
131. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
132. Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963).
133. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974).
134. 1 Stat. 82 (1789).
135. Habeas Corpus Act of 1867, 14 Stat. 385, 386 (1867).
136. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
137. Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).
138. Pub. L. No. 104-132, 110 Stat. 1214.
139. Felker v. Turpin, 518 U.S. 1047, 117 S. Ct. 25, 135 L. Ed. 2d 1119 (1996).
140. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
141. U.S. Const. art. I, §8.
142. 10 U.S.C. §§801-940.
143. Solorio v. United States, 483 U.S. 435, 107 S. Ct. 2924, 97 L. Ed. 2d 364 (1987).
144. Solorio v. United States, 483 U.S. 435, 107 S. Ct. 2924, 97 L. Ed. 2d 364 (1987).
145. 548 U.S. 557, 126 S. Ct. 2749, 165 L. Ed. 2d 723 (2006).
146. Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 171 L. Ed. 2d 41 (2008).
147. 11 C.M.A. 428, 430, 29 C.M.R. 244, 246 (1960).
■ Chapter 11: Legislation
■ Chapter 12: Administrative Law and Procedure
LEARNING OBJECTIVES
CHAPTER OUTLINE
Introduction
Constitutional Authority to Legislate
Antitrust Law
Banking and Securities
Labor Law
Social Welfare Legislation
Civil Rights Legislation
Environmental Legislation
National Security Legislation
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
During the last century, the role of government at all levels changed
dramatically. The industrial revolution of the nineteenth century and the
technological revolution of the twentieth century gave rise to new demands
on government and on the legal system. Many of these demands have
resulted in the adoption by Congress and the state legislatures of new
statutes regulating specific areas of economic activity and providing social
benefits. As a result, the fabric of American law has been altered
dramatically. In this chapter, we examine some of the more prominent
areas of modern legislation, including antitrust law, banking and securities
law, social insurance and welfare legislation, civil rights statutes,
environmental law, and national security. Due to constraints of space, our
treatment will focus entirely on federal legislation. The student should be
aware, though, that in addition to having their own legislative approaches,
many states have adopted their own counterparts to these federal statutes.
ANTITRUST LAW
One of the undesirable by-products of the tremendous economic expansion
of the late nineteenth century was the emergence of monopolies or near-
monopolies in a number of major industries, most notably oil refining,
mining, and manufacturing. These monopolies, or “trusts,” came about as
corporations were consolidated by exchanging stock for “trust
certificates.” The monopolies were able to dictate prices in the
marketplace, as there was little competition to exert downward pressures
on prices. When a competitor arose, the monopoly could force it out of
business by selling goods at a loss. Once the competitor was vanquished,
prices would return to artificially high levels. The victims of the trusts
were not only the would-be competitors, but also the consumers who had
to pay artificially high prices for goods.
The common law had prohibited contracts that had the effect of
restraining trade, but in practice, American courts did little to stem the
emergence of the monopolies. The doctrine of laissez-faire, which was
widely adopted in the business community, held that government should
refrain from interfering in the workings of the economy. But increasingly,
the public demanded that the government intervene to prevent and
dismantle monopolies. In 1890, Congress enacted the Sherman Antitrust
Act, the cornerstone of American antitrust law.5 The Act was adopted
with almost unanimous support in both houses of Congress. The Sherman
Act contained two sections. Section 1 prohibited contracts, combinations,
or conspiracies in restraint of trade; Section 2 prohibited individuals from
monopolizing or attempting to monopolize particular areas of interstate
commerce. Violations of either section were punishable by fines of up to
$5,000 and/or incarceration for up to a year.6 Of course, today, penalties
are much more stringent.
In 1910, in its first great antitrust decision, the Supreme Court upheld a
federal district court order dissolving the Standard Oil Company into
thirty-three separate companies.7 Still, many believed that federal antitrust
law needed to be strengthened. Congress responded by adopting the
Clayton Act of 1914.8 The Clayton Act prohibited price discrimination—
charging similarly situated buyers different prices for the same goods or
services. It also proscribed sales contracts that contained provisions that
buyers no longer deal with the seller’s competitors. Finally, the Clayton
Act outlawed interlocking directorates, the practice of having the same
members serve on boards of directors of competing companies. However,
these practices were not prohibited per se but only to the extent that they
worked to “substantially lessen competition” or “tend[ed] to create a
monopoly.” This language permitted the courts broad discretion in
applying the prohibitions of the statute.9 The Robinson-Patman Act of
1936 amended the Clayton Act to deal specifically with price
discrimination.10 It prohibited any firm engaged in interstate commerce
from selling the same commodity at different prices to different purchasers
when the effect would be to lessen competition or to create a monopoly.
In 1914, Congress also enacted the Federal Trade Commission Act,
which prohibited “unfair methods of competition… and unfair or
deceptive acts or practices in or affecting commerce.” 11 The Act
established a new federal regulatory agency, the Federal Trade
Commission (FTC), to enforce federal antitrust laws. Congress gave the
FTC rulemaking authority, which means that it can implement the general
provisions of federal antitrust law by making and enforcing specific rules
for business and industry. (The FTC’s rules are located in Title 16 of the
Code of Federal Regulations.) FTC rules, as well as federal court
decisions, help to clarify the rather vague terms of federal antitrust law—
terms such as “unfair competition,” “restraint of trade,” “collusion,” and
“intent to monopolize.”
CASE IN POINT
Securities Legislation
The stock market crash of 1929 and the Great Depression that followed
greatly undermined public confidence in the nation’s capital markets. To
reestablish faith in public offerings of securities and to protect investors,
Congress enacted the Securities Act of 193319 and the Securities Exchange
Act of 1934.20
The 1933 Act is designed to ensure that investors receive truthful
information concerning securities. It requires securities to be registered
before being offered for sale through the mails, on securities exchanges, or
through any other facility of interstate commerce. It allows certain
exemptions for securities offered and sold exclusively to residents of the
issuer’s state; however, states usually have their own laws, often called
“Blue-sky laws,” that frequently parallel federal laws and regulations. The
1933 Act defines “securities” to include notes, stocks, bonds, investment
contracts, and so forth, but does not define an “investment contract.” The
U.S. Supreme Court has interpreted that term very broadly, stating that an
investment contract means “a contract, transaction or scheme whereby a
person invests his money in a common enterprise and is led to expect
profits solely from the efforts of the promoter or a third party, it being
immaterial whether the shares in the enterprise are evidenced by formal
certificates.…” 21
The 1934 Act established the Securities and Exchange Commission
(SEC) to enforce this new legislation and set standards for fair dealing and
trading in securities. The SEC is headed by five Commissioners who are
appointed to five-year terms by the President with the consent of the
Senate. The SEC enforces statutory requirements and promulgates
regulations consistent with those requirements. For example, the SEC’s
Rule 10(b) stipulates that “insiders” who have material information about a
company must refrain from dealing in the company’s securities until such
information is available to the general public. To enforce the securities
laws, the SEC can file civil suits, invoke its own administrative processes,
or refer matters to the Justice Department for criminal prosecution.
LABOR LAW
Since the late nineteenth century, labor rights activists had been trying to
form unions to strengthen the bargaining position of workers in mines,
mills, and factories. These efforts were steadfastly resisted by
management, which regarded labor unions as a form of creeping socialism.
The courts tended to side with management when strikes or boycotts
threatened to disrupt production. For example, in 1911 the Supreme Court
upheld an injunction against a union that had called for a boycott of the
employer.26 The Great Depression and the ensuing New Deal would
forever change the legal status of organized labor.
The four dissenters in the case thought that Congress had clearly
transcended its power to regulate interstate commerce. They argued that if
Congress could regulate labor relations under the Commerce Clause, then
nothing was beyond the scope of Congress’s legislative power.
Additionally, they believed that the Wagner Act interfered with
employers’ freedom to enter into contracts with individuals regarding the
terms and conditions of labor. While this view had earlier prevailed in the
Supreme Court,31 by 1937 the Court was prepared to relinquish this
position in favor of a more modern interpretation of the law.
The Taft-Hartley Act
As the result of the passage of the Wagner Act and its validation by the
Supreme Court, labor unions and collective bargaining became staples of
the American economy. In 1947, Congress passed a second statute of
immense importance in this field. A more conservative piece of legislation,
the Taft-Hartley Act imposed limits on organized labor.32 Specifically, the
Act prohibited “closed shops,” a policy under which one’s job is
contingent on belonging to the union. The Act also prohibited secondary
boycotts, where striking workers take action against third-party suppliers
or buyers that deal with the company being struck. Finally, Taft-Hartley
allowed the President to impose an eighty-day “cooling off period” when a
strike created a national emergency. Proponents of Taft-Hartley saw it as a
necessary correction to the excesses permitted by the Wagner Act. On the
other hand, organized labor has always considered the Taft-Hartley Act as
one of two major impediments to unionization in this country, the other
being the right to work laws enacted by twenty-two states. These laws
forbid labor unions and companies from establishing union security
agreements under which all workers who benefit from union
representation are required to share the cost of maintaining the union, even
if they decide to remain non-members.
Social Security
Without question, the most important piece of legislation to emerge from
the New Deal was the Social Security Act of 1935.34 Never intended as a
“welfare program,” social security was designed as social insurance.
Essentially, it works like this: employers withhold a portion of their
employees’ wages, match these amounts, and transfer these sums to the
government. Self-employed individuals pay into the system at a higher
rate. The government places social security receipts in a trust fund from
which benefits are paid to retirees and surviving spouses and dependents,
as well as to workers who have become disabled. The amount of
retirement benefits one receives is a function of how much one has paid
into the system.
Social security was conceived at a time when relatively few Americans
invested money for retirement. The program was designed to ensure that
Americans would not have to spend their retirement years in poverty. The
Supreme Court upheld the new social security program against a
constitutional challenge in 1937.35 Since then, what was conceived as a
grand experiment has become an almost sacred institution in this country.
Politicians are loath to discuss the issue, let alone consider serious reform
of the system, which is facing potential insolvency due to the impending
retirement of the Baby Boom generation.
The Social Security Amendments of 1954 created a federal disability
insurance program. This program has considerably reduced the economic
insecurity of American workers, and it also has generated considerable
business for lawyers. Some lawyers specialize in assisting citizens with
disability claims filed with the Social Security Administration. To receive
benefits under the Social Security Disability program, a person must have
a physical or mental health problem that is severe enough to prevent them
from working in an income-producing job for at least one year. One of the
more interesting legal issues in this field is what constitutes a physical or
mental disability. During President Clinton’s first term, the Social Security
Administration recognized alcoholism and drug abuse as disabilities, a
policy that generated sizable political controversy. Critics claimed that the
federal government was subsidizing alcohol and drug abuse. Currently, as
a result of the Contract With America Advancement Act of 1996,36 people
are not eligible for disability benefits if drug or alcohol abuse is a
“material factor” in their disability.
Unemployment Compensation
Another important program established by the Social Security Act of 1935
was a federal program to provide temporary benefits to workers who
become unemployed through no fault of their own. The program was
designed to give an unemployed worker time to find a new job without
suffering major financial distress. Although unemployment
compensation programs are actually administered by state agencies (a la
Medicaid), the program is funded through a combination of federal and
state taxes that are levied on employers. States also determine eligibility
requirements and levels of benefits, although the minimum benefits are set
by federal law. The federal courts also have imposed constitutional
constraints on state unemployment programs. States may not deny
unemployment benefits to workers who are fired for refusing to work in a
manner that violates their religious beliefs, even if they adopted those
beliefs after taking their jobs.49 Nor may states deny compensation to
women fired solely because they became pregnant or chose to terminate
their pregnancy.50
Welfare
In the decades following the Second World War, the world’s advanced
democracies established welfare programs to assist the poor. For many
years, the basic component of welfare in this country was Aid to Families
with Dependent Children (AFDC), a program that had its genesis in the
Social Security Act of 1935. AFDC provided cash benefits to families with
children deprived of parental support. Like Medicaid and unemployment
compensation, AFDC was set up on the model of cooperative federalism
—most of the money came from the federal government while the states
actually administered the program and set eligibility requirements and
benefits within parameters established by federal law.
As in the case of unemployment compensation, the federal courts have
imposed constraints on state operation of welfare programs. Although the
courts have never held that there is a constitutional right to welfare,
benefits cannot be terminated without due process of law.51 And, states
may not discriminate against new residents in providing access to
benefits.52
Welfare has never been particularly popular, as taxpayers have always
been suspicious of those who remain on welfare over the long term. In the
1980s and 1990s, conservative social critics decried the existence of a
large underclass that had become permanently dependent on government
for its subsistence. Critics also voiced concern about the effect of welfare
entitlements on family life, in that men might abandon their parental
responsibilities knowing that their children and the mothers of their
children could subsist on welfare. These concerns led to demands for
welfare reform, which was accomplished with bipartisan support in 1996.
Under the Responsibility and Work Opportunity Reconciliation Act of
1996,53 AFDC was renamed Temporary Assistance to Needy Families
(TANF). Under TANF, welfare is no longer an open-ended personal
entitlement—five years is the maximum that a recipient can be paid from
federal funds. During this period, recipients must demonstrate that they are
making reasonable efforts to secure employment and must avail
themselves of job training programs. Of course, states are free to
supplement federal assistance with their own programs, which they control
entirely. The implementation of welfare reform caused the nation’s welfare
rolls to be reduced dramatically. Further, the economic boom of the late
1990s, characterized by historically low unemployment, facilitated the
implementation of reform. Time will tell whether these reforms will
survive periods of recession characterized by high unemployment.
The term civil rights legislation refers to the set of laws designed to
ensure that everyone is treated fairly by society. These laws take many
forms, including federal and state constitutional provisions, federal and
state statutes, local ordinances, and regulations adopted by federal, state,
and local government agencies. Perhaps most significant of all are the
rulings of federal and state courts interpreting all of the foregoing. Civil
rights policy is extremely complex, involving conflicts over race, gender,
religion, ethnicity, disability, age, and sexual orientation in areas such as
education, employment, housing, criminal justice, government contracts,
and voting.
The essential purpose of civil rights laws is to prevent and/or provide
remedies for unlawful forms of discrimination. The term discrimination
refers to the denial of equal treatment to a person based on membership in
some recognizable group. Thus, discrimination may be based on race,
gender, ethnicity, religion, age, sexual orientation, socioeconomic status,
or any number of other factors. To say that a particular action, decision, or
policy is discriminatory does not necessarily mean that it is unlawful.
Some forms of discrimination are entirely permissible; others are almost
never so. For example, a licensing law that prohibits untrained individuals
from practicing medicine discriminates against those who have not
completed medical school. Yet there is little question as to the validity of
the licensure requirement. On the other hand, a law that prohibited
members of a particular religious sect from holding public office would
unquestionably be declared invalid. The difference is that there is a
rational basis for the licensure requirement, while the political restriction
based on religion lacks any compelling foundation.
Most contemporary questions of civil rights are not nearly so clear-cut.
Lawmakers and courts struggle with difficult civil rights questions in a
highly-charged political environment. Valid arguments can be made on
both sides of many of these issues. Consider, for instance, the issue of
whether gay men and lesbians should be permitted to serve in the military.
From December 1993 to September 2011, the military’s official policy on
sexual orientation was called “Don’t Ask, Don’t Tell,” which essentially
prohibited openly gay individuals from serving. Some in the military
believed that permitting gay men and lesbians to serve in the military was
bad for morale, discipline, and, ultimately, the ability of the military to
function. Others, both within and outside the military, disagreed with this
assessment. Gay rights activists insisted that gay men and lesbians had as
much of a right, indeed a duty, to serve their country as anyone else. They
compared the ban on openly gay individuals in the military to the racial
segregation that characterized the armed forces prior to and during World
War II. Public opinion was divided on the issue, with many people looking
for a “middle ground,” which effectively became: “Don’t Ask, Don’t
Tell.” That policy, however, was repealed on September 20, 2011, which
allowed gay members of the military to freely discuss their sexual
orientation. This example illustrates that, when it comes to questions of
civil rights, compromise can be difficult to achieve.
CASE IN POINT
Affirmative Action
It is unlikely that Congress intended to allow for any “reverse” or
“corrective” discrimination under the 1964 Civil Rights Act. However,
during the late 1960s and early 1970s, the Act came to be interpreted in
such a way as to allow for preferential treatment of members of racial
minorities in order to bring minorities into the economic mainstream.
President Lyndon Johnson actually issued an executive order that called
for “affirmative action” in federal government hiring.60 In some cases,
African-Americans and members of certain other minority groups were
also accepted into colleges and professional programs on the basis of
lower grades and lower standardized test scores than applied to non-
minorities. Similar preferences were established in employment both in the
public and private sectors. Proponents argued that such policies were
necessary to make up for past discrimination and to enhance the diversity
of the educational experience and the workplace. Opponents characterized
affirmative action as “reverse discrimination,” which they believed
violated the principle of equal opportunity. They sought relief in the courts
under the Equal Protection Clause of the Fourteenth Amendment and,
where applicable, the Civil Rights Act of 1964.
SIDEBAR
CASE IN POINT
Title IX
Another significant enactment in the area of gender discrimination is
Title IX of the Higher Education Amendments of 1972,81 which
authorized the withholding of federal funds from educational institutions
that engage in sex discrimination. The most obvious result of this statute
has been the movement toward gender equity in collegiate athletics,
through which young women across the country have been afforded
opportunities to participate in athletic, competition that was once the sole
province of men.
Specifically, Title IX requires universities to provide extracurricular
opportunities for women in proportionality to the overall female student
population. Thus, a school with a 50 percent female population should
have approximately 50 percent of its overall extracurricular opportunities
reserved for females. Title IX also requires that women’s teams receive
comparable facilities and benefits to those received by men’s teams. A
school can avoid exact proportionality standards if it can demonstrate an
ongoing trend of increasing opportunities for females, or if the school can
demonstrate a lack of interest among female students in participating in
certain extracurricular activities. Ultimately, as a result of Title IX, many
young women who might not otherwise have received a college education
have been able to go to college with an athletic scholarship.
Under President Reagan and the elder President Bush, though,
enforcement of Title IX was less than rigorous. Some have suggested that
this was out of fear that aggressive enforcement may have led to men’s
programs being cut in order to facilitate compliance with the letter of Title
IX’s proportionality requirements. Regardless of the exact reason, the
Office for Civil Rights in the Department of Education, which is primarily
responsible for Title IX enforcement, was not adequately funded to
aggressively pursue Title IX complaints. Consequently, in the 1990s, many
women with Title IX complaints bypassed the OCR and filed suit directly,
often with great success. For example, in 1993, Howard University
women’s basketball coach Sanya Tyler sued Howard for sex
discrimination under Title IX because she was paid substantially less than
the men’s head basketball coach. Tyler’s case broke new ground in that it
resulted in the first monetary award given by a jury in a Title IX case.
Tyler was awarded $2.4 million in damages, although the amount was later
reduced to $250,000.
Sexual Harassment
In the 1980s, the issue of sexual harassment appeared on the public
agenda as a civil rights issue. The sexual harassment issue has been
particularly noticeable on college campuses, where it has entered the
debate over issues related to dating, dormitory visitation, and student-
teacher relationships.
The issue of sexual harassment was aired in a particularly dramatic
fashion when law professor Anita Hill appeared before the Senate
Committee on the Judiciary in October 1991 to make allegations of
misconduct against Clarence Thomas, who had been nominated by
President Bush to serve on the Supreme Court. Hill alleged that Thomas,
when he was chairman of the Equal Employment Opportunity
Commission, made sexual advances toward her, told off-color jokes in her
presence, and generally harassed her in a sexual manner. Thomas
categorically denied the charges. Because there was little supporting
evidence, the Senate ultimately approved Thomas’s nomination to the
Supreme Court. Many women believed that the all-male Senate Judiciary
Committee had been insensitive to Professor Hill and to the whole issue of
sexual harassment. The Clarence Thomas–Anita Hill episode was
apparently one factor that led women in record numbers to run for public
office in 1992.
The Supreme Court itself has played a prominent role in addressing the
problem of sexual harassment. For example, in 1986, the Court ruled that
sexual harassment in the workplace constituted unlawful gender
discrimination in violation of federal civil rights laws.86 Later, in 1993, the
Court adopted a legal standard that made it easier for victims of sexual
harassment to sue in federal court.87 The decision, which was joined by all
nine justices (including Clarence Thomas), came in a case brought by
Teresa Harris, who worked for a truck leasing company in Nashville.
Harris complained that her boss subjected her to repeated comments and
suggestions of a sexual nature. The federal judge who heard the case in
Nashville described the boss’s behavior as vulgar and offensive, but ruled
that it was not likely to have had a serious adverse psychological effect on
the employee. He dismissed the case before it could go to a jury trial. The
U.S. Court of Appeals for the Sixth Circuit upheld the district court’s
ruling. In reversing the lower courts, the Supreme Court, speaking through
Justice Sandra Day O’Connor, said that it was not necessary for a plaintiff
in a sexual harassment case to show “severe psychological injury.” It is
enough that the work environment would be perceived by a reasonable
person as being “hostile or abusive.” The Court’s decision reinstated
Teresa Harris’s complaint, thus allowing the case to go before a jury in the
district court. More importantly, the decision increased the likelihood that
women (and men) who believe that they are victims of sexual harassment
in the workplace will file and win federal lawsuits. Thus, the Supreme
Court effectively put employers on notice that their conduct would be
subject to judicial scrutiny. To avoid litigation, employers should have
appropriate policies and training programs in place and must take
immediate action whenever complaints are filed.
Age Discrimination
Discrimination against the young is usually not legally problematic
because persons below the age of legal majority are presumed not to enjoy
the full rights of citizenship. Most questions of age discrimination involve
elderly Americans who claim that they have been discriminated against.
Federal courts typically employ the rational basis test to determine the
constitutionality of government policies that discriminate on the basis of
age. Most age discrimination cases are not constitutional cases, however.
Rather, they are based on provisions of statutes enacted by Congress and
the state legislatures. In 1967, Congress passed the Age Discrimination in
Employment Act, which bars companies that deal in interstate commerce
or do business with the government from discriminating against their
employees on the basis of age.92 In 1988, Congress passed a measure that
prohibits all organizations that receive federal funds from engaging in age
discrimination.93 Today, there is substantial litigation in the state and
federal courts dealing with age discrimination by employers. These cases
frequently grow out of attempts by companies to save money by
dismissing people who are approaching retirement age. As our society
ages, with people living and working longer, conflicts involving age
discrimination will undoubtedly grow more numerous and more intense.
ENVIRONMENTAL LEGISLATION
One of the more important social developments of the 1960s was the
emergence of the environmental movement. Within a few years, concern
for the environment moved beyond the realm of a few scientists and
activists and into the societal mainstream. Reflecting this new social
awareness, Congress enacted a series of landmark environmental laws
beginning in the late 1960s. In adopting these statutes, Congress relied on
its power to regulate interstate commerce. A question to ponder is whether
a strict reading of the Commerce Clause would support Congress’s
authority in this area. Of course, states can act in this field and many have
done so, either at the behest of Congress or on their initiative.
Consequently, there is now a substantial body of federal and state
environmental law.
SIDEBAR
CASE IN POINT
TVA, THE SNAIL DARTER, AND THE ENDANGERED SPECIES
ACT
TVA v. Hill
United States Supreme Court
437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (1978)
In the aftermath of World War II, Harry Truman signed the National
Security Act of 1947 into law—with the objective of reconfiguring the
United States’ foreign intelligence and national defense infrastructure.103
The law merged the War Department and Navy Department into the
Department of Defense, which was to be overseen by a Secretary of
Defense. Additionally, the National Security Act created the Central
Intelligence Agency (C.I.A.), which was designed to gather intelligence
and direct covert action abroad.
This law also established the National Security Council, a group that
included the President, Vice President, Secretary of State, Secretary of
Defense, Director of the C.I.A., and other key members of the President’s
cabinet. Different presidents have utilized the National Security Council in
different ways, with some using it regularly to help formulate key foreign
policy decisions (such as Eisenhower), and others using it sparingly (such
as John Kennedy and Lyndon Johnson).
CONCLUSION
Since the late 1800s, the federal government has achieved far-reaching
social and economic reforms. This occurred through Congress’s exercise
of its delegated and implied powers and through the Supreme Court’s
broad interpretation of the Constitution’s “Commerce Clause.” Antitrust,
banking, securities, and labor legislation has brought a large measure of
economic stability to the nation’s financial, business, and labor forces.
These policies aided the United States in becoming the world’s financial
and industrial giant. On occasions, the states, through exercise of their
inherent police powers, have served as testing grounds for development of
legislation; in other instances, they have supplemented federal legislative
policies. For example, the Social Security Act and much of the social
welfare legislation emerged in the 1930s as a part of the New Deal during
the presidency of Franklin D. Roosevelt.
After the Civil War, Congress began to enact laws to end discrimination
based on race; however, the real impetus in the struggle to end racial,
gender, age, and disability discrimination awaited the social and cultural
changes of the 1960s, which preceded the enactment of modern civil rights
laws. Legislation that was passed in the latter half of the twentieth century
continues to remain vital today. For example, enactment of the Civil
Rights Act of 1964 represented a significant victory in the struggle for
racial equality. Since then, major legislative, administrative, and judicial
accomplishments have furthered the movement to end discrimination
based on race, gender, age, and disability. Guaranteeing all adults the right
to vote and the right to fairness in housing also has posed major legislative
challenges. Beyond that, with the advent of large numbers of women
entering the work force, legislation has achieved modest gains in the
equality of pay and prohibition of sexual harassment. Obviously,
challenges remain. The struggle to end discrimination continues in
contemporary America, as evidenced by the legislation being continually
offered to support social and cultural changes now occurring in society.
In other contexts, as the nation has moved into an age of technological
advancement, the watchwords of society are to conserve, protect, and
preserve. Along these lines, major federal legislative enactments are still
being tested in an effort to achieve a workable balance between protection
of the environment and private property interests. Ultimately, the design
and enforcement of environmental legislation is a major challenge today
and will remain so in the years to come.
Similar themes also resonate in regard to society’s ability to craft an
appropriate balance between protecting national security and preserving
individual liberties. As the nation tries to respond to the threats posed by
terrorist organizations around the world—many of which are unaffiliated
with formal government entities—new legislation has attempted to provide
officials with the tools necessary for combatting evolving dangers.
Ensuring that such newfound authority does not infringe upon essential
constitutional protections remains an important matter for future
generations.
Baer, Judith, Women in American Law: The Struggle toward Equality from
the New Deal to the Present (2d ed., Holmes and Meier 1996).
Bork, Robert H., The Antitrust Paradox (The Free Press 1993).
Dalton, James A., and Stanford L. Levin (eds.), The Antitrust Dilemma
(Lexington Books 1974).
Davidson, Chandler, and Bernard Grofman (eds.), Quiet Revolution in the
South: The Impact of the Voting Rights Act, 1965-1990 (Princeton
University Press 1994).
Findley, Roger W., and Daniel A. Farber, Environmental Law in a
Nutshell (7th ed., Thomson West 2008).
Frickey, Philip P., Elizabeth Garrett, and William N. Eskridge, Legislation
and Statutory Interpretation (2d ed., Foundation Press 2006).
Goren, William D., Understand the Americans with Disabilities Act (2d
ed., American Bar Association 2007).
Kubasek, Nancy K., and Gary Silverman, Environmental Law (6th ed.,
Prentice-Hall 2007).
McKinnon, Catherine, Sexual Harassment of Working Women (Yale
University Press 1979).
Mezey, Susan Gluck, In Pursuit of Equality: Women, Public Policy and
the Federal Courts (St. Martin’s Press 1992).
Santos, Miguel A., Limits and Scope of Environmental Law (Charles C.
Thomas 1996).
Terry, Evan, Americans with Disabilities Act Facilities Compliance: A
Practical Guide (John Wiley & Sons 1992).
Vietzen, Laurel A., Practical Environmental Law (Aspen Publishers
2008).
KEY TERMS
affirmative action
age discrimination
antitrust law
civil rights legislation
collective bargaining
cooperative federalism
discrimination
discrimination against persons with disabilities
disparate impact
employment discrimination
endangered species
environmental impact statement
environmental law
equal protection of the law
gay rights
gender discrimination
gender equity
gerrymandering
hazardous waste regulations
housing discrimination
managed care
Medicaid
Medicare
monetary policy
places of public accommodation
police power
preclearance
reasonable accommodation
restrictive covenants
right to work laws
sexual harassment
social security
social welfare legislation
unemployment compensation
welfare programs
welfare reform
ENDNOTES
1. 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995).
2. 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000).
3. Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005).3.
4. Printz v. United States, where Congress’ mandate that local law enforcement conduct
background checks for gun purchases was deemed unconstitutional, seems to provide some
limits on the directives that the federal government can provide to state actors. 521 U.S. 898,
117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997).
5. 15 U.S.C. §1 et seq.
6. 26 Stat. 209, chap. 647, U.S. Comp. Stat. 1901, at 3200.
7. Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1910).
8. 15 U.S.C. §12 et seq.
9. See, e.g., United States v. United States Steel Corp., 251 U.S. 417, 40 S. Ct. 293, 64 L. Ed. 343
(1920).
10. 15 U.S.C. §13 et seq.
11. 15 U.S.C. §§41-58.
12. The FTC’s orders are archived at http://www.ftc.gov/os/case list/index.shtm.
13. United States v. American Tel. & Tel. Co., 552 F. Supp. 131 (D.D.C. 1982), affd in Maryland
v. United States, 460 U.S. 1001, 103 S. Ct. 1240, 75 L. Ed. 2d 472 (1983).
14. United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C. 2000).
15. United States v. Microsoft Corp., 97 F. Supp. 2d 59, 64-65 (D.D.C. 2000).
16. United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).
17. Massachusetts v. Microsoft Corp., 373 F.3d 1199 (D.C. Cir. 2004).
18. 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819).
19. See 15 U.S.C. §77a et seq.
20. See 15 U.S.C. §78a et seq.
21. SEC v. W.J. Howey Co., 328 U.S. 293, 298, 66 S. Ct. 1100, 1103, 90 L. Ed. 1244, 1250 (1946).
22. Pub. L. No. 90-321, 82 Stat. 146, codified at 15 U.S.C. §1601 et seq.
23. 12 C.F.R. §226.1(b).
24. Pub. L. No. 95-128, 91 Stat. 1147, 12 U.S.C. §2901 et seq.
25. Pub. L. No. 110-343, div. A (enacted Oct. 3, 2008).
26. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911).
27. Pub. L. No. 74-198, codified at 29 U.S.C. §151 et seq.
28. Hammer v. Dagenhart, 247 U.S. 251, 38 S. Ct. 529, 62 L. Ed. 1101 (1918).
29. N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937).
30. 301 U.S. at 33, 57 S. Ct. at 622, 81 L. Ed. at 909 (1937).
31. See, e.g., Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 45 L. Ed. 937 (1905).
32. Labor Management Relations Act of 1947, 61 Stat. 136, codified at 29 U.S.C. §141 et seq.
33. Codified at 29 U.S.C. §401 et seq.
34. Act of Aug. 14, 1935, 49 Stat. 620.
35. Chas. C. Steward Mach. Co. v. Davis, 301 U.S. 548, 57 S. Ct. 883, 81 L. Ed. 1279 (1937).
36. Pub. L. No. 104-121.
37. See 42 U.S.C. §§1395-1395ccc.
38. See 42 U.S.C. §§1396-1396v.
39. National Federation of Independent Business v. Sebelius, 567 U.S. ___, 132 S. Ct. 2566; 183
L. Ed. 2d 450 (2012).
40. Blake Ellis, “Medicare Paid $23 Million to Dead People,” CNN, November 1, 2013; available
at: http://money.cnn.com/2013/11/01/pf/medicare-deceased/.
41. Codified at 29 U.S.C. §1181 et seq.
42. See http://www.hhs.gov/ocr/hipaa/.
43. Pub. L. 111-148, 124 Stat. 119.
44. National Federation of Independent Business v. Sebelius, 567 U.S. ___, 132 S. Ct. 2566; 183
L. Ed. 2d 450 (2012).
45. Full-time employees are those that work 30 hours or more per week; an employer could also
fall within the scope of these requirements merely by having a substantial number of “full-time
equivalents”; a formula in the law can be used to calculate this figure—essentially to prevent a
business from having an incentive to exclusively employ individuals who work 29 hours per
week.
46. Implementation of this provision has been delayed until 2015.
47. Halbig v. Burwell, U.S. Court of Appeals for the D.C. Circuit, July 22, 2014; full opinion
available at: http://www.cadc.uscourts.gov/internet/opinions.nsf/10125254D91
F8BAC85257D1D004E6176/$file/14-5018-1503850.pdf.
48. King v. Burwell, U.S. Court of Appeals for the 4th Circuit, July 22, 2014; full opinion
available at: http://www.ca4.uscourts.gov/Opinions/Published/141158.P.pdf.
49. Hobbie v. Unemployment Appeals Commn., 480 U.S. 136, 107 S. Ct. 1046, 94 L. Ed. 2d 190
(1987).
50. Wimberly v. Labor & Industrial Relations Commn., 479 U.S. 511, 107 S. Ct. 821, 93 L. Ed. 2d
909 (1987).
51. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).
52. Saenz v. Roe, 526 U.S. 489, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999).
53. Pub. L. No. 104-193.
54. Dred Scott v. Sandford, 19 Howard 393 (1857).
55. Codified at 42 U.S.C. §1985.
56. The Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883).
57. Heart of Atlanta Motel v. United States, 379 U.S. 421, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964);
Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964).
58. Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). In the Civil
Rights Act of 1991, Congress codified the Court’s holding in Griggs. See 42 U.S.C. §2000e-2.
59. Grove City Coll. v. Bell, 465 U.S. 555, 104 S. Ct. 1211, 79 L. Ed. 2d 516 (1984).
60. Executive Order 11246.
61. University of Cal. Bd. of Regents v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750
(1978).
62. United Steelworkers of Am. v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979).
63. 480 U.S. 149, 107 S. Ct. 1053, 1064, 94 L.Ed.2d 203 (1987).
64. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989).
65. Adarand Constructors, Inc. v. Pena, 512 U.S. 1288, 115 S. Ct. 41, 129 L. Ed. 2d 936 (1994).
66. See, e.g., Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
67. Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003).
68. Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003).
69. Schuette v. Coalition to Defend Affirmative Action, 572 U.S. ___, 134 S. Ct. 1623, 188 L. Ed.
2d 613 (2014).
70. Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948).
71. 45 U.S.C. §§3604-3606.
72. Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944).
73. In 1966, the Supreme Court struck down the poll tax in state elections as a violation of the
Fourteenth Amendment Equal Protection Clause. See Harper v. Virginia State Bd. of
Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966).
74. See 42 U.S.C. §1971 et seq.
75. Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); Wesberry v. Sanders,
376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964).
76. Section 5 of the Voting Rights Act of 1965 requires designated states and their political
subdivisions to obtain “preclearance,” either from the Attorney General or from the District
Court for the District of Columbia, before implementing changes in their election systems. See
42 U.S.C. §1973c.
77. Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996).
78. Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 120 S. Ct. 866, 145 L. Ed. 2d 845 (2000).
79. Shelby County v. Holder, 570 U.S. ___, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013). The
decision struck down Section 4(b), which contained the formula for determining which states
would be subject to pre-clearance requirements; in effect, this voided Section 5, which
mandated the pre-clearance.
80. County of Washington v. Gunther, 452 U.S. 161, 101 S. Ct. 2242, 68 L. Ed. 2d 751 (1981).
81. Pub. L. 92-318.
82. Johnson v. Transportation Agency of Santa Clara County, 480 U.S. 616, 107 S. Ct. 1442, 94
L. Ed. 2d 615 (1987).
83. Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984).
84. United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996).
85. Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090
(1982).
86. Meritor Sav. Bank, FBD v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986).
87. Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).
88. Now codified at 29 U.S.C. §701 et seq.
89. Now codified at 20 U.S.C. §1400 et seq.
90. 104 Stat. 337, 42 U.S.C. §12101 et seq.
91. 29 C.F.R. pt. 1630.
92. Now codified at 29 U.S.C. §621 et seq.
93. Now codified at 42 U.S.C. §6101 et seq.
94. 29 U.S.C. §2601 et seq.
95. 42 U.S.C. §§4321-4345.
96. 42 U.S.C. §§7401-7642.
97. 33 U.S.C. §§1251-1270.
98. 33 U.S.C. §1319(c).
99. 16 U.S.C. §§1531-1544.
100. 42 U.S.C. §§6901-6992.
101. 15 U.S.C. §§2601-2671.
102. 42 U.S.C. §§9601-9675.
103. 50 U.S.C. §401 et seq.
104. 50 U.S.C. §403a.
105. 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974).
106. 50 U.S.C. §1801 et seq.
107. Pub. L. 110-261.
108. Evan Perez, “Secret Court’s Oversight Gets Scrutiny,” Wall Street Journal, June 9, 2013;
available at: http://online.wsj.com/news/articles/SB10001424127887324904004578535
670310514616?mg=reno64-wsj&url=http%3A%2F%2F online.wsj.com%2Farticle%2
FSB1000142412788732490 4004578535670310514616.html.
109. Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577; 61 L. Ed. 2d 220 (1979).
110. Pub. L. 107-56.
111. This provision was struck down in 2007 by a U.S. District Court in Oregon.
112. The Bush version was passed and then also struck down by a federal court; the Obama version
was signed into law in 2011.
113. Pub. L. 107-56.
114. Pub. L. 109-177.
115. Pub. L. 112-14
116. H.R. 3304.
117. Pub. L. 107-40; see Chapter 12 for information on this law’s connection to recent drone
strikes.
LEARNING OBJECTIVES
Introduction
Delegation of Legislative Authority
Rulemaking
Agency Investigations
Agency Enforcement Powers
Agency Adjudication
Judicial Review of Agency Actions
Public Access to Agency Information
Government in the Sunshine
The Law of Public Employment
Conclusion
Summary of Key Concepts
For Further Reading
Questions for Thought and Discussion
Key Terms
INTRODUCTION
SIDEBAR
A Constitutional Revolution?
Because he was elected to four terms of office, President Roosevelt was
able to fill eight vacancies on the Supreme Court, effectively remaking the
Court to reflect his political views. As a result, the Court’s orientation
changed dramatically. Beginning in the 1940s, the Court manifested much
more tolerance of delegation of legislative power. In effect, the Court
acknowledged the legitimacy of the modern administrative state. As Cass
Sunstein has noted, President Roosevelt’s remaking the Court “altered the
constitutional system in ways so fundamental as to suggest that a
constitutional amendment had taken place.” 6 Gary Lawson has made the
point more forcefully: “The post-New Deal administrative state is
unconstitutional, and its validation by the legal system amounts to nothing
less than a bloodless constitutional revolution.” 7
Despite numerous opportunities, not since the Schechter decision has
the Court struck down an act of Congress on delegation grounds. In the
early 1980s, certain members of the Court indicated a desire to scrutinize
legislative delegations more carefully. For example, in 1981 the Court
sustained an OSHA “cotton dust” regulation against a challenge from the
textile industry.8 Joined by Chief Justice Warren Burger, Justice William
Rehnquist asserted that in enacting the OSH Act of 1970, Congress
“simply abdicated its responsibility for the making of a fundamental and
most difficult policy choice.” 9 But, a majority of the Court could never be
mustered to rally around Rehnquist’s position.
In 1989, in Mistretta v. United States, 10 eight members of the Court
rejected the argument that Congress had impermissibly delegated its power
to prescribe ranges of criminal sentences that federal judges were required
to impose on persons convicted of crimes. The Court also rejected the
argument that Congress had violated the separation of powers principle by
placing the sentencing commission within the judicial branch and
authorizing it to establish legally binding sentencing guidelines. In a lone
dissent, Justice Antonin Scalia asserted that the separation of powers
principle had been violated, concluding that the new sentencing
commission amounted to a “junior varsity Congress with extensive
lawmaking power.” 11 (See the excerpts from the Mistretta decision in the
Opinion of the Court on page 462.)
The argument over delegation of legislative power is not confined to the
federal level. State courts have wrestled with this problem over the years.
Like the U.S. Supreme Court, though, most state courts have come down
on the side of permitting broad delegations of legislative authority to the
bureaucracy. The nondelegation doctrine remains viable, however, at least
in theory. It remains available as a tool to invalidate a particularly
egregious instance of legislative abdication of responsibility.
RULEMAKING
CASE IN POINT
Under the federal Food, Drug and Cosmetic Act, the Food and Drug
Administration has the authority to regulate “drugs” and “devices.” In
1996, the FDA adopted regulations governing the promotion and labeling
of tobacco products. The regulations were concerned specifically with
making these products less accessible to children and adolescents. The
FDA based its regulatory authority on the grounds that nicotine is a “drug”
and tobacco products are “devices” that deliver nicotine to the body.
Brown and Williamson, a manufacturer of tobacco products, filed suit
challenging the FDA’s authority in this area. The federal district court
upheld the FDA’s authority, but the Court of Appeals reversed, holding
that Congress had not granted the FDA jurisdiction over tobacco products.
Splitting 5-4, the Supreme Court also ruled against the FDA.
Notwithstanding its customary deference to agency interpretations of
statutes, the Court concluded that Congress clearly had not intended to
give the FDA the authority to regulate tobacco products. Of course, as a
matter of statutory interpretation, the Court’s decision can be overturned
by ordinary legislation clearly authorizing the FDA to regulate tobacco.
AGENCY INVESTIGATIONS
CASE IN POINT
Civil Suits
A number of federal agencies have the authority to file civil suits against
violators. For example, the Civil Rights Act of 1964 authorizes the
Department of Justice to file suit to vindicate citizens’ civil rights:
Whenever the Attorney General has reasonable cause to believe that any person or group
of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of
the rights secured by this subchapter, and that the pattern or practice is of such a nature
and is intended to deny the full exercise of the rights herein described, the Attorney
General may bring a civil action in the appropriate district court of the United States by
filing with it a complaint… setting forth facts pertaining to such pattern or practice, and
… requesting such preventive relief, including an application for a permanent or
temporary injunction, restraining order or other order against the person or persons
responsible for such pattern or practice, as he deems necessary to insure the full
enjoyment of the rights herein describe.42
It was under this provision that the Justice Department filed a highly
publicized suit in 1993 against Flagstar Corporation, the operator of
Denny’s Restaurants. The suit alleged racial discrimination against black
patrons. In a settlement, Flagstar paid $45 million in damages and
established a program to prevent future discrimination at its restaurants.43
Often, the civil rights suits filed by the Justice Department are referred
to it by other federal agencies. For example, the Office for Civil Rights
(OCR) in the U.S. Department of Education is responsible for enforcing a
number of civil rights laws that apply to public education, including Title
VI of the Civil Rights Act of 1964, Title IX of the Education Amendments
of 1972, Section 504 of the Rehabilitation Act of 1973, and Title II of the
Americans with Disabilities Act of 1990. The OCR investigates
complaints filed by parties who believe they are the victims of unlawful
discrimination, but it has no power to bring lawsuits on its own. The OCR
prefers to settle discrimination complaints through negotiation with school
officials, but in some situations it refers cases to the Justice Department,
which then decides whether to file suit against the school district.
One agency that can bring civil suits directly against violators is the
Securities and Exchange Commission (SEC). The SEC routinely files suit
in federal district court against parties who are accused of securities fraud
under federal law and the Commission’s own regulations.44 The SEC is
empowered to seek injunctions, the “disgorgement” of ill-gotten gains, and
civil penalties.
Citizen-Initiated Lawsuits
In some instances, citizens can go to court directly rather than wait for a
government agency to act on a violation of public policy. For example,
Section 505(a) of the Clean Water Act authorizes private citizens to
commence a civil action for injunctive relief and/or the imposition of civil
penalties in federal district court against any person “alleged to be in
violation” of the conditions of a National Pollutant Discharge Elimination
System (NPDES) permit. However, Section 505(a) does not allow citizen
suits for “wholly past violations.” 45
An increasingly popular form of citizen-initiated litigation is the qui tam
action. Qui tam is short for the Latin phrase qui tam pro domino rege
quam pro sic ipso in hoc parte sequitur, which means “who sues for the
king sues for himself as well.” According to Black’s Law Dictionary, a qui
tam suit is “an action brought by an informer, under a statute which
establishes a penalty for the commission or omission of a certain act, and
provides that the same shall be recoverable in a civil action, part of the
penalty to go to any person who will bring such action and the remainder
to the state or some other institution.” The federal False Claims Act allows
private citizens to file suit on behalf of the U.S. Government charging
fraud by government contractors and others who receive federal funds.46 If
the plaintiff prevails, the government can recover triple its damages in
addition to civil penalties ranging from $5,000 to $10,000 per violation.
The citizen (referred to as the “relator”) shares in the monetary damages
collected up to a maximum of 30 percent. The False Claims Act was
enacted by Congress during the Civil War in order to ferret out fraud in
military procurement. Today, the law provides an incentive to
whistleblowers to reveal evidence of fraud in programs like Medicare and
Medicaid. In recent years, there have been a number of million-dollar
settlements.47 Currently, about five hundred qui tam actions are filed in
federal courts each year, and the number is growing rapidly.
Beyond suits filed by actual citizens, states themselves can bring legal
action against federal agencies. In 2007, a unique case ensued when 12
states, joined by the cities of New York and Baltimore and the District of
Columbia, filed suit against the EPA after the agency refused to regulate
greenhouse gases (like carbon dioxide) that were emitted from motor
vehicles. An EPA administrator essentially claimed that the Clean Air Act
did not require it to regulate such activity, and the agency was even joined,
as respondents, by several different states. In issuing its ruling for
Massachusetts v. EPA, the Supreme Court first stated that the petitioners
did in fact have standing to sue the EPA, and then the Court noted that the
EPA’s reasons for not regulating vehicle greenhouse gas emissions were
inadequate, since this authority fell within its purview.48 Subsequently, in
2009, the EPA—now under the control of President Obama’s
administration—would end up establishing rules for regulating automobile
emissions.
In 2014, the Supreme Court recognized EPA authority to regulate
“greenhouse gases” in industrial contexts as well—but the Court did place
some limits upon the scope of this power. More specifically, in Utility Air
v. EPA, the Supreme Court addressed EPA authority under the Clean Air
Act. Pursuant to that law, the EPA requires that so-called “stationary
polluters” (e.g., power plants, steel mills, and refineries) must procure
permits before expanding existing facilities or creating new ones. The EPA
typically grants these permits if it is clear that appropriate technology is
implemented in order to reduce pollution. In the Utility Air decision, the
Court stated the EPA could not mandate that companies acquire such
permits solely because of “potential greenhouse emissions.” However, if a
company had to acquire a permit regarding other pollutants, then the EPA
also could necessitate using the “best available control technology” for
greenhouse gas emissions. (This decision did not affect the holding from
Massachusetts v. EPA, and thus, the EPA can still regulate all greenhouse
emissions from automobiles.)49
Overall, numerous media outlets have characterized this decision as
something of a “mixed bag” for the EPA. In this regard, Justice Scalia’s
opinion actually observed: “It bears mention that the EPA is getting almost
everything it wanted in this case.” Scalia specifically suggested that the
EPA could still regulate 83% of greenhouse-gas emissions, but he added
that the regulation the court struck down would have raised that to 86%.
Although this might not seem like a substantial difference, Scalia
articulated an important underlying principle by saying, “To permit the
extra 3%, however, we would have to recognize a power in EPA and other
government agencies to revise clear statutory terms…[contradicting] the
principle that Congress, not the president, makes the law.” In the end, that
sentiment could prove to be the key rationale that emanates from this
decision.
Criminal Prosecutions
Federal agencies do not have the authority to initiate criminal
prosecutions. But when they obtain evidence of criminal wrongdoing, they
can refer the matter to the Department of Justice. If the Attorney General
believes the matter warrants prosecution, the case is presented to a federal
grand jury for indictment (see Chapter 10).
Forfeitures
Federal law provides for the forfeiture of real estate and other property
used in illegal drug trafficking and other criminal activities.51 Cars, boats,
and airplanes are commonly seized under the forfeiture laws. In 1984,
federal law enforcement agencies began a program called “Equitable
Sharing,” under which federal agencies recruit state and local police to
assist them in seizing property under federal statutes. Local or state police
seize property and turn it over to the federal government. If the forfeiture
is upheld, the state or local police agency that made the seizure shares
equally in the proceeds when the forfeited assets are sold at auction.
In 1993, the Supreme Court held that a property forfeiture stemming
from a drug crime is subject to limitation under the Eighth Amendment.52
Writing for the Court, Justice Blackmun concluded that “forfeiture…
constitutes ‘payment to a sovereign as punishment for some offense,’ and,
as such, is subject to the limitations of the Eighth Amendment’s Excessive
Fines Clause.” 53
Until recently, real estate, including a residence or business, could be
seized on the basis of an ex parte seizure warrant, and the property owner
ousted from the property pending trial—without notice or an opportunity
to be heard. The Supreme Court has held that such practices are
unconstitutional when they apply to seizures of real estate.54 Due process
requires notice and the opportunity to be heard before real estate can be
seized, the Court held, and in most situations this should mean that the
property owner not be disturbed in the right of possession of the property
pending trial. But the Supreme Court expressly limited the holding to real
property—residential or commercial. It did not affect pretrial detention of
cars, bank accounts, cash, and other personal property.
AGENCY ADJUDICATION
Agencies often must settle disputes with parties they regulate or the
beneficiaries of their programs. In this respect, agencies act as quasi-
judicial bodies. Unlike judicial proceedings, however, the rules of
evidence for administrative hearings are quite liberal, with hearsay
evidence generally admitted and only irrelevant, immaterial, or repetitive
evidence excluded.
CASE IN POINT
George Eldridge, who had been disabled due to “chronic anxiety and back
strain,” was informed by the Social Security Administration that,
according to medical reports, his disability no longer existed and that
benefit payments would be terminated. Although agency procedures
required ample notification and an evidentiary hearing prior to final
termination, the payments could be stopped initially without a hearing.
Provision was also made for retroactive payments to any recipient whose
disability was later determined not to have ended. Eldridge, who was
concerned with the initial decision to terminate payments, relied on
Goldberg v. Kelly in arguing that the Due Process Clause required an
evidentiary hearing before any termination of benefits.
Writing for the Court, Justice Lewis Powell conceded the existence of a
property interest in Social Security benefits and thus the applicability of
the Due Process Clause. But Powell said that “due process is flexible and
calls for such procedural protections as the particular situation demands.”
In other words, the degree of procedural safeguards required by the
Constitution depends on how much one stands to lose. In this case, the
Court distinguished social security from welfare benefits and held that the
“potential deprivation … is generally likely to be less” when social
security payments are denied than when welfare benefits are terminated. In
this way, the Court significantly narrowed the potential application of
Goldberg v. Kelly without formally overruling it. In Mathews, the Court
was willing to regard the existing agency procedures as adequate
safeguards.
One of the functions of the federal courts is to ensure that the federal
bureaucracy conforms to the rule of law. In certain instances, parties can
go directly to federal district court to challenge agency actions. In most
cases, however, parties must first exhaust available remedies internal to the
agency. Having done so and failing to get relief, they can then file an
appeal with the appropriate circuit court. For obvious reasons, the U.S.
Court of Appeals for the District of Columbia Circuit has an extensive
caseload of these administrative cases. There is an elaborate body of law,
both statutory and decisional, governing judicial review of agency
actions. At the outset, it is important to understand the distinction between
decisions on threshold issues, which govern access to judicial review, and
decisions on the merits.
In late 1999 and early 2000, the Immigration and Naturalization Service
(INS) became the focus of national and international attention for its
handling of the unusual case of Elian Gonzales, a six-year-old Cuban boy
who was rescued at sea after his mother and nine other people drowned
when their boat capsized. The INS gave temporary custody of the boy to
relatives in Miami. When the boy’s natural father came from Cuba to
claim Elian, the Miami relatives refused to relinquish custody. After
negotiations between the INS and the Miami relatives broke down, the INS
used force to remove the boy from the home of the Miami relatives and
reunite him with his father. While they had custody of Elian, the Miami
relatives initiated a federal lawsuit to force the INS to grant Elian a
political asylum hearing. The INS took the position that legally, only
Elian’s father could speak for him in this regard. The federal district court
in Miami dismissed the case. The Miami relatives appealed to the U.S.
Court of Appeals for the Eleventh Circuit in Atlanta. On June 1, 2000, the
Eleventh Circuit ruled that the INS had acted within its legal authority in
refusing to hold a political asylum hearing. The Miami relatives vowed to
appeal. The following is a brief excerpt from the Eleventh Circuit’s
opinion:
EDMONDSON, Circuit Judge:
…When the INS was confronted with Plaintiff’s purported asylum
applications, the immigration law of the United States provided the INS
with no clear answer. The INS accordingly developed a policy to deal with
the extraordinary circumstances of asylum applications filed on behalf of a
six-year-old child, by the child himself and a non-parental relative, against
the express wishes of the child’s parents (or sole parent). The INS then
applied this new policy to Plaintiff’s purported asylum applications and
rejected them as nullities.
Because the preexisting law compelled no particular policy, the INS was
entitled to make a policy decision. The policy decision that the INS made
was within the outside border of reasonable choices. And the INS did not
abuse its discretion or act arbitrarily in applying the policy and rejecting
Plaintiff’s purported asylum applications. The Court neither approves nor
disapproves the INS’s decision to reject the asylum applications filed on
Plaintiff’s behalf, but the INS decision did not contradict [the law].
CASE IN POINT
Constitutional Issues
Public employees cannot be dismissed merely for exercising their
constitutional rights. In Pickering v. Board of Education (1968), a public
school teacher was dismissed for sending a letter to a newspaper criticizing
the board of education. On review of her dismissal, the Supreme Court
held that a public employee cannot be discharged for comments in exercise
of First Amendment rights.88 In 1987, the Court reaffirmed this holding in
the context of a case where a clerical worker in a Texas constable’s office
was fired after making an intemperate political remark.89 When Ardith
McPherson heard that John Hinckley had tried unsuccessfully to kill
President Reagan, she said, “If they go for him again, I hope they get him.”
The Supreme Court held that her dismissal violated the First Amendment.
However, in a 2006 case, Garcetti v. Ceballos, 90 the Court placed some
limitations on the First Amendment rights of public employees. Ceballos, a
deputy district attorney in the Los Angeles County District Attorney’s
office, said that he had not received a promotion because of comments that
he made about a search warrant’s validity; thus, he claimed a violation of
his right to free speech. The Supreme Court rejected his argument, noting
that when public officials make comments related to their jobs, they are
not entitled to First Amendment protections, and therefore, can be
disciplined for what they say. Even so, the Garcetti case did not disturb the
ability of public employees to speak, as citizens, about matters
unconnected to their jobs. As a result, the precedents mentioned in the
previous paragraph are still valid.
Another of the more controversial constitutional questions involving
public employees today is drug testing. Many local, state, and federal
agencies, especially in the field of law enforcement, require their
employees to submit to periodic or random drug testing as a condition of
employment or promotion. The Supreme Court has recognized that drug
testing by public agencies is a form of search and is therefore subject to
challenge under the Fourth Amendment. But at the same time, the Court
has upheld drug testing of Customs Inspectors, who are directly involved
in drug interdiction.91 In 1997, though, the Court struck down a Georgia
law requiring all candidates for state office to submit to drug tests.92
Between the two decisions lies a gray area that is now the subject of
considerable litigation in state and federal courts.
CONCLUSION
Administrative law embraces the legal rules that govern administrative and
regulatory agencies at all levels of government. Agencies bring expertise
to focus on special areas of governmental concern. Indeed, they have
become indispensable to the functioning of modern government. In
general, agencies are reasonably diligent and efficient in performing the
essential functions of rulemaking and adjudication.
However, despite its efficiency and expertise, “the bureaucracy” often
suffers the wrath of the citizenry because of its insulation from direct
political control. One of the great challenges of modern democratic
government, it follows, is to make the bureaucracy function with regard to
the traditional rule of law and constitutional protections, while at the same
time preserving the discretion and flexibility necessary to address the
constantly changing demands of society. Ultimately, this is the purpose of
administrative law.
Cooper, Philip, Public Law and Public Administration (4th ed., F.E.
Peacock Publishers 2000).
Davis, Kenneth Culp, Discretionary Justice (Louisiana State University
Press 1969).
Kerwin, Cornelius M., Rulemaking: How Government Agencies Write Law
and Make Public Policy (3d ed., CQ Press 2003).
Rohr, John, To Run a Constitution: The Legitimacy of the Administrative
State (University of Kansas Press 1986).
Scheb, John M., and John M. Scheb II, Law and the Administrative
Process (Wadsworth 2004).
Shapiro, Martin, Who Guards the Guardians? Judicial Control of
Administration (University of Georgia Press 1988).
Sunstein, Cass R., After the Rights Revolution: Reconceiving the
Regulatory State (Harvard University Press 1990).
Warren, Kenneth F., Administrative Law in the American Political System
(West 1982).
Wilson, James Q., Bureaucracy: What Government Agencies Do and Why
They Do It (Basic Books 1991).
KEY TERMS
adjudicatory procedures
administrative agencies
administrative detention
administrative law
administrative law judges
administrative search warrants
administrative searches
cease and desist orders
civil service
cost-benefit analyses
delegations of power
deportation
disclosure of information
due process of law
enabling legislation
exhaustion of remedies
forfeiture
formal adjudication
garnishment
improper disclosure of personal information
informal adjudication
judicial review of agency actions
jurisdiction
legislative veto
levy
malfeasance
misfeasance
nonfeasance
notice of proposed rulemaking
open meetings
preclearance
quasi-judicial bodies
qui tam action
regulatory agencies
rulemaking
rulemaking authority
separation of powers
spoils system
standing
statutory preclusion of judicial review
substantial evidence
sunshine laws
warrantless administrative searches
warrantless inspections
ENDNOTES
1. Another important distinction is that between “independent agencies” and those that are
located within the major departments of the executive branch. For example, at the federal
level, the Food and Drug Administration is located within the Department of Health and
Human Services, whereas the Consumer Products Safety Commission is an independent
agency. Similarly, the Occupational Safety and Health Administration is located within the
Department of Labor. The Environmental Protection Agency, by contrast, is an independent
regulatory agency.
2. Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S. Ct. 1291,
146 L. Ed. 2d 121 (2000).
3. Sea World v. Perez, U.S. Court of Appeals for the D.C. Circuit, April 11, 2014; opinion
available at: http://www.cadc .uscourts.gov/internet/opinions.nsf/5AF8A4C12F19AE21852
57CB700516292/$file/12-1375-1487925.pdf.
4. J.W. Hampton & Co. v. United States, 276 U.S. 394, 406, 48 S. Ct. 348, 351, 72 L. Ed. 624,
629 (1928).
5. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570
(1935).
6. Cass Sunstein, “Constitutionalism after the New Deal,” 101 Harv. L. Rev. 421, 447-448
(1987).
7. Gary Lawson, “The Rise and Rise of the Administrative State,” 107 Harv. L. Rev. 1231, 1237
(1994).
8. American Textile Mfrs. Institute v. Donovan, 452 U.S. 490, 101 S. Ct. 2478, 69 L. Ed. 2d 185
(1981).
9. 452 U.S. at 547, 101 S. Ct. at 2509, 60 L. Ed. 2d at 225 (1981).
10. 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989).
11. 488 U.S. at 427, 109 S. Ct. at 683, 102 L. Ed. 2d at 765.
12. INS. v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983).
13. Mead v. Arnell, 791 P.2d 410 (Idaho 1990).
14. See 5 U.S.C. §801 et seq.
15. Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 27 (1969).
16. See 5 U.S.C. §553.
17. 5 U.S.C. §533b.
18. 15 U.S.C. §2601.
19. See 21 U.S.C. §355.
20. See 5 U.S.C. §600 et seq.
21. Exec. Order No. 12044.
22. Exec. Order No. 12291.
23. Vermont Yankee Nuclear Power Corp. v. Natural Res. Defense Council, Inc., 435 U.S. 519, 98
S. Ct. 1197, 55 L. Ed. 2d 460 (1978).
24. 435 U.S. at 548, 98 S. Ct. at 1214, 55 L. Ed. 2d at 482.
25. Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006).
26. In discussing this deference, the opinion in Gonzales v. Oregon referred to two previous cases:
Chevron U.S.A. v. Natural Resource Defense Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L.
Ed. 2d 694 (1984); and Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 137 L. Ed. 2d 79
(1997).
27. Murphy v. Waterfront Commn., 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964).
28. Interstate Commerce Commn. v. Brimson, 154 U.S. 447, 14 S. Ct. 1125, 38 L. Ed. 1047
(1894).
29. Frank v. Maryland, 359 U.S. 360, 79 S. Ct. 804, 3 L. Ed. 2d 877 (1959).
30. See, e.g., Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967),
overruling Frank v. Maryland, 359 U.S. 360, 79 S. Ct. 804, 3 L. Ed. 2d 877 (1959).
31. Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60
(1970).
32. New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d. 601 (1987).
33. United States v. Biswell, 406 U.S. 311, 315-17, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972).
34. Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981).
35. 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978).
36. Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981).
37. New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987).
38. See 8 U.S.C. §1181 et seq.
39. 8 U.S.C. §1226a.
40. 8 U.S.C. §1226e.
41. The counterargument is that illegal immigrants, as persons within the jurisdiction of the United
States, should be provided due process of law; see Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct.
2491, 150 L. Ed. 2d 653 (2001).
42. 42 U.S.C. §2000a-5.
43. Ridgeway v. Flagstar Corp., 1994 WL 665414 (N.D. Cal. 1994).
44. See Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act
of 1934, and SEC Rule 10b-5.
45. Gwaltney v. Chesapeake Bay Found., 484 U.S. 49, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987).
46. 31 U.S.C. §§3729-3733.
47. For a list of False Claims Act settlements from 2000-2014, see the following document from
Crowell & Moring LLP: http://www.crowell.com/files/false-claims-act-fca-settlements-
crowell-moring.pdf.
48. Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct. 1438, 167, L. Ed. 2d 248 (2007).
49. Utility Air v. EPA, 570 U.S. ___ (2014).
50. See Internal Revenue Code, 26 U.S.C. §§1-1563.
51. See, e.g., 21 U.S.C. §881.
52. Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993).
53. 509 U.S. at 622, 113 S. Ct. at 2812, 125 L. Ed. 2d at 505.
54. United States v. James Daniel Good Real Prop., 510 U.S. 43, 114 S. Ct. 492, 128 L. Ed. 2d
490 (1992).
55. 5 U.S.C. §554b.
56. 5 U.S.C. §554c.
57. 5 U.S.C. §554(a).
58. For more information on administrative judges and ALJs, see Verkuil, “Reflections Upon the
Federal Administrative Judiciary,” 39 UCLA L. Rev. 1341 (1992).
59. See M. Redish & L. Marshall, “Adjudicatory Independence and the Values of Procedural Due
Process,” 95 Yale L.J. 455 (1986).
60. See 5 U.S.C. §§551-559, 701-706, 3105, 3344, 5372, 7521.
61. 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).
62. 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975).
63. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18, 33 (1976).
64. 547 U.S 220, 126 S. Ct. 708, 164 L. Ed. 2d 415 (2006).
65. 459 F.3d 705 (6th Cir. 2006).
66. 459 F.3d at 711.
67. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 114 S. Ct. 771, 127 L. Ed. 2d 79 (1994).
68. Webster v. Doe, 486 U.S. 592, 108 S. Ct. 2047, 100 L. Ed. 2d 632 (1988).
69. 5 U.S.C. §702.
70. 548 U.S. 81, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006).
71. 548 U.S. at 91, 126 S. Ct. at 2386, 165 L. Ed. 2d at 378.
72. Frothingham v. Mellon, cited as Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 497, 87 L.
Ed. 1078 (1923), the two cases having been consolidated.
73. Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972).
74. See, e.g., United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669,
93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973).
75. Chevron U.S.A. v. Natural Res. Defense Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d
694 (1984).
76. See, for example, Bob Jones University v. United States, 461 U.S. 574, 103 S. Ct. 2017, 76 L.
Ed. 2d 157 (1983), where the Court upheld a decision of the Internal Revenue Service to deny
tax-exempt status to a private religious college that practiced racial discrimination.
77. 5 U.S.C. §552.
78. 458 F.3d 194 (3d Cir. 2006).
79. The document can be viewed at: http://www.washington post.com/r/2010-
2019/WashingtonPost/2014/06/23/National-Security/Graphics/memodrones.pdf. The case is
from the U.S. Court of Appeals for the 2nd Circuit: New York Times v. United States
Department of Justice, decided April 21, 2014; citation: 2014 U.S. App. LEXIS 7387.
80. 5 U.S.C. §552b(b).
81. Fla. Stat. ch. 286.
82. News-Press Publg. Co. v. Carlson, 410 So. 2d 546 (Fla. App. 1982).
83. Bennett v. Warden, 333 So. 2d 97 (Fla. App. 1976).
84. U.S. Const. art. VI, §3.
85. 5 U.S.C. §7311.
86. 18 U.S.C. §207.
87. 42 U.S.C. §2000e.
88. 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).
89. Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987).
90. Garcetti v. Ceballos, 547 U.S. 210, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006).
91. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed.
2d 685 (1989).
92. Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 1295, 137 L. Ed. 2d 513 (1997).
We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty
to ourselves and our Posterity, do ordain and establish this Constitution for
the United States of America.
ARTICLE I
Section 1
All legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of
Representatives.
Section 2
(1) The House of Representatives shall be composed of Members chosen
every second Year by the People of the several States, and the Electors in
each State shall have the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature.
(2) No Person shall be a Representative who shall not have attained to
the age of twenty-five Years, and been seven Years a Citizen of the United
States, and who shall not, when elected, be an Inhabitant of that State in
which he shall be chosen.
(3) Representatives and direct Taxes shall be apportioned among the
several States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole
Number of free Persons, including those bound to Service for a Term of
Years, and excluding Indians not taxed, three fifths of all other Persons.
The actual Enumeration shall be made within three Years after the first
Meeting of the Congress of the United States, and within every subsequent
Term of ten Years, in such Manner as they shall by Law direct. The
Number of Representatives shall not exceed one for every thirty Thousand,
but each State shall have at Least one Representative; and until such
enumeration shall be made, the State of New Hampshire shall be entitled
to chuse three, Massachusetts eight, Rhode Island and Providence
Plantations one, Connecticut five, New York six, New Jersey four,
Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North
Carolina five, South Carolina five, and Georgia three.
(4) When vacancies happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.
(5) The House of Representatives shall chuse their Speaker and other
Officers; and shall have the sole Power of Impeachment.
Section 3
(1) The Senate of the United States shall be composed of two Senators
from each State, chosen by the Legislature thereof, for six Years; and each
Senator shall have one Vote.
(2) Immediately after they shall be assembled in Consequence of the
first Election, they shall be divided as equally as may be into three Classes.
The Seats of the Senators of the first Class shall be vacated at the
Expiration of the second Year, of the second Class at the Expiration of the
fourth Year, and of the third Class at the Expiration of the sixth Year, so
that one third may be chosen every second Year; and if Vacancies happen
by Resignation, or otherwise, during the Recess of the Legislature of any
State, the Executive thereof may make temporary Appointments until the
next Meeting of the Legislature, which shall then fill such Vacancies.
(3) No Person shall be a Senator who shall not have attained, to the Age
of thirty Years, and been nine Years a Citizen of the United States, and
who shall not, when elected, be an Inhabitant of that State for which he
shall be chosen.
(4) The Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided.
(5) The Senate shall chuse their other Officers, and also a President pro
tempore, in the Absence of the Vice President, or when he shall exercise
the Office of the President of the United States.
(6) The Senate shall have the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath or Affirmation. When the
President of the United States is tried, the Chief Justice shall preside: And
no Person shall be convicted without the Concurrence of two thirds of the
Members present.
(7) Judgment in Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy any Office of
honor, Trust or Profit under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.
Section 4
(1) The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.
(2) The Congress shall assemble at least once in every Year, and such
Meeting shall be on the first Monday in December, unless they shall by
Law appoint a different Day.
Section 5
(1) Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members, and a Majority of each shall constitute
a Quorum to do Business; but a smaller Number may adjourn from day to
day, and may be authorized to compel the Attendance of absent Members,
in such Manner, and under such Penalties as each House may provide.
(2) Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two
thirds, expel a Member.
(3) Each House shall keep a Journal of its Proceedings, and from time to
time publish the same, excepting such Parts as may in their Judgment
require Secrecy; and the Yeas and Nays of the Members of either House
on any question shall, at the Desire of one fifth of those Present, be entered
on the Journal.
(4) Neither House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to any other
Place than that in which the two Houses shall be sitting.
Section 6
(1) The Senators and Representatives shall receive a Compensation for
their Services, to be ascertained by Law, and paid out of the Treasury of
the United States. They shall in all Cases, except Treason, Felony and
Breach of the Peace, be privileged from Arrest during their Attendance at
the Session of their respective Houses, and in going to and returning from
the same; and for any Speech or Debate in either House, they shall not be
questioned in any other Place.
(2) No Senator or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the Authority of the
United States, which shall have been created, or the Emoluments whereof
shall have been increased during such time; and no Person holding any
Office under the United States, shall be a Member of either House during
his Continuance in Office.
Section 7
(1) All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with Amendments
as on other Bills.
(2) Every Bill which shall have passed the House of Representatives and
the Senate, shall, before it become a Law, be presented to the President of
the United States; If he approve he shall sign it, but if not he shall return it,
with his Objections to that House in which it shall have originated, who
shall enter the Objections at large on their Journal, and proceed to
reconsider it. If after such Reconsideration two thirds of that House shall
agree to pass the Bill, it shall be sent, together with the Objections, to the
other House, by which it shall likewise be reconsidered, and if approved
by two thirds of that House, it shall become a Law. But in all such Cases
the Votes of both Houses shall be determined by Yeas and Nays, and the
Names of the Persons voting for and against the Bill shall be entered on
the Journal of each House respectively. If any Bill shall not be returned by
the President within ten Days (Sunday excepted) after it shall have been
presented to him, the Same shall be a Law, in like Manner as if he had
signed it, unless the Congress by their Adjournment prevent its Return, in
which Case it shall not be a Law.
(3) Every Order, Resolution, or Vote to which the Concurrence of the
Senate and House of Representatives may be necessary (except on a
question of Adjournment) shall be presented to the President of the United
States; and before the Same shall take Effect, shall be approved by him, or
being disapproved by him, shall be repassed by two thirds of the Senate
and House of Representatives, according to the Rules and Limitations
prescribed in the Case of a Bill.
Section 8
(1) The Congress shall have Power To lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States; but all Duties, Imposts
and Excises shall be uniform throughout the United States;
(2) To borrow Money on the credit of the United States;
(3) To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;
(4) To establish an uniform Rule of Naturalization, and uniform Laws
on the subject of Bankruptcies throughout the United States;
(5) To coin Money, regulate the Value thereof, and of foreign Coin, and
to fix the Standard of Weights and Measures;
(6) To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;
(7) To establish Post Offices and post Roads;
(8) To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;
(9) To constitute Tribunals inferior to the supreme Court;
(10) To define and punish Piracies and Felonies committed on the high
Seas, and Offenses against the Law of Nations;
(11) To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water;
(12) To raise and support Armies, but no Appropriation of Money to
that Use shall be for a longer Term than two Years;
(13) To provide and maintain a Navy;
(14) To make Rules for the Government and Regulation of the land and
naval Forces;
(15) To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions;
(16) To provide for organizing, arming, and disciplining, the Militia,
and for governing such Part of them as may be employed in the Service of
the United States, reserving to the States respectively, the Appointment of
the Officers, and the Authority of training the Militia according to the
discipline prescribed by Congress;
(17) To exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession of
particular States, and the Acceptance of Congress, become the Seat of the
Government of the United States, and to exercise like Authority over all
Places purchased by the Consent of the Legislature of the State in which
the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-
Yards, and other needful Buildings;—And
(18) To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department
or Officer thereof.
Section 9
(1) The Migration or Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the
Congress prior to the Year one thousand eight hundred and eight, but a
Tax or Duty may be imposed on such Importation, not exceeding ten
dollars for each Person.
(2) The Privilege of the Writ of Habeas Corpus shall not be suspended
unless when in Cases of Rebellion or Invasion the public Safety may
require it.
(3) No Bill of Attainder or ex post facto Law shall be passed.
(4) No Capitation, or other direct, Tax shall be laid, unless in Proportion
to the Census or Enumeration herein before directed to be taken.
(5) No Tax or Duty shall be laid on Articles exported from any State.
(6) No Preference shall be given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another; nor shall Vessels
bound to, or from, one State, be obliged to enter, clear or pay Duties in
another.
(7) No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be published from
time to time.
(8) No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall, without the
Consent of the Congress, accept of any present, Emolument, Office, or
Title, of any kind whatever, from any King, Prince or foreign State.
Section 10
(1) No State shall enter into any Treaty, Alliance, or Confederation; grant
Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make
any Thing but gold and silver Coin a Tender in Payment of Debts; pass
any Bill of Attainder, ex post facto Law, or Law impairing the Obligation
of Contracts, or grant any Title of Nobility.
(2) No State shall, without the Consent of Congress, lay any Imposts or
Duties on Imports or Exports, except what may be absolutely necessary for
executing its inspection Laws: and the net Produce of all Duties and
Imposts, laid by any State on Imports or Exports, shall be for the Use of
the Treasury of the United States; and all such Laws shall be subject to the
Revision and Control of the Congress.
(3) No State shall, without the Consent of Congress, lay any Duty of
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign Power, or
engage in War, unless actually invaded, or in such imminent Danger as
will not admit of Delay.
ARTICLE II
Section 1
(1) The executive Power shall be vested in a President of the United States
of America. He shall hold his Office during the Term of four Years, and,
together with the Vice President, chosen for the same Term, be elected, as
follows:
(2) Each State shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Senators
and Representatives to which the State may be entitled in the Congress:
but no Senator or Representative, or Person holding an Office of Trust or
Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for
two Persons, of whom one at least shall not be an Inhabitant of the same
State with themselves. And they shall make a List of all the Persons voted
for, and of the Number of Votes for each; which List they shall sign and
certify, and transmit sealed to the Seat of the Government of the United
States, directed to the President of the Senate. The President of the Senate
shall, in the presence of the Senate and House of Representatives, open all
the Certificates, and the Votes shall then be counted. The Person having
the greatest Number of Votes shall be the President, if such Number be a
Majority of the whole Number of Electors appointed; and if there be more
than one who have such Majority, and have an equal Number of Votes,
then the House of Representatives shall immediately chuse by Ballot one
of them for President; and if no Person have a Majority, then from the five
highest on the List the said House shall in like Manner chuse the President.
But in chusing the President, the Votes shall be taken by States, the
Representation from each State having one Vote; a quorum for this
Purpose shall consist of a Member or Members from two thirds of the
States, and a Majority of all the States shall be necessary to a Choice. In
every Case, after the Choice of the President, the Person having the
greatest Number of Votes of the Electors shall be the Vice President. But if
there should remain two or more who have equal Votes, the Senate shall
chuse from them by Ballot the Vice President.
(3) The Congress may determine the Time of chusing the Electors, and
the Day on which they shall give their Votes; which Day shall be the same
throughout the United States.
(4) No Person except a natural born Citizen, or a Citizen of the United
States, at the time of the Adoption of this Constitution, shall be eligible to
the Office of President; neither shall any Person be eligible to that Office
who shall not have attained to the Age of thirty five Years, and been
fourteen Years a Resident within the United States.
(5) In Case of the Removal of the President from Office, or of his Death,
Resignation, or Inability to discharge the Powers and Duties of the said
Office, the Same shall devolve on the Vice President, and the Congress
may by Law provide for the Case of Removal, Death, Resignation or
Inability, both of the President and Vice President, declaring what Officer
shall then act as President, and such Officer shall act accordingly, until the
Disability be removed, or a President shall be elected.
(6) The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be increased nor diminished during the
Period for which he shall have been elected, and he shall not receive
within that Period any other Emolument from the United States, or any of
them.
(7) Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation:—“I do solemnly swear (or affirm) that I
will faithfully execute the Office of President of the United States, and will
to the best of my Ability, preserve, protect and defend the Constitution of
the United States.”
Section 2
(1) The President shall be Commander in Chief of the Army and Navy of
the United States, and of the Militia of the several States, when called into
the actual Service of the United States; he may require the Opinion, in
writing, of the principal Officer in each of the executive Departments,
upon any Subject relating to the Duties of their respective Offices, and he
shall have Power to grant Reprieves and Pardons for Offenses against the
United States, except in Cases of Impeachment.
(2) He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present
concur; and he shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of the United
States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments.
(3) The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions which
shall expire at the End of their next Session.
Section 3
He shall from time to time give to the Congress Information of the State of
the Union, and recommend to their Consideration such Measures as he
shall judge necessary and expedient; he may, on extraordinary Occasions,
convene both Houses, or either of them, and in Case of Disagreement
between them, with Respect to the Time of Adjournment, he may adjourn
them to such Time as he shall think proper; he shall receive Ambassadors
and other public Ministers; he shall take Care that the Laws be faithfully
executed, and shall Commission all the Officers of the United States.
Section 4
The President, Vice President and all Civil Officers of the United States,
shall be removed from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors.
ARTICLE III
Section 1
The judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time
ordain and establish. The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour, and shall, at stated Times,
receive for their Services, a Compensation, which shall not be diminished
during their Continuance in Office.
Section 2
(1) The judicial Power shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made,
or which shall be made, under their Authority;—to all Cases affecting
Ambassadors, other public Ministers and Consuls;—to all Cases of
admiralty and maritime Jurisdiction;—to Controversies to which the
United States shall be a party;—to Controversies between two or more
States;—between a State and Citizens of another State;—between Citizens
of different States;—between Citizens of the same State claiming Lands
under Grants of different States, and between a State, or the Citizens
thereof, and foreign States, Citizens or Subjects.
(2) In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme Court shall
have original Jurisdiction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the Congress shall
make.
(3) The Trial of all Crimes, except in Cases of Impeachment, shall be by
Jury; and such Trial shall be held in the State where the said Crimes shall
have been committed; but when not committed within any State, the Trial
shall be at such Place or Places as the Congress may by Law have directed.
Section 3
(1) Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in open Court.
(2) The Congress shall have Power to declare the Punishment of
Treason, but no Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted.
ARTICLE IV
Section 1
Full Faith and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State. And the Congress
may by general Laws prescribe the Manner in which such Acts, Records
and Proceedings shall be proved, and the Effect thereof.
Section 2
(1) The Citizens of each State shall be entitled to all privileges and
Immunities of Citizens in the several States.
(2) A Person charged in any State with Treason, Felony, or other Crime,
who shall flee from Justice, and be found in another State, shall on
Demand of the executive Authority of the State from which he fled, be
delivered up, to be removed to the State having Jurisdiction of the Crime.
(3) No Person held to Service of Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but shall
be delivered up on Claim of the Party to whom such Service or Labour
may be due.
Section 3
(1) New States may be admitted by the Congress into this Union; but no
new State shall be formed or erected within the Jurisdiction of any other
State; nor any State be formed by the Junction of two or more States, or
Parts of States, without the Consent of the Legislatures of the States
concerned as well as of the Congress.
(2) The Congress shall have power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property belonging
to the United States; and nothing in this Constitution shall be so construed
as to Prejudice any Claims of the United States, or of any particular State.
Section 4
The United States shall guarantee to every State in this Union a
Republican Form of Government, and shall protect each of them against
Invasion; and on Application of the Legislature, or of the Executive (when
the Legislature cannot be convened) against domestic Violence.
ARTICLE V
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States, shall
call a Convention for proposing Amendments, which, in either Case, shall
be valid to all Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the several States, or by
Conventions in three fourths thereof, as the one or the other Mode of
Ratification may be proposed by the Congress; Provided that no
Amendment which may be made prior to the Year One thousand eight
hundred and eight shall in any Manner affect the first and fourth Clauses in
the Ninth Section of the first Article; and that no State, without its
Consent, shall be deprived of its equal Suffrage in the Senate.
ARTICLE VI
(1) All Debts contracted and Engagements entered into, before the
Adoption of this Constitution, shall be as valid against the United States
under this Constitution, as under the Confederation.
(2) This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made,
under the Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the Contrary notwithstanding.
(3) The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and judicial
Officers, both of the United States and of the several States, shall be bound
by Oath or Affirmation, to support this Constitution; but no religious Test
shall ever be required as a Qualification to any Office or public Trust
under the United States.
ARTICLE VII
The Ratification of the Conventions of nine States, shall be sufficient for
the Establishment of this Constitution between the States so ratifying the
Same.
ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE
CONSTITUTION OF THE UNITED STATES OF AMERICA,
PROPOSED BY CONGRESS, AND RATIFIED BY THE SEVERAL
STATES, PURSUANT TO THE FIFTH ARTICLE OF THE
ORIGINAL CONSTITUTION
AMENDMENT I (1791)
AMENDMENT II (1791)
A well regulated Militia, being necessary to the security of a free state, the
right of the people to keep and bear Arms, shall not be infringed.
AMENDMENT IV (1791)
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
AMENDMENT V (1791)
AMENDMENT VI (1791)
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
AMENDMENT IX (1791)
AMENDMENT X (1791)
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people.
AMENDMENT XI (1798)
The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.
The Electors shall meet in their respective states and vote by ballot for
President and Vice-President, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as President, and in distinct ballots the person
voted for as Vice-President, and they shall make distinct lists of all persons
voted for as President, and of all persons voted for as Vice-President, and
of the number of votes for each, which lists they shall sign and certify, and
transmit sealed to the seat of the government of the United States, directed
to the President of the Senate;—The President of the Senate shall, in the
presence of the Senate and House of Representatives, open all the
certificates and the votes shall then be counted;—The person having the
greatest number of votes for President, shall be the President, if such
number be a majority of the whole number of Electors appointed; and if no
person have such majority, then from the persons having the highest
numbers not exceeding three on the list of those voted for as President, the
House of Representatives shall choose immediately, by ballot, the
President. But in choosing the President, the votes shall be taken by states,
the representation from each state having one vote; a quorum for this
purpose shall consist of a member or members from two-thirds of the
states, and a majority of all the states shall be necessary to a choice. And if
the House of Representatives shall not choose a President whenever the
right of choice shall devolve upon them, before the fourth day of March
next following, then the Vice-President shall act as President, as in the
case of the death or other constitutional disability of the President—The
person having the greatest number of votes as Vice-President, shall be the
Vice-President, if such number be a majority of the whole number of
Electors appointed, and if no person have a majority, then from the two
highest numbers on the list, the Senate shall choose the Vice-President; A
quorum for the purpose shall consist of two-thirds of the whole number of
Senators, and a majority of the whole number shall be necessary to a
choice. But no person constitutionally ineligible to the office of President
shall be eligible to that of Vice-President of the United States.
Section 1
Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within
the United States, or any place subject to their jurisdiction.
Section 2
Congress shall have power to enforce this article by appropriate
legislation.
Section 1
All persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Section 2
Representatives shall be apportioned among the several States according to
their respective numbers, counting the whole number of persons in each
State, excluding Indians not taxed. But when the right to vote at any
election for the choice of electors for President and Vice-President of the
United States, Representatives in Congress, the Executive and Judicial
officers of a State, or the members of the Legislature thereof, is denied to
any of the male inhabitants of such State, being twenty-one years of age,
and citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation therein
shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in
such State.
Section 3
No person shall be a Senator or Representative in Congress, or elector of
President and Vice-President, or hold any office, civil or military, under
the United States, or under any State, who, having previously taken an
oath, as a member of Congress, or as an officer of the United States, or as
a member of any State legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given aid or
comfort to the enemies thereof. But Congress may by a vote of two-thirds
of each House, remove such disability.
Section 4
The validity of the public debt of the United States, authorized by law,
including debts incurred for payment of pensions and bounties for services
in suppressing insurrection or rebellion, shall not be questioned. But
neither the United States nor any State shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave; but all such
debts, obligations and claims shall be held illegal and void.
Section 5
The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
AMENDMENT XV (1870)
Section 1
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude.
Section 2
The Congress shall have power to enforce this article by appropriate
legislation.
The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States,
and without regard to any census or enumeration.
The Senate of the United States shall be composed of two Senators from
each State, elected by the people thereof, for six years; and each Senator
shall have one vote. The electors in each State shall have the qualifications
requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate,
the executive authority of such State shall issue writs of election to fill
such vacancies: Provided, That the legislature of any State may empower
the executive thereof to make temporary appointments until the people fill
the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or
term of any Senator chosen before it becomes valid as part of the
Constitution.
Section 1
After one year from the ratification of this article the manufacture, sale, or
transportation of intoxicating liquors within, the importation thereof into,
or the exportation thereof from the United States and all territory subject to
the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2
The Congress and the several States shall have concurrent power to
enforce this article by appropriate legislation.
Section 3
This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of the several States, as
provided in the Constitution, within seven years from the date of the
submission hereof to the States by the Congress.
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate
legislation.
AMENDMENT XX (1933)
Section 1
The terms of the President and Vice President shall end at noon on the
20th day of January, and the terms of Senators and Representatives at noon
on the 3d day of January, of the years in which such terms would have
ended if this article had not been ratified; and the terms of their successors
shall then begin.
Section 2
The Congress shall assemble at least once in every year, and such meeting
shall begin at noon on the 3d day of January, unless they shall by law
appoint a different day.
Section 3
If, at the time fixed for the beginning of the term of the President, the
President elect shall have died, the Vice President elect shall become
President. If a President shall not have been chosen before the time fixed
for the beginning of his term, or if the President elect shall have failed to
qualify, then the Vice President elect shall act as President until a
President shall have qualified; and the Congress may by law provide for
the case wherein neither a President elect nor a Vice President elect shall
have qualified, declaring who shall then act as President, or the manner in
which one who is to act shall be selected, and such person shall act
accordingly until a President or Vice President shall have qualified.
Section 4
The Congress may by law provide for the case of the death of any of the
persons from whom the House of Representatives may choose a President
whenever the right of choice shall have devolved upon them, and for the
case of the death of any of the persons from whom the Senate may choose
a Vice President whenever the right of choice shall have devolved upon
them.
Section 5
Sections 1 and 2 shall take effect on the 15th day of October following the
ratification of this article.
Section 6
This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of three-fourths of the
several States within seven years from the date of its submission.
Section 1
The eighteenth article of amendment to the Constitution of the United
States is hereby repealed.
Section 2
The transportation or importation into any State, Territory or possession of
the United States for delivery or use therein of intoxicating liquors, in
violation of the laws thereof, is hereby prohibited.
Section 3
This article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by conventions in the several States, as
provided in the Constitution, within seven years from the date of the
submission hereof to the States by the Congress.
Section 1
No person shall be elected to the office of the President more than twice,
and no person who has held the office of President, or acted as President,
for more than two years of a term to which some other person was elected
President shall be elected to the office of the President more than once. But
this Article shall not apply to any person holding the office of President
when this Article was proposed by the Congress, and shall not prevent any
person who may be holding the office of President, or acting as President,
during the term within which this Article becomes operative from holding
the office of President or acting as President during the remainder of such
term.
Section 2
This Article shall be inoperative unless it shall have been ratified as an
amendment to the Constitution by the legislatures of three-fourths of the
several States within seven years from the date of its submission to the
States by the Congress.
Section 1
The District constituting the seat of Government of the United States shall
appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole
number of Senators and Representatives in Congress to which the District
would be entitled if it were a State, but in no event more than the least
populous State; they shall be in addition to those appointed by the States,
but they shall be considered, for the purposes of the election of President
and Vice President, to be electors appointed by a State; and they shall meet
in the District and perform such duties as provided by the twelfth article of
amendment.
Section 2
The Congress shall have power to enforce this article by appropriate
legislation.
Section 1
The right of citizens of the United States to vote in any primary or other
election for President or Vice President, for electors for President or Vice
President, or for Senator or Representative in Congress, shall not be denied
or abridged by the United States or any State by reason of failure to pay
any poll tax or other tax.
Section 2
The Congress shall have power to enforce this article by appropriate
legislation.
Section 1
In case of the removal of the President from office or of his death or
resignation, the Vice President shall become President.
Section 2
Whenever there is a vacancy in the office of the Vice President, the
President shall nominate a Vice President who shall take office upon
confirmation by a majority vote of both Houses of Congress.
Section 3
Whenever the President transmits to the President pro tempore of the
Senate and the Speaker of the House of Representatives his written
declaration that he is unable to discharge the powers and duties of his
office, and until he transmits to them a written declaration to the contrary,
such powers and duties shall be discharged by the Vice President as Acting
President.
Section 4
Whenever the Vice President and a majority of either the principal officers
of the executive departments or of such other body as Congress may by
law provide, transmit to the President pro tempore of the Senate and the
Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the
Vice President shall immediately assume the powers and duties of the
office as Acting President. Thereafter, when the President transmits to the
President pro tempore of the Senate and the Speaker of the House of
Representatives his written declaration that no inability exists, he shall
resume the powers and duties of his office unless the Vice President and a
majority of either the principal officers of the executive department or of
such other body as Congress may by law provide, transmit within four
days to the President pro tempore of the Senate and the Speaker of the
House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office. Thereupon
Congress shall decide the issue, assembling within forty-eight hours for
that purpose if not in session. If the Congress, within twenty-one days after
receipt of the latter written declaration, or, if Congress is not in session,
within twenty-one days after Congress is required to assemble, determines
by two-thirds vote of both Houses that the President is unable to discharge
the powers and duties of his office, the Vice President shall continue to
discharge the same as Acting President; otherwise, the President shall
resume the powers and duties of his office.
Section 2
The Congress shall have power to enforce this article by appropriate
legislation.
No law, varying the compensation for the services of the Senators and
Representatives, shall take effect, until an election of Representatives shall
have intervened.
abandoned property Property over which an owner or possessor has
relinquished control with no intent to regain control.
abortion The intentional termination of a pregnancy through medical
intervention.
abusive debt collection practices Actions or threats used by debt
collectors to harass a debtor.
accession An addition or increase in property.
accessory A person who aids in the commission of a crime.
accord and satisfaction Payment by one party and acceptance of it by
another in full satisfaction of a disputed claim.
Acts of God Unforeseen occurrences not caused by a human being or a
human agency.
actual possession Possession of property with the possessor’s having
immediate control over it.
actus reus A “wrongful act” that, combined with other necessary
elements of crime, constitutes criminal liability.
ad valorem taxes Taxes based on the assessed value of the property
taxed.
adequacy of consideration A consideration that is reasonably
proportional under the circumstances.
adjudicatory procedures Procedures leading to adjudication in
administrative or judicial proceedings.
adjusted gross estate Value of an estate after subtracting all deductions
allowed by law or regulations.
administrative agencies Departments of federal, state, and local
governments exercising regulatory authority over designated areas of
services or control.
administrative law The body of law dealing with the structure,
authority, policies, and procedures of administrative and regulatory
agencies.
administrative law judges Officers appointed to hear and determine
controversies before administrative agencies of governments.
administrative search warrants Court orders authorizing searches to
determine if there are violations of regulatory laws and ordinances.
administrative searches Searches of premises by a government official
to determine compliance with health and safety regulations.
adoptive parents Parents who have adopted a child, as distinct from
“birth parents.”
advance directive for medical decisions A written document signed by
a person stating his or her desires concerning health care, often appointing
a surrogate to exercise judgment as to the extent of medical procedures to
be taken should the person signing the directive be incompetent or unable
to give directions.
adversarial system A system of justice involving conflicting parties
where the role of the judge is to remain neutral.
adverse possession Possession of real property without consent of the
owner that can result in acquiring title after a period of prescribed years
upon compliance with requirements of statutes.
affiant A person who makes an affidavit.
affidavit A written document attesting to specific facts of which the
affiant has knowledge, and sworn to or affirmed by the affiant.
affirm To uphold, ratify, or approve.
affirmative action A program under which women and/or persons of
particular minority groups are granted special consideration in
employment, government contracts, and/or admission to programs of
higher education.
affirmative defenses Defenses to a criminal charge where the defendant
bears the burden of proof. Examples include automatism, intoxication,
coercion, and duress.
after-born children Children born after a testator executes a last will
and testament.
age discrimination Giving unequal considerations to persons because of
their age. This type of discrimination is especially applicable to
employment situations.
agency adoption An adoption arranged by an adoption agency, typically
for a fee.
aggravated assault An assault committed with a dangerous weapon or
with intent to commit a felony.
aggravated battery A battery committed by use of an instrument
designed to inflict great bodily harm on the victim.
aggravating factors Factors attending the commission of a crime that
make the crime or its consequences worse.
aggregation of capital Accumulation of capital assets, usually cash,
from different sources. In corporations this usually occurs as a result of the
sale of securities to investors.
aiding and abetting Assisting in or otherwise facilitating the
commission of a crime.
alibi Defense to a criminal charge that places the defendant at some
place other than the scene of the crime at the time the crime occurred.
alimony Regular payments of money to a former spouse as required by a
court that grants a divorce.
allocution Oral statement made by a defendant prior to sentencing.
alternative dispute resolution A method of resolving disputes without
judicial adjudication. The usual means employed are arbitration and
mediation.
ambiguity Unclear meaning of terms or words.
ancillary administration An auxiliary administration of a decedent’s
estate in a state other than the state of the decedent’s domicile.
annual percentage rate of interest (APR) The rate of interest actually
paid by a borrower when the lender’s fees and “points” are considered; the
true rate of interest received from money invested when the compounding
factor is included.
annulment Judicial dissolution of marriage on the ground that a valid
marriage did not take place.
anonymous tip Information from an unknown source concerning
alleged criminal activity.
answer The defendant’s response to the allegations of the plaintiff’s
complaint or petition.
answer brief The appellee’s written response to the appellant’s law brief
filed in an appellate court.
antitrust law The body of law defining antitrust violations and
providing remedies for such violations.
antitrust violations Violations of laws designed to protect the public
from price-fixing, price discrimination, and monopolistic practices in trade
and commerce.
appeals of right Appeals brought to higher courts as a matter of right
under federal or state law.
appellant A person who takes an appeal to a higher court.
appellate courts Judicial tribunals that review decisions from lower
tribunals.
appellate jurisdiction The legal authority of a court of law to hear an
appeal from or otherwise review a decision by a lower court.
appellate procedure The rules of procedure followed by appellate
courts in deciding appeals.
appellee The party against whom a case is appealed to a higher court.
arbitration Procedure whereby controversies are resolved by a referee
or a panel of referees who make a decision on the merits of a controversy
after presentations by the disputants.
arraignment An appearance before a court of law for the purpose of
pleading to a criminal charge.
arrest warrant A document issued by a magistrate or judge directing
that a named person be taken into custody for allegedly having committed
an offense.
arson The crime of intentionally burning someone else’s house or
building, now commonly extended to other property as well.
Articles of Confederation The constitution under which the United
States was governed between 1781 and 1789.
articles of incorporation Document signed by organizers of a
corporation setting forth the name, purpose, authorized capital stock, and
other requirements of the corporation.
artificial insemination Medical procedure in which semen is injected
into a woman’s vagina in order to achieve pregnancy.
Ashwander rules Rules of judicial self-restraint articulated by Justice
Louis D. Brandeis in a concurring opinion in Ashwander v. TVA (1936).
assault The attempt or threat to inflict bodily injury upon another
person.
assignee One to whom a legal right is transferred.
assignment Transfer of legal rights.
assignor One who assigns legal rights.
assisted suicide An offense (in some jurisdictions) of aiding or assisting
a person to take his or her life.
assume the mortgage Agreement to pay the balance due on a note
secured by a mortgage.
assumption of risk A person’s voluntary exposure to known or obvious
risks.
attempt An intent to commit a crime coupled with an act taken toward
committing the offense.
attorney-client privilege The right of a person (client) not to testify
about matters discussed in confidence with an attorney in the course of the
attorney’s representation of the client.
Attorney General The highest legal officer of a state or of the United
States.
attorney’s fees (1) Sums charged by a lawyer for representation of a
client. (2) Sums awarded by a court to reimburse a litigant for fees the
litigant is obligated to pay an attorney. Attorney’s fees are generally
awarded only when authorized by a statute or a contract.
attractive nuisance A condition or machine on premises that poses a
danger or special peril to children because of its attractiveness to them.
authority of law Force of law backed by the coercive power of the state.
automatism The condition under which a person performs a set of
actions during a state of unconsciousness. For example: sleepwalking.
automobile exception Exception to the Fourth Amendment warrant
requirement allowing the warrantless search of a vehicle by police who
have probable cause to search but because of exigent circumstances are
unable to secure a warrant.
bail The conditional release from custody of a person charged with a
crime pending adjudication of the case.
bailee Person or entity entrusted with someone’s property.
bailment Entrustment of property to someone to perform some service
or repair on the property. Example: One takes a car to a mechanic to have
it repaired.
bailor One who entrusts property to another for a specified purpose.
bait and switch advertising Attempting to sell a customer a higher-
priced item after having advertised a similar item for a lower price.
bankruptcy Legal process by which honest debtors obtain relief under
laws designed to protect them from their creditors.
battered child syndrome A set of symptoms typically manifested by a
child who has suffered continued physical or mental abuse, often from a
parent or person having custody of the child.
battered woman syndrome A set of symptoms typically manifested by
a woman who has suffered continued physical or mental abuse, usually
from a male with whom she lives.
battery The unlawful use of force against another person that entails
some injury or offensive touching.
bench trial A trial held before a judge without a jury present.
beneficiaries Persons designated to receive property from another
person’s insurance policy, will, or trust.
best evidence rule The requirement that the original document or best
facsimile must be produced in court to prove the content of a writing.
best interests of the child test The doctrine under which custody of a
child is awarded to the parent who is better able to foster the child’s best
interests.
bid rigging An illegal manipulation in submitting bids to obtain a
contract, usually from a public body.
bifurcated trial A capital trial with separate phases for determining guilt
and punishment.
bilateral contract A contract between parties based on an exchange of
promises.
bill of attainder A legislative act imposing punishment without trial
upon persons deemed guilty of treason or felonies. (Prohibited by the U.S.
Constitution.)
Bill of Rights The first ten amendments to the U.S. Constitution, ratified
in 1791, concerned primarily with individual rights and liberties.
biological parents The male and female who are biologically
responsible for conceiving a child.
Blackstone’s Commentaries A codification of principles of the English
Common Law published in 1769 by Sir William Blackstone, an author and
professor.
Blockburger test A test applied by courts to determine if the charges
against a defendant would constitute a violation of the constitutional
prohibition against double jeopardy, that is, being tried twice for the same
offense. The Blockburger test holds that it is not double jeopardy for a
defendant to be tried for two offenses if each offense includes an element
that the other offense does not.
blue sky laws Common name for statutory laws designed to protect
investors from securities frauds.
board of adjustment A local board authorized to grant exceptions and
variances from land use zoning ordinances and regulations.
board of equalization A local board authorized to revise the assessed
values of properties subject to ad valorem taxation.
bona fide purchaser One who makes a purchase in good faith, that is,
without the attempt to defraud or deceive.
boot camps Institutions that provide systematic discipline in a military-
like environment designed to rehabilitate an offender; employed as a
sentencing alternative.
border searches Searches of persons entering the borders of the United
States.
breach of contract The violation of a provision in a legally enforceable
agreement that gives the damaged party the right to recourse in a court of
law.
breach of duty Failure to act or refrain from acting as required by law.
bribery The crime of offering, giving, requesting, soliciting, or receiving
something of value to influence a decision of a public official.
building codes Governmental regulations specifying the requirements
for the construction of buildings.
Bureau of Alcohol, Tobacco and Firearms Federal agency located
within the Department of the Treasury empowered to enforce federal
statutes dealing with intoxicating beverages, tobacco products, guns, and
explosives.
burglary At common law, the crime of breaking and entering a house at
night with the intent to commit a felony therein. Under modern statutes,
burglary frequently consists of breaking and entering a structure or
conveyance at any time with the intent to commit any offense therein.
business and public records Records kept in the ordinary course of
business and records required to be kept by governments.
“but for” test A test to determine causation in negligence actions. The
test asks, “Would an injury have occurred ‘but for’ the defendant’s
actions?”
canon law The laws of a church.
capacity to contract Legal ability to enter into a binding agreement.
capias A general term for various court orders requiring that some
named person be taken into custody.
capital crimes Crimes punishable by death.
carjacking Taking a motor vehicle from someone by force and violence
or by intimidation.
case management conference A meeting between a judge and counsel
to review the status of a case before the court and to plan necessary steps
to conclude the case.
castle doctrine “A man’s home is his castle.” At common law, the right
to use whatever force is necessary to protect one’s dwelling and its
inhabitants from an unlawful entry or attack.
causation An act that produces an event or an effect.
cause of action A right to bring suit based on someone’s breach of a
legal duty.
caveat emptor “Let the buyer beware.” Common law maxim requiring
the consumer to judge the quality of a product before making a purchase.
cease and desist orders An order issued by an administrative agency
requiring a person to stop certain designated activities.
ceremonial marriages A marriage celebrated in conformity with
requirements of the law.
certificate of incorporation A legal charter to conduct business as a
corporation issued by a government, usually the state.
challenges for cause Objections to prospective jurors on some specified
ground (e.g., a close relationship to a party to the case).
charitable immunity Doctrine of law that relieves a charitable
organization from liability for its acts. (Doctrine of declining importance
in the United States.)
check A written document by a depositor directing the bank to pay a
certain sum to the order of a named payee.
checks and balances Refers to constitutional powers granted each
branch of government to prevent one branch from dominating the others.
child-out-of-wedlock A child born of parents who were not married at
the time the child was born and who did not subsequently marry one
another.
child shield statutes Laws that allow a screen to be placed between a
child victim of sexual abuse and a defendant while the child testifies in
court.
child snatching A parent’s removal of his or her child from jurisdiction
of the court in order to obtain custody either by self-help or from a court in
another jurisdiction.
child support Financial obligation of a parent to support a minor child.
child support requirements Amount required to be paid (by agreement
or court order) for support of minor children.
child visitation rights Rights of a divorced non-custodial parent to visit
his or her child. Visitation rights may be established by agreement of the
parents or by court order.
children of tender years Young children; sometimes pre-teen children
are referred to as children of tender years.
chose in action A right not reduced to possession but recoverable by a
lawsuit. Example: A right to receive wages is a chose in action.
circumstantial evidence Indirect evidence from which the existence of
certain facts may be inferred.
citation (1) A summons to appear in court, often used in traffic
violations. (2) A reference to a statute or court decision, often designating
a publication where the law or decision appears.
civil contempt Intentional disobedience of a court order.
civil disobedience Purposeful, peaceful lawbreaking to dramatize one’s
opposition to the law.
civil law (1) The law relating to rights and obligations of parties. (2) The
body of law, based essentially on Roman Law, that prevails in most non-
English-speaking nations.
civil procedure The rules of procedure followed by courts in
adjudicating civil cases.
civil rights legislation Statutes protecting persons against various forms
of unlawful discrimination.
civil service The system under which government employees are
selected and retained based on merit rather than political patronage.
civil suit Any court action other than a criminal prosecution.
civil union A legally sanctioned same-sex relationship carrying all of the
rights and duties of marriage.
class action A lawsuit brought by one or more parties on behalf of
themselves and others similarly situated.
clear and present danger doctrine The doctrine that the First
Amendment protects expression up to the point that it poses a clear and
present danger of bringing about some substantive evil that government
has a right to prevent.
clergy privilege The exemption of a clergyperson and a penitent from
disclosing communications made in confidence by the penitent.
closely held corporation A corporation whose stock is held by a small
group of stockholders who often actively conduct the corporate business.
closing arguments Arguments presented at trial by counsel at the
conclusion of the presentation of evidence.
Code of Justinian Code of laws compiled by the Roman Emperor
Justinian c. 535 A.D.
codicil An amendment to a last will and testament.
codification Collection of laws usually indexed by subject matter.
coercive federalism Refers to efforts by the federal government to use
its spending power to induce the states to adopt policies they would not
otherwise adopt, such as raising the legal drinking age to twenty-one.
collateral Cash or other asset pledged as security for repayment of a
debt.
collateral attack The attempt to defeat the outcome of a judicial
proceeding by challenging it in a different proceeding or court.
collateral source rule A rule that allows a jury, when considering an
award of damages to an injured plaintiff, to consider the sums the plaintiff
will receive from sources other than the defendant. For example, workers
compensation or other insurance.
collective bargaining Negotiations between representatives (usually
union leaders) on behalf of employees and representatives on behalf of an
employer. Bargaining usually focuses on wages and working conditions.
collegial courts A judicial tribunal consisting of more than one judge,
for example, federal and state appellate courts.
commercial paper Short-term unsecured debt instruments.
common law marriages Marriages recognized at common law simply
on the basis of cohabitation.
common law pleading English common law system of filing various
written documents in litigation to arrive at the issues to be resolved by the
court.
common stock Class of corporate security whose holders have the right
to vote to elect directors.
community-oriented policing Style of policing in which officers
attempt to form constructive and respectful relationships with the
communities they serve.
community property Property acquired by a husband and wife during
their marriage, other than property acquired by gift or inheritance, in a
state that has community property laws.
community property states States (primarily in the western United
States) that have community property laws.
community service A sentence requiring that the criminal perform some
specific service to the community for some specified period of time.
comparative negligence Doctrine of tort law that allows a plaintiff to
recover damages from a defendant in a negligence action even though the
plaintiff is negligent to some degree but that reduces the plaintiff’s award
based on the amount of the plaintiff’s negligence.
compensatory damages Amount awarded a plaintiff to compensate for
injury or losses suffered.
competent Legally qualified.
complaint An initial document filed in court to inform the defendant of
the nature and extent of the plaintiff’s claim against the defendant.
compounding a crime The acceptance of money or something else of
value in exchange for an agreement not to prosecute a person for
committing a crime.
compulsory process The requirement that witnesses appear and testify
in court or before a legislative committee. See also subpoena.
compulsory self-incrimination The requirement that an individual give
testimony leading to his or her own criminal conviction. Forbidden by the
U.S. Constitution, Amendment V.
computer crimes Crimes perpetrated through the use of computer
technology.
concurrent jurisdiction Jurisdiction that is shared by different courts of
law.
concurrent powers Powers exercised jointly by the state and federal
governments.
concurring in the judgment An opinion by a judge or justice agreeing
with the judgment of an appellate court without agreeing with the court’s
reasoning process.
concurring opinion An opinion by a judge or justice agreeing with the
decision of the court. A concurring opinion may or may not agree with the
rationale adopted by the court in reaching its decision (see opinion of the
court).
condominium Building whose owners have title to individual units in a
multi-unit structure and who have title in common with other owners to the
amenities and other common elements of the property.
condominium association Organization of condominium owners that
governs the maintenance and uses of the amenities and other common
elements of the property. (1) A form of ownership in common with other
owners; (2) as presently defined.
confidential informant (CI) An informant known to the police but
whose identity is held in confidence.
confusion Mixing of goods belonging to different owners.
Congress The national legislature of the United States established by
Article I of the U.S. Constitution.
consent Voluntarily yielding to the will or desire of another person.
consent to a search The act of a person’s voluntarily permitting police
to conduct a search of person or property.
consideration A benefit or detriment bargained for by parties who form
a contract.
consortium The right of companionship and services that each spouse
has in relation to the other spouse.
conspiracy The crime of two or more persons agreeing or planning to
commit a crime. The crime of conspiracy is distinct from the crime
contemplated by the conspirators (the “target crime”).
constitution A nation’s fundamental law.
constructive notice Knowledge of facts imputed to someone who by
proper diligence should have become aware of the facts.
constructive possession The ability to effectively control something,
even if it is not actually in one’s possession.
constructive service A form of service of court process other than by
personal delivery to the intended recipient. Constructive service is
sometimes accomplished by a notice published in a newspaper with a copy
sent to the last known address of the intended recipient.
contempt An action that embarrasses, hinders, obstructs, or is calculated
to lessen the dignity of a judicial or legislative body.
contempt of court Any action that embarrasses, hinders, obstructs, or is
calculated to lessen the dignity of a court of law.
contingent fee A fee to be paid to an attorney only in the event the
attorney prevails in court on behalf of the client.
continuity of management Pattern of uninterrupted management.
contractual status In family law, the recognition that marriage not only
involves a contractual relationship but also, because of the state’s interest
in the institution of marriage, results in a contractual status.
contributory negligence A common law rule that provides that where a
plaintiff’s own negligence contributed to an injury, the plaintiff is barred
from recovering damages against a defendant.
conversion The unlawful assumption of the rights of ownership to
someone else’s property.
cooperative A form of ownership where a person buys shares of stock in
a corporation in order to occupy a unit in an apartment or business
building.
cooperative federalism A modern approach to American federalism in
which powers and functions are shared among national, state, and local
authorities.
corporal punishment Punishment that inflicts pain or injury on a
person’s body.
corporate charter A certificate of incorporation issued by federal or
state government authorizing an organization to conduct business as a
corporation.
corporation “…[a]n artificial being, invisible, intangible, and existing
only in contemplation of law…” Dartmouth College v. Woodward (1819);
an entity with legal powers chartered under law and designed to exist
indefinitely where ownership is vested in stockholders.
corpus delicti “The body of the crime.” The material thing upon which a
crime has been committed (for example, a burned-out building in a case of
arson).
cost-benefit analysis Systematic assessment of the costs and benefits
that will result from a given transaction.
counterclaim A request by the defendant for relief against the plaintiff.
court-martial A military court.
Court of Federal Claims Specialized federal trial court established to
adjudicate tort claims brought against agencies of the United States
government.
Court of International Trade A federal court that hears cases involving
the federal government and importers of goods.
court of last resort The highest court in a judicial system, the last resort
for deciding appeals.
court of limited jurisdiction A trial court with narrow authority to hear
and decide cases, typically misdemeanors and/or small claims.
Court of Veterans’ Appeals A federal court that hears appeals from
denials of veterans benefits.
covenant not to compete A contract not to act in competition.
covenants Agreements; promises.
credit card fraud The offense of using a credit card to obtain goods or
services by a person who knows that the card has been stolen, forged, or
canceled.
credit cardholders One who possesses a credit card that allows the
cardholder to obtain credit in accordance with the terms of a contract
between the cardholder and the issuing institution.
crime An offense against society punishable under the criminal law.
criminal contempt See contempt.
criminal intent A necessary element of a crime—the evil design
associated with the criminal act.
criminal law The law defining crimes and punishments.
criminal procedure The rules of law governing the procedures by
which crimes are investigated, prosecuted, adjudicated, and punished.
criminal prosecution The process by which a person is charged with a
criminal offense.
cross-claim A claim asserted in a lawsuit by one party against a co-
party.
cross-examination The process of interrogating a witness who has
testified on direct examination by asking the witness questions concerning
testimony given. Cross-examination is designed to bring out any bias or
inconsistencies in the witness’s testimony.
cruel and unusual punishments Punishment that shocks the moral
conscience of the community, for example, torturing or physically beating
a prisoner.
custodial parent A parent that has legal custody of a minor child.
custody The right and obligation to shelter and care for a minor child.
damages Monetary compensation awarded by a court to a person who
has suffered injuries or losses to person or property as a result of someone
else’s conduct.
dangerous instrumentality An instrument that has inherently dangerous
characteristics.
de jure corporation A body corporate organized and existing under law.
deadlocked jury A jury where the jurors cannot agree on a verdict.
deadly force The degree of force that may result in the death of the
person against whom the force is applied.
death penalty Capital punishment; a sentence to death for the
commission of a crime.
death qualification of a jury The process by which a jury is selected
whose members do not entertain scruples against imposing a death
sentence.
decisional law Law declared by appellate courts in their written
decisions and opinions.
Declaration of Independence Formal document of July 4, 1776,
establishing the United States of America as an independent nation.
declaratory relief A court decision establishing rights of parties.
deed of trust A deed by which a borrower conveys legal title to real
estate to a trustee who holds title as security for a lender.
defamation A tort involving the injury to one’s reputation by the
malicious or reckless dissemination of a falsehood.
default Failure to do some act required by contract or by law.
default judgment A judgment entered by a court due to a defendant’s
failure to respond to legal process or to appear in court to contest the
plaintiff’s claim.
defendant A person charged with a crime or against whom a civil action
has been initiated.
defense of a third person Aiding or assisting a person being attacked.
deficiency judgment A judgment entered by a court for sums remaining
due a creditor or mortgagee after the creditor repossesses and sells goods
or after a mortgagee forecloses and causes the mortgaged property to be
sold.
definite sentence Criminal penalty set by law with no discretion for the
judge or correctional officials to individualize punishment.
definite sentencing Legislatively determined sentencing with no
discretion given to judges or corrections officials to individualize
punishment.
delagatee One to whom a power, authority, or responsibility has been
transferred.
delegation Act of transferring a power, authority, or responsibility to a
person or agency.
delegations of power Transfer of legal right to act.
delagator One who transfers a power, authority, or responsibility.
Department of Justice The department of the federal government that is
headed by the Attorney General and staffed by United States Attorneys.
deportation The legal process by which an alien is expelled from a host
country.
deposition The recorded sworn testimony of a witness; not given in open
court.
derivative evidence Evidence that is derived from or obtained only as a
result of other evidence.
determinate sentencing The process of sentencing whereby the judge
sets a fixed term of years within statutory parameters and the offender
must serve that term without possibility of early release.
deterrence Prevention of criminal activity by punishing criminals so that
others will not engage in such activity.
devisees Beneficiaries of real property under a last will and testament.
diplomatic immunity A privilege to be free from arrest and prosecution
granted under international law to diplomats, their staffs, and household
members.
direct evidence Evidence that applies directly to proof of a fact or
proposition. For example, a witness who testifies to having seen an act
done or heard a statement made is giving direct evidence.
direct examination Interrogation by an attorney of a party or a witness
called to testify.
directed verdict A verdict rendered by a jury upon direction of the
presiding judge.
disaffirm Repudiate; disavow. For example, a minor can ordinarily
disaffirm a contract.
discharge from debts The object of a debtor who files a bankruptcy
proceeding. In such a proceeding, an honest debtor who complies with all
requirements of the law receives a discharge, that is, a release, from most
debts.
disclosure of information To reveal or make known certain facts.
discovery A process whereby counsel seek to obtain information from
parties in a lawsuit through interrogatories and depositions.
discretionary activities Actions taken that are not prescribed by law.
discretionary review Form of appellate court review of lower court
decisions that is not mandatory but occurs at the discretion of the appellate
court. See also certiorari.
discrimination Treatment of persons unequally based on their race,
religion, sex, or national origin.
discrimination against persons with disabilities Treatment of persons
unequally based on their disabilities.
disinherited Deprived of receiving an inheritance from a decedent.
disorderly conduct Illegal behavior that disturbs the public peace or
order.
disparate impact A facially neutral law or policy that has a differential
impact on members of different races or genders.
dissenting opinion A written opinion by a judge or justice setting forth
reasons for disagreeing with a particular decision of the court.
dissolution of marriage Legal termination of a marriage through
divorce or annulment.
distributive articles Articles I, II, and III of the U.S. Constitution,
delineating the powers and functions of the legislative, executive, and
judicial branches, respectively, of the national government.
diversity of citizenship jurisdiction The authority of federal courts to
hear lawsuits in which the parties are citizens of different states and the
amount in controversy exceeds $75,000.
divine law Law ascribed to a Supreme Being.
divorce Termination of a marriage by a court judgment.
divorce a mensa et thoro A divorce from bed and board; a divorce
judgment that does not legally terminate a marriage.
doctrine of harmless error Legal principle that holds that an appellate
court should not reverse a decision of a lower tribunal because of an error
that does not affect the substantial rights of the parties.
doctrine of incorporation (1) The practice of allowing one document to
be made part of another by specific reference. (2) In constitutional law, the
doctrine that the Fourteenth Amendment incorporates the provisions of the
Bill of the Rights and thus makes them applicable to the states.
doctrine of original intent Doctrine that holds that a court should
interpret a constitution based on the intent of those who drafted it.
domestic corporation A corporation doing business in the state of its
incorporation.
domestic partnership An agreement between two persons of the same
sex to live and cohabit together.
domicile Place of a person’s permanent residence.
dominion and control Ability to exercise the right to property and
authority to direct its disposition.
donee One who receives a gift.
donor One who makes a gift.
double jeopardy The condition of being tried twice for the same
criminal offense.
draft A written order drawn on one party by another and requesting that
payment be made to a third party.
dram shop acts Statutes prohibiting sales of alcoholic beverages to
minors or intoxicated persons.
drawee Party on whom a draft is drawn.
drawer Party who draws an order on another party (drawee) requesting
the drawee to make payment to a third party.
drug courier profile A controversial law enforcement practice of
identifying possible drug smugglers by relying on a set of characteristics
and patterns of behavior believed to typify persons who smuggle drugs.
drug testing The practice of subjecting employees to urine tests to
determine whether they are using illegal substances.
dual federalism A concept of federalism in which the national and state
governments exercise authority within separate, self-contained areas of
public policy and public administration.
DUBAL Driving with an unlawful blood alcohol level.
due-on-sale clause A provision in a mortgage that stipulates that the
entire unpaid balance due on the mortgaged indebtedness will become due
upon transfer of the property that is collateral for the mortgage debt.
due process of law Procedural and substantive rights of citizens against
government actions that threaten the denial of life, liberty, or property.
durable power of attorney A written document in which a person (the
principal) designates another person to act as an agent for specified
purposes, especially for making health care decisions. The “durable”
characteristic means the power of attorney remains effective even if the
principal becomes incapacitated.
duress The use of illegal confinement or threats of harm to coerce
someone to do something he or she would not do otherwise.
duty An obligation that a person has by law or contract.
dying declaration Statement made by a person who believes that his or
her death is imminent. A dying declaration is generally considered an
exception to the hearsay rule of evidence.
easement A right of use over the property of another. This term
frequently refers to a right-of-way across privately owned land.
easement of necessity Right to use a part of someone else’s land as a
right-of-way for purposes of ingress to and egress from otherwise
landlocked property.
elective share A share of a deceased spouse’s estate that a surviving
spouse is entitled to claim in some states.
Electoral College The body of electors chosen by the voters of each
state and the District of Columbia for the purpose of formally electing the
President and Vice President of the United States. The number of electors
(538) is equivalent to the total number of representatives and senators to
which each state is entitled, plus three electors from the District of
Columbia.
electronic eavesdropping Covert listening to or recording of a person’s
conversations by electronic means.
emancipation acts (1) Laws that allow persons considered legally
incapable of entering into legal transactions to enter contracts and other
legal transactions. In past decades applied to married women. (2) Laws
that remove the disability of a minor to enter contracts once the minor
marries. (3) Laws that allow courts to permit mature minors to enter legal
transactions.
embezzlement The crime of using a position of trust or authority to
transfer or convert the money or property of another to oneself.
emergency searches Warrantless searches performed during an
emergency, such as a fire or potential explosion.
eminent domain The power of government, or of individuals and
corporations authorized to perform public functions, to take private
property for public use. The Fifth Amendment requires that private
property cannot be taken for public use without just compensation.
employment discrimination Denying employment or treating
employees unequally based on their disabilities, race, religion, sex, or
national origin.
en banc rehearing A rehearing in an appellate court in which all or a
majority of the judges participate.
enabling legislation As applied to public law, a statute authorizing the
creation of a government program or agency and defining the functions
and powers thereof.
endangered species An animal species that has been officially
designated as endangered by the Secretary of Interior under the
Endangered Species Act.
English common law A system of legal rules and principles recognized
and developed by English judges prior to the colonization of America and
accepted as a basic aspect of the American legal system.
entrapment The act of government agents in inducing someone to
commit a crime that the person otherwise would not be disposed to
commit.
enumerated powers Powers specified in the text of the federal and state
constitutions.
environmental crimes Statutes that impose punishment for violations of
laws enacted to protect the environment and natural resources.
environmental impact statement A document required by law
outlining the effects that a proposed land development will likely have on
the surrounding environment.
environmental law The body of law protecting the natural environment
from pollution and despoliation.
environmental regulations Regulations adopted by administrative
agencies designed to implement statutory protections of the environment.
equal protection of the laws Constitutional requirement that the
government not engage in prohibited forms of discrimination against
persons under its jurisdiction.
equitable distribution A distribution of property that is fair, just, and
reasonable.
equity Historically, a system of rules, remedies, customs, and principles
developed in England to supplement the harsh common law by
emphasizing the concept of fairness. In addition, because the common law
served only to recompense after injury, equity was devised to prevent
injuries that could not be repaired or recompensed after the fact. While
American judges continue to distinguish between law and equity, these
systems of rights and remedies are, for the most part, administered by the
same courts.
error correction See error correction function.
error correction function The function of appellate courts in correcting
errors committed by lower tribunals in their interpretation and application
of law, evidence, and procedure.
escape Unlawfully fleeing to avoid arrest or confinement.
estates during the life of another An interest in real property that can
be enjoyed only during the lifetime of a named person.
estates in real property Interests in lands and property attached thereto.
evanescent evidence Evidence that tends to disappear or to be
destroyed. Often police seek to justify a warrantless search on the ground
that destruction of the evidence is imminent.
evidentiary presumption Establishment of one fact allows inference of
another fact or circumstance.
ex post facto law A retroactive law that criminalizes actions that were
innocent at the time they were taken or increases punishment for a criminal
act after it was committed.
excessive bail Where a court requires a defendant to post an
unreasonably large amount or imposes unreasonable conditions as a
prerequisite for a defendant to be released before trial. The Eighth
Amendment to the U.S. Constitution prohibits courts from requiring
“excessive bail.”
excessive fines Fines that are deemed to be greater than is appropriate
for the punishment of a particular crime.
exculpatory information That which exonerates or tends to exonerate a
person from fault or guilt.
excusable homicide A death caused by accident or misfortune.
executed contract A contract that has been completely performed.
executive order An order by a president or governor directing some
particular action to be taken.
executive power The power to enforce the law and administer the
government.
executive privilege The right of the President to withhold certain
information from Congress or a court of law.
executory contract An agreement not yet performed by the parties.
exhaustion of remedies The requirement that a party seeking review by
a court first exhaust all legal options for resolution of the issue by
nonjudicial authorities or lower courts.
exigent circumstances Situations that demand unusual or immediate
action.
expert witness A witness with specialized knowledge or training called
to testify in his or her field of expertise.
express contract A contract where the terms have been expressed orally
or in writing by the parties.
express powers Powers explicitly granted by some instrument, whether
a constitution, statute, or contract.
expressive conduct Conduct undertaken to express a message.
extortion The crime of obtaining money or property by threats of force
or the inducement of fear.
extradition The surrender of a person by one jurisdiction to another for
the purpose of criminal prosecution.
extraordinary life-sustaining measures Medical measures to prolong
life beyond ordinary feeding and care. A good example is a mechanical
respirator.
eyewitness testimony Testimony given by a person based on personal
observation of an event.
fair hearing A hearing in a court of law that conforms to standards of
procedural justice.
fair notice The requirement stemming from due process that government
provide adequate notice to a person before it deprives that person of life,
liberty, or property.
false imprisonment The crime of holding someone against their will
without legal justification.
false pretenses The crime of obtaining money or property through
misrepresentation.
fault concept (1) In family law, the requirement that one spouse must
prove the other spouse to be at fault before a court grants a divorce. (2) In
tort law, the basis of imposing liability because of a person’s failure to act
as a reasonably prudent individual would act under given circumstances.
Federal Bureau of Investigation (FBI) The primary federal agency
charged with investigating violations of federal criminal laws.
federal bureaucracy The collective term for the myriad departments,
agencies, and bureaus of the federal government.
federal estate tax A tax imposed by the U.S. government on the estates
of decedents.
federal habeas corpus review Review of a state criminal trial by a
federal district court on a writ of habeas corpus after the defendant has
been convicted, has been incarcerated, and has exhausted appellate
remedies in the state courts.
federal magistrate judges Judges appointed to preside over pretrial
proceedings, try misdemeanor case, and with consent of parties handle
civil trials in federal courts.
federal question jurisdiction The authority of federal courts to decide
issues of national law.
federalism The constitutional distribution of government power and
responsibility between the national government and the states.
fee simple estate The highest interest in real property that the law
recognizes.
fee tail estates An estate in real property conveyed to a person (grantee)
and to the heirs of the grantee’s body.
felony A serious crime for which a person may be incarcerated for more
than one year.
felony murder A homicide committed during the course of committing
another felony other than murder (e.g., armed robbery). The felonious act
substitutes for malice aforethought ordinarily required in murder.
fictitious name laws A law that requires persons who operate a business
under a name other than their own to register that fact with a government
office.
fighting words Utterances that are inherently likely to provoke a violent
response from the audience.
financing statement A document filed with an appropriate government
office that notifies the public that specified property is subject to existing
loans.
fines Sums of money exacted from criminal defendants as punishment
for wrongdoing.
firefighter’s rule English common law doctrine applied in many states.
Treats a police officer or firefighter as a licensee, thereby limiting a
landowner’s liability to such persons who enter premises as part of their
duties.
first-degree murder The highest degree of unlawful homicide, usually
defined as “an unlawful act committed with the premeditated intent to take
the life of a human being.”
flight to avoid prosecution Unlawful travel to escape prosecution for a
crime.
force majeure clauses A contract provision excusing performance when
a superior force makes performance impossible. See Acts of God.
foreign corporation A corporation doing business or maintaining an
office in a state other than its state of incorporation.
forensic evidence Evidence usually in the form of testimony offered by
a forensic expert. See forensic experts.
forensic experts Persons qualified in the application of scientific
knowledge to legal principles, usually applied to those who participate in
discourse or who testify in court.
foreperson The person selected by fellow jurors to chair deliberations
and report the jury’s verdict.
foreseeable An event that a reasonable person would ordinarily
anticipate from one’s act or failure to act.
forfeiture Sacrifice of ownership or some right (usually property) as a
penalty.
forgery The crime of making a false written instrument or materially
altering a written instrument (e.g., a check, promissory note, or college
transcript) with the intent to defraud.
formal adjudication Official determination (usually by an
administrative tribunal).
formal contracts A contract that complies with specific requirements of
law. Examples: a check or draft.
foster care Placing a child in the care of person(s) who perform the
duties of a parent, usually under supervision of a social welfare agency.
Fourteenth Amendment Amendment to the U.S. Constitution, ratified
in 1868, prohibiting states from depriving persons in their jurisdictions of
due process and equal protection.
fraud Intentional deception or distortion in order to gain something of
value.
fraud, duress, or undue influence Intentional deception or false
representations, unlawful coercion, or pressure to override a person’s free
will. (Terms frequently used in contests concerning execution of a last will
and testament.)
freedom of association Implicitly protected by the First Amendment,
the right of people to associate freely without unwarranted interference by
government.
freedom of expression A summary term embracing freedom of speech
and freedom of the press as well as symbolic speech and expressive
conduct.
fruit of the poisonous tree doctrine A doctrine based on judicial
interpretation of the Fourth Amendment that holds that evidence that is
derived from illegally seized evidence cannot be used by the prosecution.
full warranty A written consumer product warranty that complies with
the Magnuson-Moss Warranty Act.
fundamental error An error in a judicial proceeding that adversely
affects the substantial rights of the accused.
gambling Operating or playing a game for money in the expectation of
gaining more than the amount played.
garnishee A party (usually a bank or employer) who is required to
withhold payment due or to become due to someone and pay it over to the
garnishor.
garnishment Court action requiring a party (garnishee) who is indebted
to a person to withhold payment and pay a sum over to a creditor
(garnishor) who instituted garnishment proceedings.
garnishor A party who institutes a garnishment proceeding.
gay rights Summary term referring to the idea that persons should be
permitted to engage in private homosexual conduct and be free from
discrimination based on their sexual orientation.
gender-based peremptory challenge A challenge to a prospective
juror’s competency to serve based solely on the prospective juror’s gender.
gender discrimination Treating a person in an unequal manner based on
the person’s sex.
gender equity Idea that women should receive equal benefits conferred
by government.
general damages Damages that have accrued to the plaintiff due to a
particular injury or loss.
general intent The state of mind to do something prohibited by law
without necessarily intending to accomplish the harm that results from the
illegal act.
general objection An objection raised against a witness’s testimony or
introduction of evidence when the objecting party does not recite a specific
ground for the objection.
general partner A member of a partnership who shares with other
partners the management and the profits and losses of the business.
general verdict Ordinary form of jury verdict in civil case that finds for
the plaintiff or defendant in general terms; in criminal case, finds the
defendant not guilty or guilty of specified crime(s).
gerrymandering The intentional manipulation of legislative districts for
political purposes.
gestational surrogacy A method of surrogate parenthood where the
sperm of a married man is artificially united with the egg of his wife and
the resulting pre-embryo is implanted in another woman’s womb.
good-faith exception An exception to the exclusionary rule that bars use
of evidence obtained by a search warrant found to be invalid. The
exception allows use of the evidence if the police relied in good faith on
the search warrant, even though the warrant is subsequently held to be
invalid.
good-time credit Credit toward early release from prison based on good
behavior during confinement (often referred to as “gain time”).
grand jury A group of twelve to twenty-three citizens convened to hear
evidence in criminal cases to determine whether indictment is warranted.
grandfathered in Allowed to continue. Example: If a land use zoning
ordinance changes the classification of zoning, an existing use that is
permitted to continue is said to be “grandfathered in.”
grandparents’ visitation The right of grandparents to visit their
grandchildren.
grantee One to whom a grant is made. Usually refers to a person or
entity that acquires title to real estate.
grantor One who makes a grant. Usually refers to a person or entity that
deeds property to another person or entity.
grantor or settlor Person who executes a document creating a trust.
gratuitous bailments Entrustment of property for benefit of bailor to a
person (bailee) who receives no compensation and has a limited
responsibility.
gross negligence Carelessness of an outrageous character.
gun control legislation Laws restricting the manufacture, design,
importation, sale, or possession of firearms.
habeas corpus “You have the body.” A judicial order issued to an
official holding someone in custody, requiring the official to bring the
prisoner to court for the purpose of allowing the court to determine
whether that person is being held legally.
habitual offender One who has been repeatedly convicted of crimes.
hazardous waste regulations Government regulations affecting the
shipment, storage, and disposal of toxic and radioactive waste products.
hearsay evidence Statements made by someone other than a witness
offered in evidence at a trial or hearing to prove the truth of the matter
asserted.
heirs Persons entitled to succeed to the property of a decedent who dies
intestate.
hot pursuit (1) The right of police to cross jurisdictional lines to
apprehend a suspect or criminal. (2) The Fourth Amendment doctrine
allowing warrantless searches and arrests where police pursue a fleeing
suspect into a protected area.
house arrest A sentencing alternative to incarceration where the
offender is allowed to leave home only for employment and approved
community service activities.
housing discrimination Treatment of applicants for housing or tenants
on terms unequally applied based on race, religion, sex, or national origin.
hung jury A trial jury unable to reach a verdict.
hypothetical question A question based on an assumed set of facts.
Hypothetical questions may be asked of expert witnesses in criminal trials.
illegal act Any act that violates a provision of law.
illegitimate child A child born out-of-wedlock.
illusory Deceptive; based on a false impression. Courts will not enforce
an illusory contract where a party has made a vague, insubstantial, or
deceptive promise.
imminent lawless action Unlawful conduct that is about to take place
and that is inevitable unless there is intervention by the authorities.
immunity Exemption from civil suit or prosecution. See also use
immunity; transactional immunity.
impeachment (1) A legislative act bringing a charge against a public
official that, if proven in a legislative trial, will cause his or her removal
from public office. (2) Impugning the credibility of a witness by
introducing contradictory evidence or proving his or her bad character.
implied consent An agreement or acquiescence manifested by a
person’s actions or inaction.
implied contract An agreement formed based on actions or inactions of
the parties.
implied powers Powers not specifically enumerated but implied by an
instrument such as a constitution, statute, or contract.
implied warranty A warranty that is implied based on the nature of the
transaction, the relationship of the parties, and the circumstances and
customs.
implied warranty of fitness of goods A warranty under the Uniform
Commercial Code that goods are suitable for the buyer’s intended use.
implied warranty of merchantability A warranty imposed on
merchants that goods sold are such as to allow the buyer to assume they
are as defined in the Uniform Commercial Code.
impossibility of performance Where circumstances beyond the control
of a contracting party make it impossible to perform under a contract.
impoundment (1) Action by a president in refusing to allow
expenditures approved by Congress. (2) In criminal law, the seizure and
holding of a vehicle or other property by the police.
improper disclosure of personal information Revealing a person’s
private information without that person’s consent and when not required
by law.
in camera “In a chamber.” In private. Refers to a judicial proceeding or
conference from which the public is excluded.
in forma pauperis “In the manner of a pauper.” Waiver of filing costs
and other fees associated with judicial proceedings to allow an indigent
person to proceed.
in vitro fertilization A technique whereby human ova are placed in a
laboratory dish with human sperm, and after fertilization the embryo is
transferred into the uterus of a woman who is to serve as surrogate mother
of the developing fetus.
incapacitation Making it impossible for someone to do something.
incarceration Imprisonment.
inchoate offense An offense preparatory to committing another crime.
Inchoate offenses include attempt, conspiracy, and solicitation.
indefinite sentencing Form of criminal sentencing whereby a judge
imposes a term of incarceration within statutory parameters, and
corrections officials determine actual time served through parole or other
means.
independent agencies Federal agencies located outside the major
Cabinet-level departments.
independent contractor A party to a contract who agrees to perform
specified work under his or her own methods and supervision.
independent counsel A special prosecutor appointed to investigate and,
if warranted, prosecute official misconduct.
independent source doctrine The doctrine that permits evidence to be
admitted at trial as long as it was obtained independently from illegally
obtained evidence.
indeterminate sentencing Form of criminal sentencing where criminals
are sentenced to prison for indeterminate periods until corrections officials
determine that rehabilitation has been accomplished.
indictment A formal document handed down by a grand jury accusing
one or more persons of the commission of a crime or crimes.
indirect evidence Inferences and presumptions that tend to establish a
fact or issue.
infancy The condition of being below the age of legal majority.
inflammatory remarks Remarks by counsel during a trial designed to
excite the passions of the jury.
informal adjudication A form of administrative adjudication that
observes only minimal procedural requirements.
informal contracts Contract for which the law does not prescribe a set
form.
information A document filed by a prosecutor under oath charging one
or more persons with commission of a crime.
informed consent A doctrine of consent applicable in professional
malpractice cases, especially those involving surgery. Example: An
informed consent to surgery is based on the physician’s explaining the
risks before a patient consents to a procedure.
inheritance tax A tax imposed by many states on the receipt of property
from a decedent.
initial appearance After arrest, the first appearance of the accused
before a judge or magistrate.
initial brief Appellant’s brief filed in support of issues raised in
appellate court.
initial pleading Petition or complaint filed to initiate a proceeding in a
judicial tribunal.
injunction A court order prohibiting someone from doing some
specified act or commanding someone to undo some wrong or injury.
Inns of Court English institutions founded in the fourteenth century
where judges and experienced barristers served as teachers and mentors to
those aspiring to become barristers.
insanity A degree of mental illness that negates the legal capacity or
responsibility of the affected person.
insider information Information concerning financial matters and
prospective actions of a corporation available only to persons within the
corporation.
insider trading Transactions in securities by a person who operates
“inside” a corporation and by using material nonpublic information trades
to his or her advantage without first disclosing that information to the
public.
intangible personal property Property with no tangible value, such as
bonds, promissory notes, and stock certificates.
intentional acts Acts committed purposely.
intentional infliction of emotional distress Outrageous conduct that
causes a person mental and emotional suffering. Recognized as a tort in
many jurisdictions.
intentional tort committed under color or authority of law An act
committed under color of state authority that deprives a person of a federal
constitutional right.
intentions of the Framers The intentions of the Framers of the United
States Constitution with respect to the meaning of its provisions.
intermediate appellate courts Appellate courts positioned below the
supreme or highest appellate court. Their primary function is to decide
routine appeals not deserving review by the Supreme Court.
interrogatories Written questions put to a witness.
interspousal immunity A common law doctrine that prevented spouses
from suing one another for commission of a tort.
interstate abduction In family law, a non-custodial parent’s removal of
his or her child to another state usually to attempt to escape the exercise of
jurisdiction by the courts of the child’s residence.
interstate disputes concerning child custody Conflicting claims of
jurisdiction between courts in different states concerning control and
supervision of children.
intervening act An act (either human or natural) that occurs after an
original tortious act. An intervening act can excuse the original tortfeasor
from liability unless the tortfeasor should have anticipated the occurrence
of the intervening act.
inter vivos trust A trust established during the lifetime of the grantor or
settlor.
intestate succession The descent of property of a decedent who dies
intestate. See also heirs; inheritance tax.
intoxication A state of drunkenness resulting from the use of alcoholic
beverages or drugs.
invasion of privacy A tort involving the unreasonable or unwarranted
intrusion on the privacy of an individual.
inventory search An exception to the warrant requirement that allows
police who legally impound a vehicle to conduct a routine inventory of the
contents of the vehicle.
investigatory detention Brief detention of suspects by a police officer
who has reasonable suspicion that criminal activity is afoot. See also stop-
and-frisk.
invitee One who is expressly or impliedly invited. Generally refers to
entry on another’s land or into another’s premises.
involuntary dismissal Dismissal of a law action based on legal grounds.
irretrievably broken Unable to be repaired (a term of art pertaining to
divorce).
irrevocable trust A trust that cannot be revoked.
Jencks Act The common name for a federal statute that permits a
defendant to review a witness’s prior written or recorded statement after
the witness has testified on direct examination.
joint and several liability Liability that usually applies where two or
more wrongdoers cause an injury or where two or more makers sign a
promissory note. A judgment obtained against parties who are jointly and
severally liable can be enforced against any one of parties.
joint custody Shared responsibility of divorced parents concerning
control and supervision of children.
joint ownership with right of survivorship A method of ownership
where upon death of one joint owner that owner’s interest passes to the
surviving owner, irrespective of the deceased owner’s last will and
testament.
joint tenancy A form of holding title to property where two or more
persons share in the ownership.
joint tenants with right of survivorship A form of property ownership
whereby upon death of one party, that party’s interest in the property
becomes the property of the surviving joint tenant(s).
judgment of acquittal (1) In a nonjury trial, a judge’s order exonerating
a defendant based on a finding that the defendant is not guilty. (2) In a case
heard by a jury finding a defendant guilty, a judge’s order exonerating a
defendant on the ground that the evidence was not legally sufficient to
support the jury’s finding of guilt.
judicial accountability The idea that judges should answer to the public
for their decisions, primarily through the ballot box.
judicial activism Defined variously, but the underlying philosophy is
that judges should exercise power vigorously.
judicial conference A meeting of judges to deliberate on disposition of a
case.
judicial decision A decision by a court of law.
judicial disciplinary commissions Agencies established by state
legislatures to investigate complaints of judicial misconduct.
judicial independence The idea that judges should be free from public
pressure in making decisions based on the rule of law.
judicial notice The act of a court recognizing, without proof, the
existence of certain facts that are commonly known. Such facts are often
brought to the court’s attention through the use of a calendar or almanac.
judicial review Generally, the review of any issue by a court of law. In
American constitutional law, judicial review refers to the authority of a
court to invalidate acts of government on constitutional grounds.
judicial review of agency actions Process by which courts of law
review actions or decisions of administrative and regulatory agencies.
judicial self-restraint The idea that judges should exercise the power of
judicial review cautiously and should defer to the decisions of the elective
branches of government.
jurisdiction The geographical area within which, the subject matter with
respect to which, and the persons over whom a court can properly exercise
its power.
jury instructions A judge’s explanation of the law applicable to a case
being heard by a jury.
jury trial A judicial proceeding to determine a defendant’s guilt or
innocence conducted before a body of persons sworn to render a verdict
based on the law and the evidence presented.
just compensation The constitutional requirement that a party whose
property is taken by government under the power of eminent domain be
justly compensated for the loss, normally at fair market value.
justifiable homicide Killing another in self-defense or defense of others
when there is serious danger of death or great bodily harm to self or others,
or when authorized by law.
justifiable use of force The necessary and reasonable use of force by a
person in self-defense, defense of another, or defense of property.
kidnapping The forcible abduction and carrying away of a person
against that person’s will.
knock and announce The provision under federal and most state laws
that requires a law enforcement officer to first knock and announce his or
her presence and purpose before entering a person’s home to serve a
search or arrest warrant.
land tenure System developed under the feudal system where an
occupier or tenant held lands subordinate to a superior, usually a lord.
land use planning Developing criteria for present and future uses of
lands. Land use zoning is a principal tool in land use planning.
land use zoning See zoning.
landlord-tenant law The branch of the civil law that deals with
relationships between owners and tenants.
larceny At common law, the unlawful taking of property with the intent
of permanently depriving the owner of same.
law enforcement agencies Government agencies empowered to arrest
and detain persons who violate the criminal law.
lawmaking See lawmaking function.
lawmaking function One of the principal functions of an appellate
court, often referred to as the law development function, in which the
appellate court makes law by interpreting or reinterpreting a constitutional
or statutory provision.
leading question A question that suggests an answer. Leading questions
are permitted at a civil or criminal trial on cross-examination of witnesses
and in other limited instances.
leasehold The legal interest in property that a tenant acquires by lease
(usually written) from the owner.
legal codes Compilations of statutory laws usually indexed according to
subject matter.
legal guardianship Court proceeding resulting in appointment of a
guardian to exercise control over a ward, the ward’s property, or both.
legal separation (1) An agreement whereby married parties agree to live
separate and apart from one another. (2) A court order providing for
spouses to live separate and apart from one another, often making
provisions for support of a spouse and children, but not dissolving the
parties’ marriage.
legatees Those who receive personal property under a decedent’s last
will and testament.
legislative veto A statutory provision under which a legislative body is
permitted to overrule a decision of an executive agency.
legislators Members of a legislature.
legislature An elected lawmaking body such as the Congress of the
United States or a state assembly.
lemon laws Statutes that provide a means for a consumer who buys
goods that are defective (frequently a motor vehicle) to obtain necessary
repairs or replacement of the goods.
lessee A party who leases real or personal property from a lessor
(owner).
lessor A party (sometimes called a landlord) who leases real or personal
property to a lessee (tenant).
levy (1) Imposition of a tax or assessment by a government agency. (2)
Procedure whereby a court official takes possession of property and causes
it to be sold to satisfy a judgment lien.
lex talionis The ancient law of retaliation, commonly referred to as “an
eye for an eye.”
libel The tort of defamation through published material. See defamation.
libertarian view of law The idea that law should protect people from
one another but not protect the individual from his or her own vices or
unfortunate choices.
licensee A party who holds a license.
licenses Permits to act for specified purposes.
lien A claim of a right or interest in or charge against another’s property.
life estates An interest in property (usually real estate) that allows the
life tenant to use and control the property during his or her lifetime.
life support systems Artificial means of sustaining life (usually refers to
extraordinary means of medical treatment such mechanical respirators).
life tenant A holder of a life estate in property.
limited liability A characteristic of certain forms of investment where
the investor’s liability is limited to his or her investment. Example:
Liability of a corporate stockholder is generally limited to his or her
investment.
limited partner A partner in a limited partnership whose liability for
debts of the partnership is generally limited to the partner’s investment.
limited partnership A partnership with at least one general partner and
one or more limited partners organized under statutory law; a form of
partnership that distinguishes between general and limited partners.
limited warranty (1) A warranty that expressly includes certain
limitations of the warrantor’s liability. (2) A written consumer product
warranty that does not conform to the requirements for a full warranty
specified by the Magnuson-Moss Warranty Act.
liquidated damages A fixed amount of damages that parties agree to in
the event of a breach of contract.
living trust A trust created by a grantor during his or her lifetime. Also
known as an inter vivos trust.
living will A document enforceable in court stating a person’s wishes
regarding the use of extraordinary medical treatment in the event that
person is injured and is unable to communicate.
loitering Standing around idly, “hanging around.”
long-arm statute A state law authorizing service of process on a
nonresident defendant as a basis for the court’s jurisdiction. To be
constitutionally applied, the defendant served must have had minimal
contacts within the state where the court is to acquire jurisdiction.
lost property Property that the owner has involuntarily parted with and
about which the owner is without knowledge as to how or where to find it.
lump sum alimony Payment of alimony at one time rather than a
continuing basis. See alimony.
Magna Carta The “Great Charter” signed by King John in 1215
guaranteeing the legal rights of English subjects. Generally considered the
foundation of Anglo-American constitutionalism.
maker One who executes a document; a term commonly applied to a
person who signs a promissory note.
mala in se “Evil in itself.” Refers to crimes such as murder that are
universally condemned.
mala prohibita “Prohibited evil.” Refers to crimes that are wrong
primarily because the law declares them to be wrong.
malfeasance Misconduct that adversely affects the performance of
official duties.
malicious mischief The crime of willful destruction of the personal
property of another.
managed care Medical services generally furnished through a health
maintenance organization (HMO).
mandamus “We command.” A judicial order or writ commanding a
public official or an organization to perform a specified non-discretionary
duty.
mandatory sentencing Sentencing practice in which trial courts are
constrained by law to impose prison terms of certain minimum duration.
manslaughter The crime of unlawful killing of another person without
malice.
marital privilege The privilege of married persons not to be compelled
to testify against one another.
marital property Property acquired by spouses, other than by gift or
inheritance, during their marriage.
marriage A special contractual relationship formed according to law
between a man and a woman that results in the regulation of the social and
economic status of the parties by law.
matrimonial domicile Place where a husband and wife live during their
marriage.
mayhem At common law, the crime of injuring someone so as to render
that person less able to fight.
mediation An informal, non-adversarial process whereby a neutral third
person facilitates resolution of a dispute between parties by exploring
issues and settlement alternatives.
Medicaid Federal program that provides grants to states to furnish
medical care to indigent persons.
Medicare Federal health insurance program primarily for senior citizens.
Megan’s Law Law requiring convicted sex offenders released from
prison to register with local law enforcement authorities.
mens rea Guilty mind, criminal intent.
misdemeanor A minor offense usually punishable by fine or
imprisonment for less than one year.
misfeasance Improper performance of a lawful act.
misrepresentation An untrue statement of fact made to deceive or
mislead.
Missouri Plan Plan for merit-based selection and retention of state
judges; originated in Missouri in 1940.
mistake of fact Unconscious ignorance of a fact or belief in the
existence of something that does not exist.
mistake of law An erroneous opinion of legal principles applied to a set
of facts.
mistrial A trial that is terminated due to misconduct, procedural error, or
a “hung jury” (one that is unable to reach a verdict).
mitigating factors Circumstances or factors that tend to lessen
culpability.
M’Naghten Rule Under this rule, for a defendant to be found not guilty
by reason of insanity, it must be clearly proved that, at the time of
committing the act, the defendant was suffering such a defect of reason,
from disease of the mind, as not to know the nature and quality of the act
he was doing; or, if he did know it, that he did not know what he was
doing was wrong.
Model Penal Code (MPC) Published by the American Law Institute
(ALI), the MPC consists of general provisions concerning criminal
liability, sentences, defenses, and definitions of specific crimes. The MPC
is not law; rather, it is designed to serve as a model code of criminal law
for all states.
modification of custody A court judgment revising previous court-
ordered arrangements for control and supervision of minor children.
monetary policy Area of public policy affecting the supply of money in
the economy.
money laundering The offense of disguising illegal income to make it
appear legitimate.
mortgage Written contract creating a lien against specifically described
real property to secure payment of a note or other undertaking. In some
states, a conditional conveyance of real property to secure a debt.
mortgagee One who takes or holds a mortgage (usually a lender).
mortgagor One who executes a mortgage (usually a borrower) to secure
payment of an obligation.
motion for change of venue A formal request to a court to designate a
different location for conduct of legal proceedings.
motion for continuance A formal request to a court to postpone a
hearing or trial.
motion for rehearing A formal request made to a court of law to
convene another hearing in a case in which the court has already ruled.
motion to dismiss (1) A formal request to a court to dismiss a plaintiff’s
complaint, often on the ground the complaint fails to state a legal basis for
relief sought by the plaintiff. (2) A formal request to a trial court to dismiss
the criminal charges against the defendant.
motion to suppress A request asking a court to rule that a confession or
admission, pretrial identification, or fruits of a search or seizure were
unlawfully obtained and cannot be used against a defendant in court.
motions Formal applications to courts to obtain an order or grant some
relief to the movant.
motive A person’s conscious reason for acting.
murder The unlawful killing of a person by another with malice
aforethought or premeditation, or through depraved indifference to human
life.
mutual assent An understanding between parties manifested by an offer
and an acceptance.
mutual benefit bailments A type of bailment where the owner of the
property and the person receiving the property each receive a benefit.
Example: a lease of a motor vehicle.
mutual mistake Where each of the parties to a contract was mistaken as
to a fact material to the formation of the contract.
Napoleonic Code The codification of the civil and criminal laws of
France promulgated under Napoleon Bonaparte in 1804.
natural law Principles of human conduct believed to be ordained by
God or nature, existing prior to and superseding human law.
natural rights Rights believed to be inherent in human beings, the
existence of which is not dependent on their recognition by government. In
classical liberalism, natural rights are “life, liberty and property.” As
recognized by the Declaration of Independence, they are “life, liberty and
the pursuit of happiness.”
necessity A condition that compels or requires a certain course of action.
negative defenses Any criminal defenses not required to be specifically
pled.
negligence The failure to exercise ordinary care or caution.
negligence per se An act or omission in violation of a duty imposed by
statute or ordinance for the protection of persons or property.
negligent acts or omissions Acts or omissions committed by a person
who fails to act as a reasonably prudent individual would act under the
circumstances.
negligent hiring A tort consisting of employing a person whom the
employer knew or should have known would pose a threat to the security
of others.
negligent infliction of emotional distress A tort in some states where a
person in a zone of physical risk suffers demonstrable physical
consequences from fright or shock as a result of outrageous acts against
another person.
negotiable Transferable by endorsement and delivery.
negotiable instrument Commercial paper signed by the maker or
drawer containing an unconditional promise or order to pay a sum certain
in money, made payable on demand or at a fixed time to the order of
someone or to the bearer.
negotiation (1) As respects commercial paper, a transfer in a manner
that the transferee becomes a holder in due course. (2) Method of settling a
dispute between parties without a formal trial.
no contest plea A plea to a criminal charge that, although it is not an
admission of guilt, generally has the same effect as a plea of guilty.
no-fault automobile insurance laws Statutes in some states that require
automobile owners to carry insurance that reimburses the insured
irrespective of who is at fault in a vehicular accident. Statutes sometimes
allow an action against a party at fault in instances of major injuries or
death.
no-fault dissolution of marriage A court judgment dissolving a
marriage without the necessity of one spouse’s proving the other spouse to
be at fault in the marriage.
nominal damages A token amount awarded to a plaintiff who proves the
defendant liable but fails to prove actual damages.
non-custodial parent A parent that does not have legal custody of one
or more of that parent’s children.
non-delegable duties Duties that cannot legally be transferred to others.
nonfeasance Failure to perform a duty.
non-negotiable Refers to contracts that do not comply with the
requirements for negotiability under the Uniform Commercial Code. One
who acquires a non-negotiable instrument or contract takes it subject to all
defenses between the original parties.
non-performance Failure to perform as required by a contract.
notice of appeal Document filed notifying an appellate court of an
appeal from a judgment of a lower court.
notice of proposed rulemaking Notification to interested parties of an
agency’s intention to promulgate a rule.
nuisance An unlawful or unreasonable use of a person’s property that
results in an injury to another or to the public.
obscenity Explicit sexual material that is patently offensive, appeals to a
prurient or unnatural interest in sex, and lacks serious scientific, artistic, or
literary content.
obstruction of justice The crime of impeding or preventing law
enforcement or the administration of justice.
offer Statement or conduct by a person constituting a proposal to enter a
contract.
offeree One to whom an offer has been made.
offeror One who makes an offer.
open meetings Meetings open to the general public.
open public trial A trial that is held in public and is open to spectators.
opening statement A prosecutor’s or defense lawyer’s initial statement
to the judge or jury in a trial.
opinion A written statement accompanying a judicial decision, authored
by one or more judges, supporting or dissenting from that decision.
opinion of the court The opinion expressing the views of the majority
of judges participating in a judicial decision.
oral argument Verbal presentation made to an appellate court in an
attempt to persuade the court to affirm, reverse, or modify a lower court
decision.
ordinance An enactment of a local governing body such as a city
council or commission.
organized crime Syndicates involved in racketeering and other criminal
activities.
original jurisdiction The authority of a court of law to hear a case in the
first instance.
original writs Writs issued by a court in an original, as opposed to an
appellate, proceeding. Original writs include mandamus, prohibition, quo
warranto, and habeas corpus.
out-of-court settlements Compromises arrived at between parties that
result in dismissal of cases before formal trials occur.
oversight Refers to the responsibility of a legislative body to monitor the
activities of government agencies it created.
paralegal A legal assistant trained to perform certain legal functions
under supervision of a lawyer.
parents’ right of privacy Right of parents to deny visitation rights to
grandparents and others.
parol evidence rule A rule of law providing that when a contract is
complete, oral agreements made prior to or at the time of execution of the
contract cannot be admitted in evidence to vary or contradict the terms of
the contract absent fraud, mistake, or illegality.
parole Conditional release from jail or prison of a person who has
served part of his or her sentence.
parole board An administrative board that determines if a prisoner
should be released on parole and, if so, under what conditions.
parole revocation hearing An administrative hearing held for the
purpose of determining whether an offender’s parole should be revoked.
parties Persons involved in court actions; persons who enter contracts.
partition suit A legal proceeding to apportion undivided interests of
owners of real property. Example: a court can divide land owned as
tenants in common, or if division is not practicable, it can order the land
sold and the proceeds divided according to the parties’ interests.
partnership An association of two or more persons who carry on a
business for profit as co-owners and share in the profits and losses.
past consideration Something done or given in the past that cannot
serve as a consideration in the present for a contract.
patents, copyrights, and trademarks Species of intangible property
rights, often referred to today as intellectual property.
paternity Biological fatherhood.
payee Party to whom a negotiable instrument is payable.
penitentiary A prison.
per curiam opinion An opinion rendered “by the court” as distinct from
one attributed to one or more judges.
peremptory challenge An objection to the selection of a prospective
juror in which the attorney making the challenge is not required to state the
reason for the objection.
performance Fulfillment of a promise under a contract.
perjury The crime of making a material false statement under oath.
perjury by contradictory statements Commission of the offense of
perjury by a witness who makes conflicting statements under oath.
permanent alimony Requirement to pay alimony on a permanent basis.
perpetual existence Indefinite lifetime, a characteristic of a corporation.
personal property All species of property other than land and things
attached to the land.
personal representative One who administers an estate, sometimes
known as an executor or executrix of a testate estate or an administrator or
administratrix of an intestate estate.
personal service Service of legal process by delivery to the named
person.
petitioner A person who brings a petition before a court of law.
pierce the corporate veil To disregard the identity of a corporation as
an entity separate from its shareholders and hold the stockholders liable.
places of public accommodation Businesses that open their doors to the
general public.
plain view Readily visible to the naked eye.
plaintiff The party initiating legal action; the complaining party.
plea bargaining Negotiations leading to an agreement between a
defendant and a prosecutor whereby the defendant agrees to plead guilty in
exchange for some concession (such as a reduction in the number of
charges brought).
plea of guilty A formal answer to a criminal charge in which the accused
acknowledges guilt and waives the right to trial.
plea of not guilty A formal answer to a criminal charge in which the
accused denies guilt and thus exercises the right to a trial.
police power The power of government to legislate to protect public
health, safety, welfare, and morality.
polygraph evidence Results of lie detector tests (generally inadmissible
into evidence).
positive law The written law enforced by government.
post-conviction relief Term applied to various mechanisms a defendant
may use to challenge a conviction after other routes of appeal have been
exhausted.
post-nuptial agreements Contracts entered into by a husband and wife
settling their property rights upon death of one party or in the event of
divorce.
power of contempt The authority of a court of law to punish someone
who insults the court or flouts its authority.
power to investigate Refers to the power of a legislative body to
conduct hearings and subpoena witnesses in order to investigate an issue
or area in which it has legislative authority.
precedent A judicial decision cited as authority controlling or
influencing the outcome of a similar case.
preclearance Requirement under the Voting Rights Act that changes in
state voting and election laws must be approved by the Attorney General
before they can take effect.
preconception tort A new tort based on a physician’s failure to advise a
prospective mother of the likelihood of conceiving a defective child.
pre-embryo A fertilized ovum or zygote.
pre-existing duty A duty, the performance of which does not constitute
a valid consideration for a contract.
preferred stock Shares of corporate stock that receive preference in
payment of fixed dividends and priority in receiving assets upon
dissolution of the corporation.
preliminary hearing A hearing held to determine whether there is
sufficient evidence to hold an accused for trial.
preliminary injunction An injunction issued pending a trial on the
merits of the case.
prenuptial agreements Contracts entered into by a man and woman
before their marriage settling their property rights upon death of one party
or in the event of divorce.
preponderance of evidence Evidence that has greater weight than
countervailing evidence.
prescription Refers to acquiring an easement by long, continued,
uninterrupted use, that is, by prescription.
presentence investigation An investigation held before sentencing a
convicted criminal to aid the court in determining the appropriate
punishment.
presumption of constitutionality The doctrine of constitutional law
holding that laws are presumed to be constitutional, with the burden of
proof resting on the plaintiff to demonstrate otherwise.
pretrial conference A meeting of attorneys and the trial judge in
advance of a jury trial to define issues, stipulate as to evidentiary exhibits,
estimate the time required for trial, and discuss other details concerning the
trial.
pretrial detention The holding of a defendant in custody prior to trial.
pretrial discovery The process by which counsel for parties gain access
to the evidence possessed by the opposing party prior to trial.
pretrial motions Request for certain rulings or orders before the
commencement of a trial.
pretrial release The release of a defendant pending trial.
price fixing Sellers’ unlawfully entering into agreements as to the price
of products or services.
primary physical residence In family law, the place where a child
remains with a parent who has custodial responsibility for the child.
principal (1) A perpetrator of or aider and abettor in the commission of
a crime (as distinguished from an accessory). (2) The amount of a debt
excluding interest.
prior restraint An official act preventing publication of a particular
work.
prison disciplinary hearings Informal administrative hearing required
before removal of “good time” credits earned by a prisoner.
prisoners’ rights Refers to the set of rights that prisoners retain or
attempt to assert through litigation.
private placement adoption An adoption arranged by private
intermediaries, usually by a doctor and lawyer.
privilege A right extended to persons by virtue of law, for example, the
right accorded a spouse in not being required to testify against the other
spouse.
privileged communications Confidential communications that persons
are not required to disclose in court proceedings.
probable cause A reasonable ground for belief in certain alleged facts.
probate court A court that exercises jurisdiction over the probate of
wills and administration of estates of decedents.
probation Conditional release of a convicted criminal in lieu of
incarceration.
procedural criminal law The branch of the criminal law that deals with
the processes by which crimes are investigated, prosecuted, and punished.
procedural due process Set of procedures designed to ensure fairness in
a judicial or administrative proceeding.
procedural legitimacy Popular acceptance of an institution based on the
perception that it operates by valid procedures.
products liability The legal responsibility of a manufacturer, seller, or
distributor of products that cause injuries to consumers.
professional responsibility Requirement that members of the legal
profession adhere to a code of professional ethics.
prohibition A provision of law forbidding a particular form of conduct.
prohibition, writ of A judicial order issued by a superior court directing
a lower tribunal to cease acting in excess of its lawful jurisdiction.
promisee Party to whom a contractual promise has been made.
promisor Party who makes a contractual promise.
promissory estoppel A doctrine of contract law under which a promise,
even though made without consideration, may be legally enforceable if the
promise induces action on the part of the promisee.
promissory note A written promise to pay a certain sum to or to the
order of another.
pronouncement of sentence Formal announcement of a criminal
punishment by a trial judge.
proof beyond a reasonable doubt The standard of proof in a criminal
trial or a juvenile delinquency hearing.
proper forum The correct court or other institution in which to press a
particular claim.
property rights Refers to the bundle of rights that exist relative to
private ownership and control of property.
property settlement agreement A contract entered into by married
persons providing for disposition of their assets and liabilities. In most
instances the agreement becomes effective upon approval of the court,
upon dissolution of the parties’ marriage.
proportionality The degree to which a particular punishment matches
the seriousness of crime or matches the penalty other offenders have
received for the same crime.
proprietary or operational activities Non-governmental activities of
municipal government that may subject a municipality to tort liability.
prosecutor A public official empowered to initiate criminal charges and
conduct prosecutions.
prosecutorial discretion The leeway afforded prosecutors in deciding
whether or not to bring charges and to engage in plea bargaining.
prostitution The act of selling sexual favors.
protective order A court order protecting a person from whom
discovery is sought prior to trial from annoyance, oppression, or undue
expense in complying with demands of a party seeking discovery.
proximate cause The cause that is nearest a given effect in a causal
relationship.
public defender An attorney responsible for defending indigent persons
charged with crimes.
public figures Persons who are in the public eye.
public officials Persons who hold public office by virtue of election or
appointment.
public policy Guidelines (usually unwritten) by which courts make
determinations whether certain acts are beneficial or harmful to society.
public safety exception Exception to the requirement that police officers
promptly inform suspects taken into custody of their rights to remain silent
and have an attorney present during questioning. Under the public safety
exception, police may ask suspects questions motivated by a desire to
protect public safety without jeopardizing the admissibility of suspects’
answers to those questions or subsequent statements.
publicly traded corporations Corporations whose securities are traded
in the public markets, for example, on a national stock exchange.
puffing Exaggerated, but not fraudulent, claims by a seller or sales
person.
punitive damages A sum of money awarded to the plaintiff in a civil
case as a means of punishing the defendant for wrongful conduct.
purchase money mortgage A document executed by a buyer creating a
lien in favor of a seller of real property for the unpaid balance of the
purchase price.
putative father A man who is regarded to be the father of a child
although paternity has not been established.
quasi-judicial bodies Public boards of administrative officers who make
factual determinations as a basis for their rulings.
qui tam action Civil suit brought by a private party on behalf of the
government against a party that has allegedly defrauded the government.
quitclaim deed A legal conveyance by a grantor to a grantee of an
interest, if any, the grantor has in land described in the deed.
racially based peremptory challenges Peremptory challenges to
prospective jurors that are based solely on racial animus or racial
stereotypes.
rape Common law crime involving sexual intercourse by a male with a
female, other than his wife, by force and against the will of the female. See
also sexual battery.
rape shield laws Laws that protect the identity of rape victims or
prevent disclosure of victims’ sexual history.
rape trauma syndrome A recurring pattern of physical and emotional
symptoms experienced by rape victims.
rational basis test The most basic test of the validity of a statute, in
which the court determines whether the challenged law is rationally related
to a legitimate government objective.
real evidence Refers to maps, blood samples, x-rays, photographs,
stolen goods, fingerprints, knives, guns, and other tangible items
introduced into evidence.
real property Land and buildings permanently attached thereto.
reapportionment The redrawing of legislative district lines so as to
remedy malapportionment.
reasonable accommodation Requirement under the Americans with
Disabilities Act that employers take reasonable steps to accommodate
employees with disabilities.
reasonable expectation of privacy A person’s reasonable expectation
that his or her activities in a certain place are private; society’s
expectations with regard to whether activities in certain places are private.
reasonable force The maximum degree of force that is necessary to
accomplish a lawful purpose.
reasonable person The hypothetical person referred to by courts as the
objective standard for judging a person’s actions.
reasonable suspicion A person’s suspicion based on objective standards
that criminal activity is afoot.
reasonableness standard Objective standard that courts employ in
determining whether a person’s conduct is negligent.
reasonably foreseeable An act or event that a reasonable person would
anticipate to occur as a result of a prior act or event.
rebuttable presumption A legal presumption that may be refuted by
evidence.
rebuttal Refutation by an attorney of the opposing attorney’s argument.
recidivism Repetitive criminal activity.
reciprocal enforcement of support obligations Statutory method
whereby the states cooperate in enforcing legal obligations of support of
dependents. Involves proceedings in an initiating state and responding
state.
regulation A legally binding rule or order prescribed by a controlling
authority. The term is generally used with respect to the rules promulgated
by administrative and regulatory agencies.
regulatory agencies Agencies empowered by statutes to promulgate and
enforce regulations within particular substantive areas.
regulatory taking Governmental regulations that result in a substantial
diminishment in the value of an owner’s property.
rehabilitation Restoring someone or something to its former status; a
justification for punishment emphasizing reform rather than retribution.
rehabilitative alimony A court-ordered sum paid by one spouse to the
other to enable the recipient to become financially self-sufficient.
Rehabilitative alimony is usually paid for a definite number of months or
years.
relevant evidence Evidence tending to prove or disprove an alleged fact.
remainderman Person designated to receive an estate in real property
upon expiration of the prior estate. Example: If H conveys a life estate to
W with the remainder to C, C is a remainderman who succeeds to title
upon W’s death.
remand To send back, as from a higher court to a lower court for the
latter to take specified action in a case or to follow proceedings designated
by the higher court.
reply brief A brief submitted in response to an appellee’s answer brief.
reporters Books that are a part of the National Reporter Series that
contain judicial decisions and accompanying opinions, for example, the
Supreme Court Reporter Series includes Supreme Court decisions; other
regional reporters contain decisions of federal and state decisions.
representative government Form of government in which officials
responsible for making policy are elected by the people in periodic free
elections.
reproductive technology Modern medical devices that assist in
achieving pregnancy.
reputation evidence Evidence admitted under a rule of evidence that
provides that when a person’s character is in issue, proof of good character
may be made by showing a person’s reputation in the community.
res ipsa loquitur “The thing speaks for itself.” In tort law, where an
injury occurs to a plaintiff who is without fault, by an instrumentality or
event in control of the defendant where the injury would not occur in
absence of the defendant’s negligence. The event raises an inference of a
defendant’s negligence. For example, where a plaintiff is injured when
struck by rocks falling from a vehicle.
rescission Cancellation. An equitable remedy that annuls a contract.
residence requirements Legal requirements that parties have resided in
a jurisdiction for a minimum period of time before voting, running for
office, marrying, or receiving certain benefits to which residents are
entitled.
resisting arrest The crime of obstructing or opposing a police officer
making an arrest.
restitution The act of compensating someone for losses suffered.
restraining orders Court orders prohibiting named persons from taking
specified actions.
restrictive covenants Agreements among property holders restricting
the use of property or prohibiting the rental or sale of it to certain parties.
retaliatory eviction Action by a lessor to terminate a tenant’s occupancy
because the tenant has angered the lessor, usually by reporting a housing
violation to public authorities.
retribution Something demanded in payment for a debt; in criminal law,
the demand that a criminal pay his or her debt to society.
reverse To set aside a decision on appeal.
revocable trust A trust that the grantor reserves the right to revoke.
RICO Acronym for Title IX (Racketeer Influenced and Corrupt
Organizations) of the Organized Crime Control Act of 1970.
right of confrontation The right to face one’s accusers in a criminal
case.
right of cross-examination Right of an attorney to ask questions of a
witness who has testified on behalf of the opposing party.
right of privacy Right to be let alone, that is, free from governmental
interference.
right of redemption A mortgagor’s right to pay all sums due the
mortgagee before a foreclosure sale and thus redeem the mortgagor’s right
to the property that has been foreclosed.
right of visitation The court-ordered right of a non-custodial parent to
visit with his or her child.
right to a speedy trial Right guaranteed by the Sixth Amendment to
U.S. Constitution; however, statutes and court rules frequently specify the
time periods within which a trial must be held.
right to counsel Right to be represented by an attorney in a court,
including the right of an indigent criminal defendant to have court-
appointed counsel when subject to incarceration if convicted.
right to die The right of persons who are terminally ill to refuse further
medical treatment and be allowed to die.
right to keep and bear arms Right to possess certain weapons,
protected against federal infringement by the Second Amendment to the
U.S. Constitution.
right to vote The right of an individual to cast a vote in an election.
right to work laws State statutes that provide a person cannot be
required to join a union in order to obtain or hold a job.
rights of prisoners Rights to adequate food, clothing, shelter, medical
care, and sanitation as well as access to the courts; limited rights of
expression and to exercise religious practices that do not disrupt prison
routine.
rights of the accused All of the rights belonging to persons accused of
crimes, such as the right to counsel, the right to a fair trial, the right to due
process, and so forth.
riot A public disturbance involving acts of violence, usually by three or
more persons.
robbery The crime of taking money or property from a person against
that person’s will by means of force.
Roman Law Laws that prevailed among the Romans first codified in the
Twelve Tables; basis of the modern civil law in most European countries.
rule of four U.S. Supreme Court rule whereby the Court grants certiorari
only on the agreement of at least four justices.
rule of law The idea that law, not the discretion of officials, should
govern public affairs.
rulemaking Formal process by which regulatory agencies make rules
that carry the force of law.
rulemaking authority Authority of federal and state regulatory agencies
to promulgate rules of general applicability over matters within the
agency’s jurisdiction.
rules of evidence Rules that govern the introduction of evidence in
courts.
rules of practice Rules regulating the practice of law before courts and
administrative agencies.
rules of procedure Rules promulgated by courts of law under
constitutional or statutory authority governing procedures for trials and
other judicial proceedings.
same-sex marriages Marriages between persons of the same sex.
search Intrusion by law officers or other government officials that
affects an individual’s legally protected zone of privacy.
search incident to a lawful arrest Search of a person placed under
arrest and the area within the arrestee’s grasp and control.
second-degree murder Typically refers to a killing perpetrated by any
act imminently dangerous to another and evincing a depraved mind with
no regard for human life, although without any premeditated design to
effect the death of any particular individual.
Secret Service A federal law enforcement function located within the
Treasury Department that protects the President and the President’s family
and enforces federal laws against forgery of government checks and
bonds, and investigates credit card and computer fraud.
security An investment in a stock or bond issued by a corporation.
security agreement A written contract between a debtor and a creditor
granting the creditor a security interest in collateral.
security deposit A sum deposited by a tenant either with a lessor or in
escrow to guarantee performance of the tenant’s obligations under a lease.
security interest An interest in collateral that a creditor acquires to
ensure repayment of a debt.
seizure Action of police in taking possession or control of property or
persons.
selective prosecution Singling out defendants for prosecution on the
basis of race, religion, or other impermissible classifications.
self-defense The protection of one’s person against an attack.
sentencing guidelines Legislative guidelines mandating that sentencing
conform to guidelines absent a compelling reason for departing from them.
sentencing hearing A hearing held by a trial court prior to the
pronouncement of sentence.
separate maintenance An allowance that a court orders paid to a wife
who is living apart from her husband in order to provide for the wife and
the parties’ children.
separation of church and state The First Amendment states, “Congress
shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof.” The Supreme Court has sometimes used a “wall
of separation” metaphor, attributed to Thomas Jefferson, to describe the
relationship between church and state.
separation of powers Constitutional assignment of legislative,
executive, and judicial powers to different branches of government.
sequestration The seclusion of a jury from outside influences under
supervision of a law officer acting under direction of a court.
sequestration of the jury Isolation of jurors (usually in a high-profile
criminal case) from contact with the general public until a trial jury has
reached a verdict.
session laws Laws enacted at a given session of a legislature.
sex-neutral basis Without regard to the sex of a party.
sexual harassment Offensive interaction of a sexual nature in the
workplace.
shared custody The joint responsibility of divorced parents for the
supervision and control of their children.
shared parental responsibility A court-ordered relationship in which
both parents retain their parental rights and responsibilities with respect to
their child and are to confer with each other on major decisions affecting
the child’s health, education, and welfare.
sheriff The chief law enforcement officer of the county.
slander The tort of defaming someone’s character through verbal
statements.
sobriety checkpoints Roadblocks set up for the purpose of
administering field sobriety tests to motorists who appear to be
intoxicated.
social host One who furnishes alcoholic beverages to guests.
social security A federal government program instituted by Congress in
1935 where employers withhold a portion of their employees’ wages,
match these amounts, and transfer these sums to the government. Self-
employed individuals also pay into the system. From these funds, the
government pays benefits to disabled persons, retirees, surviving spouses,
and dependents.
social welfare legislation Laws enacted by federal and state
governments to assist socially and economically disadvantaged people.
sodomy Oral or anal sex between persons, or sex between a person and
an animal, the latter commonly referred to as bestiality. In 2003, the
Supreme Court declared unconstitutional a Texas Law prohibiting
sodomy.
sole proprietorship A business owned and operated by one individual.
solicitation The crime of offering someone money or other thing of
value in order to persuade that person to commit a crime; an active effort
on the part of an attorney or other professional to obtain business.
sovereign immunity A common law doctrine under which the sovereign
may be sued only with its consent.
sovereignty The authority of an independent nation or state to govern
within its territorial limits.
special damages Compensation awarded by a court to reimburse a
plaintiff for out-of-pocket losses sustained as a result of a defendant’s
actions. In a typical tort action, special damages included compensation for
medical expenses and loss of wages.
special equity Court-ordered interest in an asset awarded to a spouse
based on his or her superior contribution to a particular marital asset.
special exceptions Approvals by zoning boards that permit uses within a
particular district conditioned upon compliance with special requirements.
special prosecutor A prosecutor appointed specifically to investigate a
particular episode and, if criminal activity is found, to prosecute those
involved.
special verdict A jury verdict with the jury answering specific questions
as to its findings on issues posed by the court.
specific intent The mental purpose to accomplish a certain prohibited
act.
specific objection Counsel’s objection to a question posed to a witness
by opposing counsel where a specific reason is given for the objection, for
example, that the question calls for hearsay evidence.
specific performance A court-imposed requirement that a party perform
obligations incurred under a contract.
spoils system A political term based on the old adage that “to the victor
go the spoils.” In practice, the award of contracts and jobs to supporters of
a winning candidate.
spontaneous or excited utterances Exceptions to the hearsay rule of
evidence. The former is a spontaneous statement describing or explaining
an event made while the declarant is perceiving the event or immediately
thereafter. The latter is a statement made relating to a startling event made
while the declarant was under stress caused by the event.
stalking Following or placing a person under surveillance and
threatening that person with bodily harm, sexual assault, confinement, or
restraint or placing that person in reasonable fear of bodily harm, sexual
assault, confinement, or restraint.
standing The right to initiate a legal action or challenge based on the
fact that one has suffered or is likely to suffer a real and substantial injury.
stare decisis “To stand by decided matters.” The principle that past
decisions should stand as precedents for future decisions. This principle,
which stands for the proposition that precedents are binding on later
decisions, is said to be followed less rigorously in constitutional law than
in other branches of the law.
state-sponsored discrimination Discrimination that is endorsed,
permitted, or backed by government.
state supreme court The highest state court; however, in New York the
supreme court refers to a court with trial and appellate divisions and the
highest state court is the Court of Appeals.
state’s attorney A state prosecutor.
statute A generally applicable law enacted by a legislature.
statute of frauds A statutory law patterned after an English statute that
requires certain contracts to be in writing.
statute of limitations (1) A law proscribing prosecutions for specific
crimes after specified periods of time. (2) A statutory law setting time
limits for filing court actions involving contract and tort claims.
statutory construction The official interpretation of a statute rendered
by a court of law.
statutory preclusion of judicial review Because the jurisdiction of the
lower federal courts is dependent on federal legislation, legislative act
enacted by Congress to preclude judicial review altogether or under certain
circumstances.
stepparent adoption Adoption of a child by the spouse of the child’s
natural parent, usually with consent of the child’s natural parents.
stop-and-frisk An encounter between a police officer and a suspect
during which the latter is temporarily detained and subjected to a “pat-
down” search for weapons.
strict judicial scrutiny Judicial review of government action or policy
in which the ordinary presumption of constitutionality is reversed.
strict liability Doctrine of law whereby liability is imposed upon a party
irrespective of that party’s fault.
strict liability offenses Offenses that do not require proof of the
defendant’s intent.
strict necessity, doctrine of The doctrine that a court should consider a
constitutional question only when strictly necessary to resolve the case at
bar.
strict neutrality Refers to the doctrine that government must be strictly
neutral on matters of religion.
strict scrutiny The most demanding level of judicial review in cases
involving alleged infringements of civil rights or liberties.
strip search A search of a suspect’s or prisoner’s private parts.
structuring Engaging in multiple smaller transactions to avoid currency
reporting requirements.
subornation of perjury The crime of procuring someone to lie under
oath.
subpoena “Under penalty.” A judicial order requiring a person to appear
in court or before a legislative committee in connection with a designated
proceeding.
subpoena duces tecum A judicial order requiring a person to produce
documents sought by a court or legislative committee.
substantial capacity test The doctrine that a person is not responsible
for criminal conduct if at the time of such conduct, as a result of mental
disease or defect, the person lacks substantial capacity either to appreciate
the wrongfulness of his or her conduct or to conform his or her conduct to
the requirements of the law.
substantial evidence Evidence that reasonable minds accept as
sufficient to support a rational conclusion.
substantial federal question A significant legal question pertaining to
the U.S. Constitution, a federal statute, treaty, regulation, or judicial
interpretation of any of the foregoing.
substantive criminal law That branch of the criminal law that defines
criminal offenses and defenses, and specifies criminal punishments.
substantive due process Doctrine that Due Process Clauses of the Fifth
and Fourteenth Amendments to the United States Constitution require
legislation to be fair and reasonable in content as well as application.
substantive legitimacy The belief that the government or legal system is
enacting rules and policies that are fair, reasonable, and just.
substituted judgment Decisions by a relative or surrogate in respect to
health care matters for an incapacitated individual. Judgment presumably
is exercised on the basis of the decision-maker’s view as to the decision
the incapacitated individual would ordinarily make.
substituted service Any form of service of process other than by
personal service, such as service by mail or by publication in a newspaper.
summary judgment A decision rendered by a trial court without
extended argument where there is no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law.
summary justice Trial held by a court of limited jurisdiction without
benefit of a jury.
summons A court order requiring a person to appear in court to answer a
criminal charge.
sunshine laws Federal and state laws requiring certain government
meetings to be conducted in public.
suretyship A written contract whereby one party agrees to become liable
for the debt or default of another party.
surrogate One who acts in the place of another.
surrogate motherhood A woman who relinquishes her parental rights
as the biological mother of a child she has delivered as a result of having
been artificially inseminated.
survival statutes Statutes that provide that tort actions survive the
plaintiff and defendant.
suspect classification doctrine The doctrine that laws classifying people
according to race, ethnicity, and religion are inherently suspect and
subjected to strict judicial scrutiny.
suspended sentence Trial court’s decision to place a defendant on
probation or under community control instead of imposing an announced
sentence on the condition that the original sentence may be imposed if the
defendant violates the conditions of the suspended sentence.
tangible personal property Property that has physical form and
substance and value in itself.
target crime A crime that is the object of a conspiracy. Example: In a
conspiracy to traffic in illegal drugs, the offense of trafficking in illegal
drugs is the target crime.
Tax Court A federal court established by Congress in 1924 to resolve
disputes between taxpayers and the Internal Revenue Service.
tax fraud False or deceptive conduct performed with the intent of
violating revenue laws, especially the Internal Revenue Code.
tenancy by the entirety A form of ownership of property by a husband
and wife. Upon the death of either party, the survivor becomes the owner
of the property.
tenants in common A form of ownership of property whereby each
tenant in common owns an undivided interest in the property.
termination of parental rights A court judgment declaring an end to a
natural parent’s rights over his or her child.
testamentary capacity The legal capability to execute a last will and
testament.
testamentary trust A trust created under a last will and testament.
testator A person (male) who executes a last will and testament.
testatrix A person (female) who executes a last will and testament.
testimonial evidence Evidence received by a court from witnesses who
have testified under oath.
testimony Evidence given by a witness who has sworn to tell the truth.
the living Constitution The idea that the meaning of the Constitution
changes to adapt to changing social and economic conditions.
third-party creditor beneficiary A person designated to receive
payment of an obligation as a result of a contract between other persons.
Example: A party to whom money is owed is named as a beneficiary of a
life insurance policy.
third-party donee beneficiary A person designated to receive
something of value as a result of a contract between other persons.
Example: A person gratuitously named as a beneficiary under a life
insurance policy is a typical donee beneficiary.
third-party practice Where a defendant in a civil suit makes a third
party an additional defendant in the litigation. The basis to join a third
party is the defendant’s allegation that such party is or may be liable to the
defendant for all or part of the plaintiff’s claim against the defendant.
three-strikes-and-you’re-out law Popular term for a statute that
provides for mandatory life imprisonment for a convicted felon who is
convicted of a third violent or serious felony after having been previously
convicted of two or more serious felonies.
time, place, and manner regulations Government limitations on the
time, place, and manner of expressive activities.
tort A wrong or injury other than a breach of contract for which the
remedy is a civil suit for damages.
tort claims Claims asserted for alleged torts.
tortfeasor One who commits a tort.
totality of circumstances The entire collection of relevant facts in a
particular case.
toxic torts Acts involving human or property exposure through
absorption, contact, ingestion, inhalation, implantation, or injection of
toxins.
traditional surrogacy Impregnation of a woman with the sperm of a
married man with an understanding that the child to be born is to be legally
the child of the married man and his wife.
transactional immunity A grant of immunity applying to offenses that a
witness’s testimony relates to.
transcript A written record of a trial or hearing.
transferability of ownership Ability to readily transfer ownership
interests in a corporation by simply endorsing stock certificates.
treason The crime of attempting by overt acts to overthrow the
government or of betraying the government to a foreign power.
treaty A legally binding agreement between two or more countries. In
the United States, treaties are negotiated by the President but must be
ratified by the Senate.
trespass to land An unlawful entry onto another person’s real property.
trespasser One who unlawfully interferes with another person’s
property.
trial A judicial proceeding held for the purpose of making factual and
legal determinations.
trial by jury A trial in which the verdict is determined not by the court
but by a jury of the defendant’s peers.
trial courts Courts whose primary function is the conduct of civil and/or
criminal trials.
trial de novo “A new trial.” Refers also to trial court review of
convictions for minor offenses by courts of limited jurisdiction by
conducting a new trial instead of merely reviewing the record of the initial
trial.
trust A legal relationship created when a party known as the grantor or
settlor transfers legal title to assets to a second party known as the trustee
for the benefit of a third party known as a beneficiary.
trustee One who holds legal title to assets transferred by a grantor or
settlor to be held and administered for the benefit of a third-party
beneficiary.
ultra vires acts Refers to acts committed by a corporation beyond the
scope of its legal authority.
unconscionable conduct Conduct that is unfair and oppressive but not
necessarily fraudulent.
unconscionable consumer contracts Contracts that result in oppression
against consumers who have no real choice as to the terms imposed.
unemployment compensation A federal program administered by state
agencies and funded through taxes on employers that provides temporary
payments to unemployed workers.
unified bar A statewide bar association that regulates the legal
profession, usually under the oversight of the state’s highest court, and that
requires lawyers to be dues-paying members of the association.
unified credit A credit against federal estate taxes; in effect an
exemption from the tax. The credit was $675,000 in 2001, increasing to
$3,500,000 in 2009.
Uniform Code of Military Justice (UCMJ) A federal statute enacted
by Congress in 1950 that consolidated and modified prior laws regulating
the conduct of military personnel; established a revised code of military
justice to apply uniformly in all the military services; and established a
civilian court of appeals. The Act authorizes the President to promulgate a
Manual for Courts-Martial binding on all persons subject to the UCMJ.
uniform codes A collection of laws designed to be uniformly adopted by
the various states. The Uniform Commercial Code (UCC) is a classic
example of a uniform code of laws.
unilateral contract A contract formed by a promise being made in
exchange for performance of an act.
unilateral mistake Mistake by only one party to a contract concerning a
material aspect of the contract.
unitary system A political system in which all power is vested in one
central government.
United States Attorneys Attorneys appointed by the President with
consent of the U.S. Senate to prosecute federal crimes in a specific
geographical area of the United States.
United States Court of Appeals for the Armed Forces A civilian court
established by Congress consisting of five civilian judges appointed by the
President for fifteen-year terms. Serves as a court of review for specified
cases and may grant petitions for review beyond the normal channels of
military review in courts-martial cases.
United States Courts of Appeals The intermediate appellate courts of
appeals in the federal system that sit in geographical areas of the United
States and in which panels of appellate judges hear appeals in civil and
criminal cases primarily from the U.S. District Courts.
United States District Courts The principal trial courts in the federal
system that sit in ninety-four districts where usually one judge hears
proceedings and trials in civil and criminal cases.
United States Sentencing Commission A federal body that proposes
guideline sentences for defendants convicted of federal crimes.
United States Supreme Court The highest court in the United States,
consisting of nine justices and having jurisdiction to review, by appeal or
writ of certiorari, the decisions of lower federal courts and many decisions
of the highest courts of each state.
unity concept of marriage Common law doctrine whereby courts
treated a husband and wife as one person for legal purposes. Courts have
now generally discarded the unity concept.
unlawful assembly A meeting of a group of individuals who intend to
commit an unlawful act or to commit a lawful act in an unlawful manner.
unreasonable searches and seizures Searches that violate the Fourth
Amendment to the Constitution.
U.S. Code Official code of the laws of the United States.
use immunity A grant of immunity that forbids prosecutors from using
immunized testimony as evidence in criminal prosecutions.
usurious rate of interest A rate of interest charged to a borrower that
exceeds the maximum rate allowed by law.
uttering a forged instrument The crime of passing a false or worthless
instrument, such as a check, with the intent to defraud or injure the
recipient.
vandalism The willful destruction of the property of another person.
variances Deviations granted by a Board of Adjustment where
enforcement of zoning regulations would impose an undue hardship on the
property owner.
vehicular homicide Homicide resulting from the unlawful and negligent
operation of a motor vehicle.
venire The group of citizens from whom a jury is chosen in a given case.
venue The location of a trial or hearing.
veto The power of a chief executive to block adoption of a law by
refusing to sign the legislation.
vicarious liability Liability of one party in place of another.
vice of vagueness The constitutional infirmity of a law that is so vague
that a person of ordinary intelligence cannot determine what it permits,
requires, or prohibits.
victim A person who is the object of a crime or tort.
victim impact evidence Evidence relating to the physical, economic,
and psychological impact that a crime has on the victim or victim’s family.
violations of civil rights Violations of federal and state statutes, local
ordinances, and regulations designed to ensure that society treats everyone
equally.
void contract An agreement that cannot be enforced by law.
voidable contract An agreement that a party can set aside. Example: A
minor can usually set aside (avoid) a contract.
void-for-vagueness doctrine See vice of vagueness.
voir dire “To speak the truth.” The process by which prospective jurors
are questioned by counsel and/or the court before being selected to serve
on a jury.
ward A minor or incapacitated individual placed under guardianship by
a court.
warrant A judicial writ or order directed to a law enforcement officer
authorizing the doing of a specified act, such as arrest or search.
warrant requirement The Fourth Amendment’s “preference” that
searches be based on warrants issued by judges or magistrates.
warrantless administrative searches Reasonable searches of premises
by government officials to determine compliance with health and safety
regulations.
warrantless arrest An arrest made by police who do not possess an
arrest warrant.
warrantless inspection See warrantless administrative searches.
warrantless searches Searches conducted by police or other officials
acting without search warrants.
warranty deed A deed from a grantor conveying an interest in real
property to the grantee with various covenants, including the grantor’s
warranty to defend the title to the property conveyed.
welfare programs Government-sponsored programs such as those that
furnish financial assistance for dependent children, medical assistance for
the poor, and unemployment compensation for persons out of work.
welfare reform Congressional action revising the criteria for
entitlements in welfare programs.
white-collar crimes Various criminal offenses committed by persons in
the upper socioeconomic strata of society, often in the course of the
occupation or profession of such persons.
will An expression (in most instances written) that makes known the
intent of the signer (testator or testatrix) as to the disposition of his or her
property. Also referred to as a last will and testament.
wiretapping The use of highly sensitive electronic devices to intercept
electronic communications.
worker’s compensation acts Statutes that require payments of monetary
benefits to workers injured within the scope of their employment and to
dependents of workers killed within the scope of their employment.
writ An order issued by a court of law requiring or prohibiting the
performance of some specific act.
writ of certiorari Order from a higher court directing a lower court to
send up the record of a case for appellate review.
writ of habeas corpus See habeas corpus.
writ of mandamus See mandamus.
writ of prohibition See prohibition, writ of.
wrongful act or omission An act or omission that infringes on the rights
of another person.
wrongful birth action A tort action by parents for the birth of an
impaired or deformed child because a physician’s negligent treatment or
advice deprived them of the opportunity to avoid or terminate the wife’s
pregnancy.
wrongful death acts Statutory laws that allow a tort action against a
person responsible for the wrongful death of an individual. The class of
persons eligible to bring suit and the elements of damages recoverable
vary among the states.
wrongful life action A tort action brought on behalf of a child born with
birth defects whose birth would not have occurred but for negligent
medical advice or treatment.
abortion, 5, 51, 52, 79, 80, 81, 98, 109, 155, 156, 310-313
absent without leave (AWOL), 47
abusive offenses, 133
accession, in property law, 215-220
accessories to crimes, 128-129
accused, rights of the, 104
acts of God, in contract law, 259
actus reus, 127
Adams, John, 21
adjudication, by administrative agencies, 472-475
adjudication, formal, 473
adjudication, informal, 473
adjustable rate mortgages, 227
administration of justice, offenses against, 150
administrative agencies, 29, 53-54, 458, 476-477
administrative detention, 468-469
administrative law, 54, 457-483
administrative law judge (ALJ), 473
Administrative Procedure Act, 463-466, 473, 476
administrative search warrant, 467
administrative searches, 467-468
administrator of estate, 238
admissibility, requirements of, 345-346
adoption, 306-307
adultery, 120, 165
advance directive for medical decisions, 309
adversarial system, 15, 65-66
Aereo Inc., 216-217
affiant, 365
affidavit, 365
affirmance, by appellate court, 352
affirmative action, 25, 110-111, 433-435, 440-441
affirmative defenses, 152-159, 182
“affluenza” defense, 162
African-Americans, discrimination against, 429-438
after-born children, 237
age discrimination, 426, 443
Age Discrimination Act of 1975, 426
Age Discrimination in Employment Act, 426
agency enforcement powers, 469-472
agency investigations, 467-468
aggravating factors, in death penalty cases, 394
Aid to Families with Dependent Children (AFDC), 427-428
aiding and abetting, 128
aiding the enemy, 151
air traffic controllers, 481
alcohol-related offenses, 146-147
Alcohol, Tobacco, Firearms and Explosives, Bureau of (ATF), 56-57
alcoholic beverages, prohibition of, 143, 197-198
alibi, 151-152, 387
alimony, 291, 293-295, 296
Alito, Samuel, 42, 85, 96, 99, 439, 476
allocution, right of, 390
alternative dispute resolution (ADR), 61, 67-68
American Bar Association (ABA), 64
American Law Institute (ALI), 26, 123, 153, 178, 248, 396
American Revolution, 17, 18, 38, 92, 122
American Telephone and Telegraph Co. (AT&T), 272, 417, 418
American Taxpayer Relief Act, 230
Americans with Disabilities Act (ADA), 27, 426
Amish, 124
ancient legal systems, 10-11
ancillary administration of estate, 239
annual percentage rate (APR), 272
annulment, 290-291
answer to complaint, 331-332
Anthony, Susan B., 437
Antitrust Division, U.S. Department of Justice, 417
antitrust law, 417-419
antitrust violations, 143
appeal, notice of, 349
appeals of right, 43, 350, 351, 398
appeals process, 397-400
appellant, 350
appellate courts, 27, 38, 40, 48, 52, 123
appellee, 350
Aquinas, Thomas, 4
arbitration, 37, 67
Arizona v. United States, 371-372
arms, right to keep and bear, 101-102, 107, 149
arraignment, 380-381
arrest, 369-370
arrest warrant, 369
arson, 132, 134, 141, 142, 165
Articles of Confederation, 18, 36, 90
Ashcroft, John, 466
Ashcroft v. ACLU, 125
Ashwander rules, 80
Ashwander v. Tennessee Valley Authority, 79
assault and battery, tort of, 184
assault, aggravated, 133
assaultive offenses, 133
assembly, freedom of, 22, 95
association, freedom of, 101
Association for Molecular Biology v. Myriad Genetics, 216
assumption of risk, 182-183
attempt, offense of, 129-130
Attorney General, U.S., 35, 59, 136, 160
attorney’s fees, 223, 235, 293, 295, 309, 333, 334, 343
attorneys general, state, 35, 59, 160, 269
authority of law, as defense to tort claim, 189
Authorization to Use Military Force, 479
automatism, defense of, 152-154
automobile exception, 366
Bachelor of Laws degree (LL.B.), 60
bail, 23, 104-105, 375, 377-378
bailee, 219
bailments, 219
bailments, gratuitous, 219
bailor, 219
bait and switch advertising, 272
banking and securities, 419-422
bankruptcy, 37, 83, 274-275
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 275
bankruptcy courts, 40, 41
bankruptcy proceedings, 274
bar, admission to the, 60-61
bar, organized, 61-62
barristers, 15, 17, 60, 122
battered child syndrome, 158
battered woman syndrome, 158
battery, aggravated, 133
battery, offense of, 133
Baze v. Rees, 396
Bernanke, Ben, 227
Bell Aliant, 255
Bell Telephone Company, 417, 418
bench trial, 335-336, 339, 341, 342, 385, 387, 388
Benton v. Maryland, 107
Bergdahl, Bowe, 451
Berghuis v. Thompkins, 372
Berman v. Parker, 233
best evidence rule, 348
best interests of the child test, 298
bid rigging, 143
Bill of Rights, 12, 17, 20-24, 28, 36, 94-105, 106-107, 124-126, 165, 360,
401, 402, 436
adoption of, 94-95
incorporation of, 24, 106-107, 360
bills of attainder, 92, 93-94
Black, Hugo, 376
Blackmun, Harry, 82, 109, 310, 341, 462, 472
Blackstone, William, 4, 17, 65, 122
Blackstone’s Commentaries, 4, 17, 65, 122
Blockburger v. United States, 160
Blueford v. Arkansas, 389
blue sky laws, 269
board of adjustment, 232
Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr,
202
board of equalization, 226
board-certified attorneys, 62
Boehm and Allen v. Allen, 239
bona fide purchaser, 220
Bonaparte, Napoleon, 11-12
boot camps, 169
Boumediene v. Bush, 400
Brady v. Maryland, 381-382
Brandeis, Louis D., 79
Brandenburg v. Ohio, 124
breach of contract, 14, 16, 249, 259-260, 330
breach of duty, 179, 180-181
Brennan, William J., 54, 82, 125, 235, 337, 448
bribery, 150
briefs, 350-351
Broadhead v. Terpening, 229
Brown v. Board of Education, 24, 53, 78, 110
bureaucracy, 27, 35, 40, 53-54, 458, 459, 460
legislative control of, 461-462
Burger Court, 103
Burger, Warren E., 82, 88, 461
burglary, 13, 28, 123, 134, 141-142, 152
Burnett, Carol, 186
Burwell v. Hobby Lobby, 96
Bush, George H.W., 42, 81, 87, 440, 441, 463
Bush, George W., 42, 45, 47, 85, 87, 93, 275, 400, 450, 451
business associations, 265-271
business law, 247-279
business, regulation of, 270-271, 466
cameras in the courtroom, 386
canon law, 11, 290
Cantwell v. Connecticut, 107
capacity to commit a crime, 122, 152-154
capias, 369
capital crimes, 165
capital punishment (see death penalty)
capital trial, 165-166, 390, 398
Capitol Police, 55
Cardozo v. True, 263
carjacking, 140, 166
Carmell v. Texas, 93
Carter Administration, 465
case management, 334-335
casebooks, 61
castle doctrine, 158-159
cause of action, 188, 192, 194, 196, 197, 200, 293, 330, 332
caveat emptor, 191, 271
cease and desist orders, 50, 417, 469
Central Intelligence Agency (C.I.A.), 447-448, 477
Central Intelligence Agency Act of 1949, 447
certiorari, writ of, 43, 51, 63, 88, 125, 205, 287, 350, 352, 426
challenges for cause, 338
change of venue, motion for, 380
charitable immunity, 204
Chase, Samuel, 46
Check Clearing for the 21st Century Act, 264
checks and balances, 19-20, 80, 83, 88
Chicago B&Q Railroad v. Chicago, 107
Chicago v. Morales, 148
child abuse, 129, 138, 166, 346, 384
child custody, 48, 138, 298-303
child custody, interstate disputes over, 302-303
Child Online Protection Act, 125
child pornography, 99, 125, 145, 163
child-shield statutes, 384
child snatching, 138, 303
child support, 275, 293, 300, 303-304
Chisholm v. Georgia, 203
Church of England, 22
Church v. Church, 301
Cicero, 4
Cipollone v. Liggett Group, Inc., 205
Circuit Courts (See Courts of Appeals, U.S.)
citation, 351, 353
citizen-initiated lawsuits, 470
city attorneys, 60
City of Akron v. Akron Center for Reproductive Health, 311
City of Ontario v. Quon, 363-364
civil and criminal law, distinction between, 13-14
civil disobedience, 5, 6-7, 155
civil liberties, 76, 112
civil procedure, 25, 51, 60, 327-356
civil process, 331-332
civil rights, 5, 6, 23, 24, 25, 27, 55, 60, 76, 83, 101, 105-106, 110-112,
336, 414, 426, 428-444, 469, 481
Civil Rights Act of 1866, 431
Civil Rights Act of 1870, 431
Civil Rights Act of 1871, 431
Civil Rights Act of 1875, 431
Civil Rights Act of 1964, 25, 110, 270, 426, 431-432, 433, 435, 438, 439,
469, 481
civil service, 480-481
Civil Service Reform Act of 1978, 481
civil suits, 13, 39, 44, 50, 51, 55, 60, 79, 104, 121, 137, 196, 328-355, 370,
380, 417, 420, 430, 441, 469-470
civil unions, 285-286
Civil War, 26, 42, 56, 80, 87, 90, 93, 200, 429, 430, 431, 470
Civil War Amendments, 23, 110, 430, 436
class action, 199, 205, 333
Clayton Act, 417
Clean Air Act, 416, 444, 445, 467, 470, 471
Clean Water Act, 445, 467, 470
clear and present danger doctrine, 98, 100
Clinton, William Jefferson, 36, 42, 51, 59, 89, 424, 425, 443
closing arguments, 66, 342, 388
cocaine possession, 120
Code of Federal Regulations (CFR), 417, 460, 464
Codes of Fair Competition, 460
codicil to will, 237
codification, 11, 25-26
Colautti v. Franklin, 311
Colgrove v. Battin, 336, 337
collateral, 218, 221, 224, 265
collateral attack, 400
collateral source rule, 207
collateralized debt obligations, 224
collective bargaining, 270, 423
Columbia/HCA, 425
Commander-in-Chief, 20, 86, 87, 451
commercial paper, 261, 262-264
common law (see English Common Law)
Communications Decency Act, 125
community-oriented policing, 55
community property, 225
Community Reinvestment Act, 420
community service, 169
comparable worth, 438
comparative negligence, 182-183, 343
compounding a crime, 150
computer crimes, 139
concurrent jurisdiction, 42
condominium, 225-226
conduct unbecoming an officer, 151
confessions, 23, 55, 348, 372-373, 380
conflict resolution, 9
confrontation, right of, 384
confusion, 220
Congress, United States, 19, 35-36
consent, defense of, 136-137, 155, 189
consent searches, 361-362
conservator, 309
consideration, 146, 250, 251-252
conspiracy, 129, 131-132
Constitution, U.S., 18-22
constitutional amendments, 21-24, 81, 94-111
constitutional and statutory authority, defenses based on, 159-161
Constitutional Convention of 1787, 21, 76, 94, 429, 437
constitutional interpretation, 76-77
constitutional law, 28, 39, 75-117
constitutional supremacy, 19, 76
constitutions, 7
constructive notice, 195
consumer credit laws, 273
Consumer Credit Protection Act, 272, 421
consumer protection, 271-274, 420-421
contempt of court, 51-52, 64, 150, 304, 379, 387
Continental Congress, 18
contingent fees, 208
continuance, motion for, 380
Contract Clause, 94
Contract with America Act of 1996, 424, 463
contracts, 60, 94, 108, 113, 193, 202, 203, 227, 231, 246-279
contributory negligence, 182, 183, 199, 209, 340
conversion, tort of, 184, 188, 190
Cooper v. Aaron, 53, 54
cooperative ownership, 225-226, 242
Copyright Office, U.S., 216
copyrights, 83, 132, 215-217, 329
corporal punishment, 164-165, 168
corporations, 9, 248, 265-270, 271, 276, 285, 329, 416
corpus delecti, 135
Corpus Juris Civilis, 11
cost-benefit analysis in rulemaking, 466
Council on Environmental Quality, 444
counsel, right to, 23, 104, 374-376, 377, 394, 398-399
counterclaim, 261, 332, 335
county attorneys, 60
Court of Appeals for the Armed Forces, 39, 43, 47, 402
Court of Federal Claims, 44, 203
Court of International Trade, 39, 44
Court of Veterans’ Appeals, 39, 44
courts-martial, 47, 151, 400, 401-402
Courts of Appeals, U.S., 40-41, 43, 274, 288, 353-354, 399
courts of last resort, 43, 52
covenant not to compete, 255
creation science, 97
credit card fraud, 141
crime as injury against society, 121, 396
crime victim, 121, 169-170, 369, 392, 396-397
crimes, elements of, 127, 160, 388
crimes, parties to, 128-129, 131
criminal contempt, 51, 150, 481
criminal intent, 127, 149, 152, 156, 162
criminal law, 13-14, 22-23, 25-26, 29, 47, 56, 57, 58, 119-175, 355, 360,
375, 396, 397
criminal procedure, 25, 51, 92, 120, 359-409, 451
criminal responsibility, 121-122, 151-152, 171
criminal syndicalism, 124
cross-examination, 65, 66, 334, 339-340, 355, 383-384, 387, 466
cruel and unusual punishments, 23, 104-105, 165, 167, 171
curfews, 149
curtilage, 28, 123, 141-142, 159
Daimler AG v. Bauman, 329
Dallas Buyers Club, 217
damages, 14, 44, 51, 64, 121, 178, 182, 197, 202, 205, 207, 208, 240, 256,
259-260, 261, 330, 430, 439, 442, 470
Dartmouth College Case, 248
Daubert v. Merrell Dow Pharmaceuticals, 341, 383
Davis v. Davis, 315
Davis, Kenneth Culp, 463
Davis, Wendy, 312
deadly force, use of, 156, 157, 158-159, 190
death penalty, 5, 47, 50, 105, 165-167, 171, 386, 394-396, 399, 402
decisional law, 27-28, 123, 155
Declaration of Independence, 4, 18, 110
declaratory relief, 330, 335
deed of trust, 223
defamation, 99, 178, 184, 185-188, 190, 196, 203
default judgment, 332
defendant, 13, 14, 15, 50-51, 66, 103, 104-105, 121, 130-131, 151-152
defendant, constitutional rights of, 383-385
Defense of Marriage Act, 241, 286, 287
defense of others, 158
defenses to criminal charges, 151-163
defenses to intentional tort claims, 189-190
defenses to negligence, 182-183
deficiency judgment, 223
DeJonge v. Oregon, 107
delegation of legislative authority, 27, 29, 89, 416, 459-461, 462, 463
democratization, 23
Department of Commerce, U.S., 216
Department of Education, U.S., 440
deportation, 468-469
depositions, 66, 194, 296, 334, 380, 382
deprivation of constitutional rights, tort of, 200-202
deterrence of crime, 163, 164, 166
Devlin, Lord, 8
direct examination, 66, 339-340, 382, 384
directed verdict, 341, 387
disabilities, discrimination against persons with, 27, 442, 469
discharge from debts, 256, 275
discipline and removal of state judges, 50
discovery, 66, 194, 296, 333-334, 340, 381-382
discretionary activities, 203
discretionary review by appellate court, 349, 350, 351-352, 398-399
discrimination, 6, 23, 25, 27, 61, 62, 101, 110-111, 248, 270-271, 289,
333, 339, 426, 428-443
age-based, 443
against persons with disabilities, 442
against sexual orientation, 442-443
gender-based, 436-442
in employment, 438-439, 443
invidious, 289
racial, 23, 25, 110, 429-436, 469
dismiss, motion to, 380
disorderly conduct, 148
disparate impact, 432
distributive articles, 19
District Courts, U.S., 39, 40, 42, 43, 46, 47, 216
diversity jurisdiction, 39, 329
divorce, 290-298
Divorce Code of Pennsylvania, 297
domestic partnerships, 285-286
dominion and control, 218
donors and donees, 218
double jeopardy, 23, 103, 107, 160, 389
Douglas, William O., 54, 310
Dow Chemical Co. v. United States, 468
Draco, Code of, 11
dram shop acts, 197
Dred Scott Decision, 105, 106, 430
driving under the influence (DUI), 147, 364
driving while intoxicated (DWI), 147
driving with an unlawful blood alcohol level (DUBAL), 147
drones, 479
drug courier profiles, 371
Drug Enforcement Administration (DEA), 57
drug offenses, 57, 146-147
drug testing, 57, 364, 368, 482
drug trafficking, 132, 143, 383, 391, 392, 472
drugs, war on, 40, 57, 103, 368, 391, 392
Due Process Clauses, 23, 103, 105, 125-126, 397, 473-474
due process of law, 12, 23-24, 92, 103, 105, 106, 108, 125-126, 148, 149,
151, 162, 267, 287, 302, 307, 309, 329, 349, 360, 374, 375, 382, 383,
394, 397, 399, 428, 430, 459, 466, 472, 473-475
procedural, 23, 106, 475
substantive, 23, 24, 103, 108
due-on-sale clause, 223
Duke University, 217
Duncan v. Louisiana, 107
durable power of attorney, 309
duress, 154-155, 239, 257, 307
dying declarations, 348
easements, 227, 228, 229, 230, 235, 236
ecclesiastical courts, 12, 283, 291
e-cigarettes, 458
Economic Stabilization Act of 2008, 421-422
Education for All Handicapped Children Act, 442
Edwards v. South Carolina, 107
Eighteenth Amendment, 143
Eighth Amendment, 23, 104-105, 165, 166, 167, 168, 170, 171, 377, 378,
472
Eisenhower, Dwight D., 24, 53, 82, 447
elder abuse, 138
electronic eavesdropping, 362
Electronic Fund Transfer Act, 264
Eleventh Amendment, 42, 203
Elf-Man, 217
embezzlement, 139
emergency searches, 366
eminent domain, 34, 61, 103, 104, 232-236
employer hiring practices, 193
employer-employee relationships, 193, 199
employment discrimination, 61, 62, 432, 433, 438, 442, 443, 481
enabling legislation, 27, 459, 473
Endangered Species Act, 445-446
English Bill of Rights, 17, 93
English common law, 12-17, 22, 23, 24, 25, 26, 28, 29, 38, 60, 65, 92, 100,
122, 130, 135, 147, 151, 152, 160, 164, 178, 188, 191, 195, 196, 197,
202, 203, 214, 221, 224, 225, 242, 248, 251, 256, 265, 271, 276, 283,
293, 298, 306, 361
entrapment, 146, 161-162, 163
enumerated powers of Congress, 36, 83-84, 121, 419
environmental crime, 143, 150-151
environmental impact statement, 444
environmental law, 444-447
Environmental Protection Agency (EPA), 27, 53, 55, 198, 416, 445, 464,
468
environmental regulations, 231
Equal Employment Opportunity Commission (EEOC), 27, 439
Equal Pay Act, 438, 439
Equal Protection Clause, 23, 110, 125, 232, 288, 294, 299, 339, 378, 430,
433
equal protection of the laws, 27, 29, 78, 106, 110-111, 112, 113, 123, 125-
126, 232, 286, 430
equitable distribution of marital assets, 295, 297, 298
equity, 16
Erin Brockovich, 200, 333
error correction function of appellate courts, 28, 349
escape, 150
Espionage Act of 1919, 6, 100
Establishment Clause, 95, 97-98
estate planning, 241
estate taxes, 241
estates during the life of another, 220
estates in real property, 220, 224-226
Ethics in Government Act of 1978, 89
Euclid v. Ambler Realty Co., 231-232
Everson v. Board of Education, 107
eviction, 230
evidence, 14, 55, 65, 66, 103, 137, 151, 153, 257, 258, 343-349, 373-374,
380, 382, 395
circumstantial, 344
classifications of, 344-345
competency of, 345-346
derivative, 373
direct, 344
evidentiary presumptions, 344
exculpatory, 382
indirect, 344
opinion, 349
relevance of, 345
rules of, 328
testimonial, 344
Ex Parte McCardle, 80
ex post facto laws, 92, 93-94
Excessive Fines Clause, 104-105, 170, 472
exclusionary rule, 368, 369, 373
excuse or justification, defenses asserting, 152, 154-156
Executive Office of the President, 466
executive orders, 7, 35, 39, 47, 52, 93, 400, 433, 443, 460, 466
executive power, 86-88
exhaustion of remedies, 476
exigent circumstances, 349, 363, 364, 365-366, 367, 370
expert witnesses, 340-341, 347
expression, freedom of, 98-101, 124-125
extortion, 142-143
Exxon Shipping Co. v. Baker, 201
Exxon Valdez, 201
eyewitness testimony, 344
Fair Credit Billing Act of 1974, 273
Fair Credit Reporting Act of 1970, 273
Fair Debt Collection Practices Act of 1977, 273
Fair Housing Act, 230, 435
False Claims Act, 470
false imprisonment, crime of, 133, 137-138
false imprisonment, tort of, 178, 184-185
false pretenses, 139, 141
Family and Medical Leave Act, 443-444
family law, 48, 67-68, 281-323
Far West Modular Home Sales, Inc. v. Proaps, 215
fault concept, in automobiles, 206-207
fault concept, in divorce, 291-292
Federal Aviation Administration, 458, 481
Federal Bail Reform Act of 1984, 378
Federal Bureau of Investigation (FBI), 56
Federal Bureau of Prisons, 55
Federal Communications Commission (FCC), 27, 469
federal court system, 38-47
Federal Deposit Insurance Corporation (FDIC), 419, 420
Federal Gun Control Act of 1968, 149-150
federal habeas corpus review, 399
federal judges, selection, tenure, and removal of, 44-46
Federal Labor Relations Authority (FLRA), 481
federal magistrate judges, 39, 46-47
Federal Mine Safety and Health Act, 467
Federal Mine Safety and Health Amendments Act, 475-476
Federal Pure Food, Drug and Cosmetic Law, 271-272
federal question jurisdiction, 39, 350
Federal Register, 460, 464, 465, 466
Federal Reserve Act of 1913, 419
Federal Reserve Board, 419
Federal Reserve System, 419
Federal Rules of Appellate Procedure, 350
Federal Rules of Criminal Procedure, 385, 386
Federal Sentencing Reform Act of 1984, 168
Federal Tort Claims Act, 203
federal tort liability, 203
Federal Trade Commission (FTC), 272, 417
Federal Water Pollution Control Act of 1972 (see Clean Water Act)
federalism, 18-19, 34, 68, 89-91, 428, 445
coercive, 91
cooperative, 91, 428, 445
dual, 91
Federalist Paper No. 47, 88
fee simple estates, 220
fee tail estates, 220
felonies, 13, 120, 134, 165, 377, 391, 392
Fernandez v. California, 362
feudalism, 214
Field, David Dudley, 25
Fifteenth Amendment, 23, 430
Fifth Amendment, 103-104, 106, 159, 160, 214, 233, 235, 236, 287, 372,
374, 379, 380, 387, 389, 466
fighting words, 99
financing statement, 265
fines, excessive, 23, 104-105, 472
firearms manufacturers, liability of, 205-206
firefighter’s rule, 195-196
First Amendment, 22, 62, 63, 81, 95-101, 124-125, 126, 132, 145, 148,
162, 168, 185, 187, 202, 230, 386, 440, 481-482
Fish and Wildlife Service, U.S., 55
flag burning, 81, 124-125
Florida Bar v. Went For It, Inc., 63
Florida Crimes Compensation Act, 397
Florida v. Harris, 366
Florida v. Jardines, 366
Folsom v. Marsh, 216
Food and Drug Administration (FDA), 27, 198, 458, 464
Food and Drug Administration v. Brown and Williamson Tobacco Corp.,
464
force majeur clauses, 259
force, defenses justifying use of, 156-159
force, use of by police, 370
foreign affairs, presidential primacy in, 87
Foreign Intelligence Surveillance Act, 448-449
forensic experts, 347
forfeitures, 105, 143, 170, 472
forgery, 140-141
fornication, 120
Foundation Software Laboratories, Inc. v. Digital Equipment Corp., 258
Fourteenth Amendment, 23, 24, 78, 105-111, 112, 125-126, 159, 214, 232,
267, 294, 299, 305, 310, 339, 375, 378, 379, 382, 383, 387, 397, 430-
431, 433, 435, 473, 474
Fourth Amendment, 102-103, 145, 360-371, 467, 468, 482
fraud, tort of, 188-189
free press–fair trial issue, 386
Freedom of Information Act (FOIA), 458, 478
Friedan, Betty, 437
fruit of the poisonous tree doctrine, 373
Full Faith and Credit Clause, 286
fundamental errors, 398
fundamental rights, 79, 107, 477
Furman v. Georgia, 165-166, 394
gambling, 58, 120, 132, 143, 144, 145-146, 162, 362
garnishment, 273, 304, 471-472
gender equity, 436-442
general jurisdiction, 329
Georgia v. Randolph, 362
Gideon v. Wainwright, 107, 374, 376, 403
gift taxes, 285
Gilmore, Gary, 166
Gitlow v. New York, 107
Glorious Revolution, 17
Goldberg v. Kelly, 474
Gonzales v. Carhart, 311
Gonzales v. Raich, 415
Gonzales v. Reno, 477
Gonzales v. Oregon, 136, 466
good-faith exception to exclusionary rule, 368
Goodridge v. Dept. of Public Health, 286
Goodyear Tire v. Brown, 192
good-time credit, 168, 394
Goss v. Lopez, 474
Government Accountability Office, 425
Government in the Sunshine Act, 479, 483
governmental misconduct, defenses based on, 161-162
grand jury, 15, 46, 51, 55, 59, 103, 369, 370, 378, 379-380, 402, 471
grantee, 221
grantor, 221, 222, 236
Grayned v. City of Rockford, 126
Great Depression, 90, 91, 94, 208, 414, 420, 422
Great Society, 26
Gregg v. Georgia, 166, 394, 395
Griswold v. Connecticut, 108, 310
Gratz v. Bollinger, 434
Grutter v. Bollinger, 434
Guantanamo Bay, 93, 400, 451
guardian, legal, 309
guardianship, 48, 242, 253, 309, 328, 376
guilty, 377, 380
guilty but mentally ill, 154
Gulf of Tonkin Resolution, 87
gun control, 56-57, 91, 102, 149, 150
habeas corpus, 14, 21, 47, 51, 92-93, 354-355, 398, 399-400
habitation offenses, 141-142
habitation, defense of, 158-159
habitual offenders, 391-392
Hale’s Rule, 136
Hamdan v. Rumsfeld, 400
Hamilton, Alexander, 20, 77, 87
Hammurabi, Code of, 10-11
harmless error, doctrine of, 398
Hart, H.L.A., 8
Harvard Law School, 61
Hawaii Housing Authority v. Midkiff, 233
hazardous waste legislation, 446-447
hazardous waste regulations, 446-447, 464
headnotes, 354
Health and Human Services, U.S. Department of, 426
Health Care Financing Administration (HCFA), 425
hearing, right to, 24
hearsay evidence, 348, 365, 380, 472
Heart of Atlanta Motel v. United States, 432
Henry I, 12
Henry II, 12
Henry III, 16
higher law, 4-5
Hill, Anita, 441
Hinckley, John, 153, 482
Hogan v. City of Chicago, 107
Hollingsworth v. Perry, 287
Holmes, Oliver Wendell, Jr., 77, 98, 100, 214
Homeland Security, U.S. Department of, 56, 57, 449
homicide, 127, 129, 132, 133-135
Hoover, J. Edgar, 56
House Committee on Un-American Activities, 94
House of Representatives, U.S., 36, 45, 46, 59, 69, 81, 83, 89
housing discrimination, 435
Hughes, Charles Evans, 101, 422
hung jury, 343, 389
Hustler Magazine v. Falwell, 187
identification procedures, 55, 347, 373-374
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
468
illegitimate child (see out-of-wedlock children)
Illinois v. Caballes, 366
Immigration and Customs Enforcement (ICE), 57-58, 459, 468
Immigration and Naturalization Service (INS), 462, 463, 468, 477
Immigration and Naturalization Service v. Chadha, 462, 463
immigration, illegal, 57-58, 371, 468-469
imminent lawless action, 98, 124
immunity, 159-160, 379, 387
charitable, 204
contractual, 160
diplomatic, 160
in tort law, 203
interspousal, 203-204
parental, 204
sovereign, 202-203
transactional, 159, 379
use, 159
impeachment, 20, 45-46, 50, 89, 384
of federal judges, 20, 45-46, 50
of president, 59, 89
of witness, 384
implied consent, in tort law, 183
implied powers, 36, 84, 269, 414
implied warranty of fitness of goods, 262
implied warranty of merchantability, 262, 263
impossibility of performance, in contract law, 259
in camera, 137, 389
in forma pauperis, 350
In re Jennifer Ann Sprite & Michelle Marie, Minors, 308
In re Oliver, 107
incapacitation of offenders, 163, 164, 166
incarceration of offenders, 120, 164, 165, 167-169
incarceration, alternatives to, 169-170
inchoate offenses, 129-132
incorporation, articles of, 268, 269
incorporation, certificate of, 268, 269
incorporation, doctrine of, 24, 106-107
independent agencies, 54
independent counsel, 59, 89
independent source doctrine, 373
Indian Affairs, Bureau of, 55
Indiana Code, 25
indictment, 103, 161, 369, 379, 380, 382, 383, 388, 471
indigent defendants, representation of, 63-64, 375, 390, 398
Industrial Revolution, 90, 150, 414
industrialization, 26
infancy, defense of, 152
infliction of emotional distress, intentional, 186, 187
infliction of emotional distress, negligent, 196
information, in criminal procedure, 369, 378, 379, 380, 388
informed consent, 180, 195
inheritance taxes, 240-241
initial court appearance, in criminal case, 377
initial pleading, 331
injunctions, 16, 51, 101, 109, 125, 138, 217, 330, 336, 371, 422, 446, 469,
470
Inns of Court, 15, 17
insanity defense, 135, 152, 153-154, 292
Insanity Defense Reform Act of 1984, 153
insider trading, 143, 270
insubordination, 151
intent, general, 127, 133, 134, 137, 142, 152, 156
intent, specific, 127, 136, 139, 140, 141, 142, 152, 154, 155, 156
intentional torts committed under color or authority of law, 200-202
intentions of the Framers of the Constitution, 14, 19, 20, 22-23, 35, 76-77,
88, 90, 91, 92, 98, 101, 104, 106
interference with property, tort of, 188
intermediate appellate courts, 40, 48, 49, 349, 351, 352, 353
intermediate judicial scrutiny, 98, 108, 441
Internal Revenue Service (IRS), 44, 55, 96, 241, 268, 459
International Shoe v. Washington, 329
interrogation of suspects, 372-374
interrogatories, 62, 296, 334
interstate abduction of children, 303
Interstate Commerce Act, 26
intervening act, in tort law, 181-182
intestate succession, 237-240
intoxication, as defense, 152-153
invasion of privacy, 178-179, 184, 186-187, 188
inventory search, 367
investigate, power of Congress to, 84-86
investigatory detention, 370-371
invitees, 195
involuntary dismissal, 341
involuntary manslaughter, 134, 389
involuntary servitude, 23, 260
Jacobson v. United States, 163
Jefferson, Thomas, 8, 18, 21, 46, 87, 90, 94
Jencks Act, 382
Jencks v. United States, 382
Johnson, Lyndon B., 25, 87, 443, 447
Johnson v. Schmitz, 249
joint and several liability, 207
joint custody, 300-301
joint tenants with right of survivorship, 218
judgment notwithstanding the verdict, 343
judgment of acquittal, motion for, 387
judgment of the court, 351-352
judicial accountability, 48
judicial activism, 78
judicial administration, 50
judicial conference, 351
judicial decision, 7
judicial independence, 48
judicial notice, 344
judicial review, 20, 21, 28, 29, 35, 67, 76, 78-80, 83, 397, 475-478
judicial review of agency actions, 475-478
judicial review, access to, 475-476
judicial role, 52
judicial selection, 48-50
judicial self-restraint, 78
judicial systems, American, 38-52
Judiciary Act of 1789, 38, 41, 399
Judiciary Act of 1790, 375
Judiciary Act of 1891, 40
Juris Doctor degree (J.D.), 60
jurisdiction, 7, 12, 13, 16, 20, 21, 24, 35, 39-44, 47, 48, 49, 51, 58, 80-81,
151, 192, 293, 302-303, 328-329, 331, 332, 349, 351, 354-355, 398,
399, 400, 462, 473, 475
jury, 11, 12, 14-15, 22, 23, 47, 65-66, 93, 104, 107, 208, 335-339, 342-
343, 385-392
composition of, 385
deadlocked, 389
death qualification of, 386
deliberations of, 342-343, 388-389
instructions to, 66, 342, 388
right to trial by, 93, 104, 107, 208, 384-385, 392
selection of, 66, 336, 339, 385
sequestration of, 342, 389
size of, 336
verdict by, 342-343, 388-389
just compensation, in eminent domain cases, 103, 106, 107, 113, 214, 232,
233, 234-236, 242
Justice, U.S. Department of (DOJ), 27, 35, 56, 57, 59, 167, 370, 417, 418,
425, 436, 442, 469, 471
Justinian, Code of, 11, 12
Kagan, Elena, 42, 98
Karen Quinlan Case, 316-317
Katz v. United States, 103, 362
Kelo v. City of New London, 233
Kennedy, Anthony, 63, 85, 126, 418
Kentucky Resolution, 90
Kevorkian, Jack, 135
key numbers, 354
kidnapping, 120, 132, 133, 134, 166, 177-178, 303
King, Dr. Martin Luther, Jr., 5
King George III, 248
King, Rodney, 55, 201, 370
Klopfer v. North Carolina, 107
Ku Klux Klan, 98
labor law, 422-423
Labor Management Reporting and Disclosure Act, 423
Labor, U.S. Department of, 304, 444, 467
land tenure system, 220
land use planning, 231
land use zoning, 231
landlord-tenant law, 229
Landrum-Griffin Act, 423
larceny, 13, 120, 139, 141, 152, 155
last will and testament, 139, 237
law enforcement agencies, 35, 53, 54-59, 137, 360, 361, 367, 373, 472,
478
Law School Aptitude Test (LSAT), 60
law, functions of, 7
lawmaking function of appellate courts, 28, 124, 349
Lawrence v. Texas, 126
Lawson, Gary, 461
Lawyers’ Edition, 352
leading questions, 340, 384
Ledbetter v. Goodyear, 438, 439
Ledbetter, Lily, 438
Ledbetter Fair Pay Act of 2009, 438
Lee v. Miner, 479
Leegin Creative Leather Products v. PSKS, 418
Lefemine v. Baron, 261
legal aid, 63
legal assistance for indigent persons, 63, 374-376
legal education, 4, 17, 60-61
legal profession, 60-65
legal separation, 290-291
legal specialization and certification, 62
legality of purpose, in contract law, 253-254
legislation, 7, 35-38, 411-456
legislative power, 19, 27, 34, 83-86, 89, 123, 414, 415, 422, 451, 460, 461,
462, 463
delegation of to executive branch, 416, 460, 461, 462, 463
legislative veto, 462-463
legislatures, 35-38
lemon laws, 272
Lemon test, 97
Lemon v. Kurtzman, 97
lessor-lessee relationship, 229-231
lethal injection, 165, 167, 395-396
levies, 471-472
lex talionis, 11
libel, 22, 94, 104, 185-186, 187, 190
licensees, 195
licenses, in marriage, 284
licenses, in property, 228
licenses, issued by agencies, 469
licenses, occupational, 458
liens, 214, 222, 223, 336, 471-472
life support systems, termination of, 316-317
life-sustaining measures, extraordinary, 316-317
limited jurisdiction, courts of, 48, 49, 122, 398
limited liability company (LLC), 265, 267, 270, 276, 277
limiting doctrines, 78-80
living Constitution, 77
living will, 316, 317
loan sharking, 143
lobbying, 61, 98, 481
Locke, John, 18
loitering, 148
long-arm statutes, 331-332
Los Angeles, riot of, 201, 370
loyalty oaths, 93
Lucy v. Zehmer, 250
M’Naghten Rule, 153
MacPherson v. Buick Motor Car Co., 193
Madison, James, 20, 21, 52, 54, 76, 77, 80, 81, 88, 94, 105
Magna Carta, 12, 13, 19, 104
Magnuson-Moss Warranty Act of 1975, 273-274
mala in se offenses, 120, 122, 170
mala prohibita offenses, 120, 122, 151
malfeasance, 482
malicious mischief, 142
Malloy v. Hogan, 107
managed care, 425
mandamus, writ of, 21, 51, 354
manslaughter, 13, 127, 133, 134, 152, 388, 389
Manual for Courts-Martial, 47
Manziel, Johnny, 217
Mapp v. Ohio, 103, 368, 369
Marbury v. Madison, 20, 21, 52, 54, 76, 77, 80, 81
marital deduction, 240-241
marital partners, rights and obligations of, 284-285
marital property, 296-298
marriage, 283-285
marriage contract, dissolution of, 290-298
marriage, same-sex, 286-289
Marshall v. Barlow’s, Inc., 467
Marshall, John, 21, 52, 54, 77, 86, 90, 248, 267
Marshall, Thurgood, 126
Marshals Service, U.S., 55-56
Marvin v. Marvin, 256
Marxism, 9
Maryland v. Craig, 384
Maryland v. King, 363
Maryland v. Shatzer, 373
Massachusetts v. EPA, 470-471
Mathews v. Eldridge, 474-475
matrimonial domicile, 291-292
McConnell, Mitch, 45
McCullen v. Coakley, 98-99, 311
McCulloch v. Maryland, 84, 86, 419
McDonald v. City of Chicago, 102, 107, 149
McDonald’s coffee case, 208
mediation of legal disputes, 67-68
Medicaid, 53, 85, 205, 424-426, 427, 470
medical treatment, decisions concerning, 316-318
Medicare, 424-426, 470
Medicare and Medicaid fraud, 425
Megan’s Law, 137
mens rea, 127, 153
Merit Systems Protection Board, 480
Microsoft Corporation, antitrust suit against, 418-419
military courts of review, 47, 402
military judge, 402
military justice system, 47, 400-402
military tribunals, 47, 93, 385, 400-402
Miller v. California, 145
Mint, U.S., 55
Miranda v. Arizona, 372-373
Miranda warnings, 159, 372-375
misdemeanors, 13, 20, 89, 120, 129, 161, 375, 376, 377, 389, 393
misfeasance, 482
misrepresentation, in contract law, 254-255
misrepresentation, in tort law, 184, 188-189, 203
Mississippi and Rum River Boom Co. v. Patterson, 234
Mississippi University for Women v. Hogan, 441
Missouri Plan, 49
Missouri v. McNeely, 364
mistake of fact, defense of, 154, 156
mistake of law, defense of, 154, 155
Mistretta v. United States, 461, 462
mitigating factors, in death penalty cases, 395
Model Code of Professional Conduct, 64
Model Penal Code, 26, 123, 127, 130, 131, 396
modern administrative state, 27, 459, 461
Monell v. New York City Dept. of Social Services, 202
monetary fines, 170
monetary policy, 419
money laundering, 143, 449
morality and law, 8
Morrison v. Olson, 89
mortgage meltdown of 2008, 223-224
mortgages, 221-223
mortgagors and mortgagees, 222
motions for rehearing, 354
motions, appellate, 349, 350
motor vehicle violations, 149
municipal law enforcement agencies, 58-59
murder, 13, 120, 133-134, 152, 161, 388
felony, 134
first-degree, 134
second-degree, 134
mutual assent, 250
mutual mistake, in contract law, 254-255
Napoleonic Code, 11-12
National Defense Authorization Act, 451
National Enquirer, 186
National Environmental Policy Act (NEPA), 444, 464
National Federation of Independent Business v. Sebelius, 84, 85, 425, 426
National Industrial Recovery Act, 460
National Labor Relations Board (NLRB), 82, 415, 422, 469
National Labor Relations Board v. Jones & Laughlin Steel Corp., 415, 422
National Labor Relations Board v. Noel Canning, 82
National Organization for Women, 427
National Pollution Discharge Elimination System, 470
National Recovery Administration (NRA), 460
National Security Act of 1947, 447, 476
natural law, 4-5, 28
Near v. Minnesota, 107
Necessary and Proper Clause, 36, 83, 84, 419
necessity, as defense to criminal charge, 155
necessity, as defense to tort claim, 190
negative defense, 152
negligence, 134, 178, 179-183
negotiable instruments, 26, 250, 262, 263, 264
negotiation of legal disputes, 67
New Deal, 26, 414, 422, 423, 452, 460, 461
New Frontier, 26
New York Times, 101, 188, 479
New York Times v. Sullivan, 188
New York Times v. United States, 101
New York v. Ferber, 145
New York v. Quarles, 374
Newton v. National Broadcasting Co., 186
Nineteenth Amendment, 11, 284, 437
Ninth Amendment, 105
Nixon, Richard, 82, 84, 87, 88
no-fault automobile insurance laws, 206-207
Nollan v. California Coastal Commission, 235
non-delegable duties, in contract law, 258
nonfeasance, 482
nonpossessory interests in land, 228
Norman Conquest, 12
notice of proposed rulemaking (NPRM), 463-464, 465
notice, right to, 23-24
Nuclear Regulatory Commission (NRC), 27, 458, 466, 469, 483
nullification, doctrine of, 90
O’Connor, Sandra Day, 63, 97, 125, 302, 442
Obama, Barack, 42, 45, 82, 85, 240, 426, 449, 450, 451, 471, 490
objection, general, 348
objection, specific, 348
obscenity, 99, 144-145
obstruction of justice, 89, 143, 150
Occupational Safety and Health Administration (OSHA), 27, 198, 459,
461, 467
offer and acceptance, in contract law, 250-251
Office for Civil Rights, U.S. Department of Education, 440, 469
Office for Civil Rights, U.S. Department of Health and Human Services,
426
Office of Management and Budget (OMB), 466
Office of Personnel Management (OPM), 480
open meetings, 479
opening statements, 66, 339, 387
opinions, judicial, 352
concurring, 352
dissenting, 352
of the court, 352
per curiam, 352
oral argument, 332, 351
ordeal, trial by, 14
order in the court, 386-387
ordinances, 7
Organized Crime Control Act of 1970, 132, 143
organized crime, 143-144
original intent, doctrine of, 76-77
original writs, 354
out-of-court settlements, 208, 374
out-of-court statements (see hearsay)
out-of-wedlock children, 300, 303, 304
oversight, legislative, 36, 84, 461
ownership, 214, 218, 225-226, 267, 270
Palsgraf v. Long Island Railroad, 181-182
panhandling, 148
Paperwork Reduction Act, 464-465
paralegals, 62
Parental Kidnapping Prevention Act (PKPA), 138, 303
parental rights, termination of, 306, 307, 308-309
parents, adoptive, 303, 306
parents, biological, 306
Parker v. Levy, 151
Parliament, English, 16, 256, 283, 397
parliamentary supremacy, 17
parliamentary system, 19
parol evidence rule, 257
parole, 168-169, 390, 391, 394
parole board, 168
parole revocation hearing, 394
partition suit, 225
partnerships, 248, 252, 265, 266, 267, 268, 270, 276
general partner, 266
limited partner, 266
past consideration, in contract law, 252
Patent and Trademark Office, U.S., 216, 217
patents, 37, 41, 83, 216-217, 329, 340
paternity, 303
PATRIOT Act (see USA Patriot Act)
Peel, Sir Robert, 58
penalty enhancement statutes, 391-392
Pentagon Papers Case, 101
peremptory challenges, 338-339, 385
peremptory challenges, gender-based, 339
peremptory challenges, racially based, 339
perjury, 46, 89, 150, 170, 185
perjury, subornation of, 150
Perkins v. Benguet Mining, 329
Perry v. Schwarzenegger, 287
personal representative, 196, 238, 256, 329
personal service, 331
persons, offenses against, 133-138
petitioner, 291, 292, 293, 300, 330, 331, 350, 351, 399
petty offenses, disposition of, 376-377
pharmacists, liability of, 204, 206
Philadelphia Convention, 18
Pickering v. Board of Education, 481-482
piercing the corporate veil, 269
plaintiff, 13, 14, 16, 66, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187,
188, 189, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 202, 205,
206, 207, 208, 216, 254, 259, 328, 329, 330, 331, 332, 333, 334, 339,
340, 341, 342, 343, 417, 430, 432, 442, 470, 476
Planned Parenthood v. Casey, 310, 311
Planned Parenthood v. Danforth, 311
plea bargaining, 51, 59, 378, 381
pleas in criminal cases, 50, 376, 380
guilty, 380
nolo contendere (no contest), 380
not guilty, 380
Plessy v. Ferguson, 78
Pointer v. Texas, 107
police misconduct, 55
police power of state legislatures, 24, 34, 83, 144, 231, 414
positive law, 4
possession, actual and constructive, 218
possession, adverse, 224
Postal Inspectors, Bureau of, 55
post-conviction relief, 398, 399-400
post-nuptial agreements, 237
Powell, Lewis, 82, 474
precedent, 13, 28, 43, 46, 52, 78, 100, 123-124, 265, 276, 282, 328, 364,
369, 418, 435, 449, 482
preclearance, in rulemaking, 466
preclearance, under Voting Rights Act of 1965, 436
preconception torts, 194, 197
pre-existing duties, 252
preferral of charges, 400-401
preliminary hearing, 378, 379
prenuptial agreements, 289-290
preponderance of evidence, 153, 154, 179, 339, 342, 383
presentence investigation, 380, 389, 390
presidential appointments to federal courts, 20, 44-45, 82
presumption of constitutionality, 78
pretrial conference, 334-335
pretrial confinement, 401
pretrial detention, 378
pretrial discovery, 340, 381-382
pretrial motions, 66, 350, 380, 382
pretrial process, in criminal cases, 376-383
pretrial release, 377-378
price discrimination, 417
price fixing, 143, 418
primitive societies, 10
principals, 128
Printz v. United States, 91
prior restraint, 22, 100-101
prison disciplinary hearings, 394
prisoners’ rights, 167-168
Privacy Act, 478
privacy, constitutional right of, 108-109, 310-311
privacy, reasonable expectation of, 362-363
privileged communications, 346
attorney-client, 346
clergy, 346
marital, 346
Prize Cases, The, 87
pro bono representation, 63
pro se defense, 375
probable cause, 103, 360, 362, 364, 365, 366, 367-368, 369, 370, 378, 379,
401, 448, 467
probate, 238
probate court, 48, 236, 238
probation, 121, 169, 170, 390, 391, 393, 397
probation officer, 393
products liability, 191-192, 198, 199, 206, 207
Professional Air Traffic Controllers Organization v. Federal Labor
Relations Authority, 481
professional malpractice, 194-195, 267
professional responsibility of attorneys, 50, 61, 63, 64
Prohibition, 143, 161
prohibition, writ of, 51, 354
promissory estoppel, 252-253
promissory notes, 215, 218, 221, 250, 263-264, 265
property, 213-245
abandoned, 219
community, 225
court-imposed distributions of, 296-298
defense of, 159
interference with, 188, 235
lost, 218
personal, 214, 218
real, 214, 215, 220, 221, 222, 224, 228, 231
real and personal, 214
rights, 11, 103, 106, 138, 214, 215, 233, 235
settlement agreements in divorce cases, 295-297
property crimes, 138-143
proprietary or operational activities, 203
prosecutorial agencies, 59-60
prosecutorial discretion, 59, 378
prostitution, 83, 120, 143, 144
Protestant Reformation, 22
proximate causation, 127, 179, 181-182, 219
public access to agency information, 478-480
public accommodation, places of, 110, 430, 431, 432, 433
public defender, 64, 375
public employment, law of, 480-482
public figures, defamation of, 99, 185-188
public health, 24, 34, 37, 83, 144, 150, 231, 458
public officials, defamation of, 99, 101, 185, 190
public order and safety, offenses against, 147-150
public safety exception to Miranda, 373, 374
public use, 34, 103, 214, 232-236
punishment, criminal, 163-170
punishment, proportionality of, 164
punitive articles, 151
purchase money mortgages, 222
purchasing a home, 227-228
purse, power of the, 87
putative father, 300, 303, 305, 306
quasi-judicial bodies, 27, 472
quasi-judicial tribunals, 40
qui tam suits, 470
quitclaim deed, 221
racial discrimination, 23, 25, 110, 429-436
Racketeer Influenced and Corrupt Organizations (RICO) Act, 143-144
rape and sexual battery, 136-137
rape shield laws, 137
rape trauma syndrome, 137
rape, at common law, 136
rape, reform of laws, 136-137
rational basis test, 108, 288, 289, 429, 443
Reagan, Ronald, 42, 82, 153, 440, 463, 466, 482
real estate, 170, 195-196, 220-228
reapportionment, 110, 436
reasonable accommodation, 442
reasonable doubt standard, 153, 154, 157, 383, 388, 392, 398
reasonable force, as defense to tort claim, 190
reasonable force, in defense of others, 158
reasonable force, in defense of property, 159
reasonable force, in self-defense, 156-157
reasonable person, in tort law, 179
reasonable suspicion, 360, 366, 367, 368, 370, 371
rebuttals, 342, 351
recess appointments, 82
reciprocal enforcement of child support obligations, 304
Reconstruction, 80, 430, 431, 435
Regents of UC-Davis v. Bakke, 434
regulation, 7, 26-27, 416, 458, 459, 460, 463-465
regulatory agencies, 7, 34, 53-54, 89, 416, 458-459, 478
Regulatory Flexibility Act, 465
regulatory takings, 235-236
Rehabilitation Act of 1973, 426, 442, 469
rehabilitation of offenders, 164
rehearing, en banc, 41, 354
Rehnquist Court, 82, 103
Rehnquist, William H., 82, 103, 109, 135, 187, 415, 461, 466
religion, free exercise of, 22, 95-96, 107, 124, 168, 230
religion, government establishment of, 22, 95, 97-98, 107
remand, by appellate court, 352
Reno v. ACLU, 125
reporters, of court decisions, 352
reporters, regional, 353-354
representation, delegate theory of, 35
representation, trustee theory of, 35
reproductive technology, 314
residence requirements, 293
resisting arrest, 150
Resource Conservation and Recovery Act of 1976, 446-447
Responsibility and Work Opportunity Reconciliation Act of 1996, 428
Restatement (Second) of Contracts, 248, 251, 253, 276
Restatement of Torts, 178
Restatement (Second) of Torts, 178, 182, 185, 192
Restatement (Third) of Torts, 192
restitution, 121, 141, 169-170, 260, 393, 397
restraining orders, 51, 293, 469, 481
restrictive covenants, 232, 435
retribution, 163-164, 170
reversal, by appellate court, 352, 398
rezoning, 231, 232, 236
right of redemption, 223
right to work laws, 423
Riley v. California, 363
riot, 147-148, 201, 370
robbery, 13, 120, 134, 140, 166
Robinson v. California, 107
Rocky Top, 217
Roe v. Wade, 79, 81, 109, 310, 311, 312
Rogers Communications, 255
Roman Catholic Church, 11, 22, 290
Roman law, 11
Roosevelt, Franklin D., 26, 414, 420, 422, 460, 461
Rotary Club, 441
Roth v. United States, 145
royal courts, 12
rule of law, 4, 12, 19, 23, 55, 68, 78, 88, 93, 106, 202, 402, 458, 475, 483
rulemaking, 27, 50, 54, 416, 417, 459, 462, 463-465, 466, 482
rules of judicial procedure, 44
Rylands v. Fletcher, 191
Scalia, Antonin, 42, 85, 89, 91, 102, 111, 235, 367, 461, 471
Schechter Poultry Corp. v. United States, 460, 461
Schenck v. United States, 100
school prayer controversy, 80-81, 97
school searches, 368
Schuette v. Coalition to Defend Affirmative Action, 434-435
Scott v. Sandford, 105, 106, 430
search and seizure, 23, 102, 107, 146, 360-371, 467-468
Sea World, 459
Second Amendment, 101-102, 107, 149
Secret Service, 56
Section 1983 actions, 200-202, 430, 431
Securities and Exchange Commission (SEC), 27, 270, 420, 458, 469, 470
Securities Exchange Act of 1934, 269
securities legislation, 420-422
security agreements, 218, 265
security deposit, 230
seditious libel, 22
selection and tenure of state judges, 48-50
selection, tenure, and removal of federal judges, 44-46
selective prosecution, 162, 378
self-defense, 122, 133, 135, 156-157, 158-159, 189, 190
self-incrimination, 23, 103, 107, 159, 160, 372, 374, 387
self-representation, 375-376
Senate confirmation of judicial appointments, 20, 44-45, 47, 82
Senate, U.S., 20, 36, 44-45, 46, 47, 59, 81, 82, 83
sentence, pronouncement of, 390
sentencing, 389-396
capital cases, 394-396
definite, 390-391
determinate, 391
indefinite, 391
indeterminate, 390
mandatory minimum, 391
Sentencing Commission, U.S., 392, 461
sentencing guidelines, 392-393
sentencing hearing, 390
Sentencing Reform Act of 1984, 168, 392
separate maintenance, 291
separation of church and state, 5, 97-98
separation of powers, 19-20, 27, 34, 88-89, 122, 460, 461
session laws, 38
Seventh Amendment, 104, 335, 336, 337
sexual battery, 136-137
sexual harassment, 441-442
sexual offenses, 120, 136-137, 152, 164
shared parental responsibility, 293, 300, 301
Shelby County v. Holder, 436
sheriffs, 58
Sherbert Test, 95-96
Sherman Antitrust Act, 270, 416, 418
Sinclair, Upton, 272
Sixth Amendment, 104, 107, 374-375, 382-383, 384, 385, 392, 400
slander, 99, 185-186, 190
slavery, 19, 23, 105, 106, 110, 429, 430, 437
Smith v. Maryland, 449
snail darter, 446
Snowden, Edward, 6, 449
Snyder v. Phelps, 99
sobriety checkpoints, 364
social control, 9
social host, 198
Social Security Act of 1935, 423, 427
Social Security Administration, 424, 458, 474, 483
Social Security Amendments of 1954, 424
Social Security Amendments of 1965, 424
social security, 53, 285, 286, 423-424
social welfare legislation, 423-428
Socratic method, 61
sole proprietorships, 248, 265-266
solicitation, offense of, 129, 130-131
solicitors, 60
Solorio v. United States, 400
Sotomayor, Sonia, 42
sovereign immunity, 202-203
specialized federal tribunals, 44
specific jurisdiction, 329
specific performance, 16, 259, 260, 330
speedy and public trial, right to, 23, 104, 107, 382-383, 385, 401
Speedy Trial Act, 382
Speedy Trial Clause, 23, 104, 107, 382, 385
spoils system, 480-481
spousal abuse, 136, 138
stalking, 133
Standard Oil Company, 416
standing, 79, 239, 267, 269, 287, 305, 361, 446, 448, 470, 476
Stanton, Elizabeth Cady, 437
stare decisis, 13, 16, 28, 78, 123-124
Starr, Kenneth, 59, 89
state action, 23
state and local tort liability, 202-203
state court systems, 48-50
state supreme courts, 43, 48
state’s attorneys, 59
state-sponsored discrimination, 110
statute of frauds, 230, 256, 276, 332
statute of limitations, 161, 195, 198, 199, 264, 332
Statute of Wills, 16
statutes, 7, 12, 17, 24-25, 36-38
statutes, publication of federal, 36-38
statutory construction, 25
statutory preclusion of judicial review, 475
Steel Seizure Case, 87
Stenberg v. Carhart, 313
stock market crash of 1929, 420
stock, common, 267
stock, preferred, 267
stockholders’ rights, 268, 269
stop-and-frisk, 367, 370-371, 374
Story, Joseph, 217
strict judicial scrutiny, 79, 107, 108, 288, 289, 434, 435, 467
strict-liability crimes, 127, 137, 149, 151, 152, 156
strict-liability torts, 178, 187, 191, 198, 199, 200, 209
strip searches, 363, 368
substantial capacity test, 153
substantive due process, 23, 24, 103, 108
substituted judgment, 317
suicide, 13, 109, 134-136, 312, 466
suicide, assisted, 109, 466
summary judgments, 335
summary justice, 376-377
summons, 376
sunshine laws, 479
Superfund Law, 447
suppress evidence, motion to, 380
Supremacy Clause, 90
Supreme Court of the United States, 41-44
Supreme Court Reporter, 352
suretyship, 256
surrogate motherhood, 314-316
gestational, 314, 315
traditional, 314
survival actions, in tort law, 194, 196
survival statutes, 196
survivorship, right of, 218, 225, 237
syllabi, 354
Taft, William Howard, 460
Taft-Hartley Act, 423
Takings Clause, 103-104, 233, 235, 236
Tarasoff v. Regents of the University of California, 180
target crime, 130
Tax Court, 39, 44
tax fraud, 143
taxes, ad valorem, 226
taxes, real estate, 221, 222, 223, 226-228
Teamster’s Union, 423
Tellico Dam, 446
Temporary Aid to Needy Families (TANF), 428
tenancy by the entirety, 225
tenancy in common, 225
tenancy, joint, 224-225
tenants in common, 225
“tender years” doctrine, 298, 300, 301
Tennessee Valley Authority, 55, 79, 268, 446
Tenth Amendment, 83, 90
Terry v. Ohio, 370-371
testamentary capacity, 237
testator and testatrix, in testamentary trusts, 237
testimony, unreliable, 347
Texas v. Johnson, 124-125
Texas v. White, 90
The Federalist, 77, 88
The Jungle, 272
theft, 10, 120, 139, 141
Third Amendment, 102
third-party creditor beneficiary, 258
third-party donee beneficiary, 258
Thirteenth Amendment, 23, 100, 105, 430
Thomas M. Cooley Law School v. American Bar Association, 475
Thomas, Clarence, 42, 85, 441
Thoreau, Henry David, 6
Thornburgh v. American College of Obstetricians and Gynecologists, 311
“three strikes” laws, 391
time, place, and manner regulations, 108
Title II, Civil Rights Act of 1964, 110, 431, 432
Title IX, Higher Education Act Amendments of 1972, 439-440, 469
title transfers, 220, 221
Title VI, Civil Rights Act of 1964, 469
Title VII, Civil Rights Act of 1964, 432, 438, 439, 481
tobacco litigation, 179, 204-205, 464
tolling, 161
tortfeasors, 178
torts, 14, 44, 48, 177-212
against property, 183, 184, 188, 190
defenses against, 182-183, 189-190
intentional, 183-190
negligent, 179-183
reform, 206-208
toxic, 179, 194, 198-199, 200
totality of circumstances test, 365
Town of Greece, New York v. Galloway, 98
Toxic Substances Control Act of 1976, 447, 464
trademarks, 215-217
transferred intent, in tort law, 184
Transportation, U.S. Department of, 27
treason, 6, 92, 124, 128, 166, 185
treaties, 7, 34, 35, 39, 90, 399
trespass to land, tort of, 184-188
trespassers, 190-195
trial by jury, right to, 12, 15, 93, 104, 113, 208, 337, 392
trial courts, 27, 38, 40, 48, 49, 52, 123, 328, 338
trial de novo, 398
trial procedures, 66, 382, 401
trust agreement, 236
trusts, 236
inter vivos, 236
living, 236
testamentary, 236
Truth in Lending Act, 272-273, 420, 421
TVA v. Hill, 446
Twenty-Fourth Amendment, 111, 435
Twenty-Sixth Amendment, 111
Two Treatises of Government, 18
unalienable rights, 4, 18
unconscionability, in contract law, 254
undue influence, 239, 240, 307
unemployment compensation, 427, 428
Unfunded Mandates Act of 1995, 465
unified bar, 61
Uniform Child Custody Jurisdiction Act (UCCJA), 138, 302
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),
138, 302
Uniform Code of Military Justice (UCMJ), 47, 151, 400
uniform codes, 26
Uniform Commercial Code, 26, 218, 254, 261-262, 274, 276
Uniform Marriage and Divorce Act, 294
Uniform Negotiable Interests Law, 264
Uniform Victims of Crime Act, 396-397
Uniformed Services Former Spouses’ Protection Act, 297-298
unitary system of government, 89
United States Attorneys, 59
United States Code, 25, 37
United States Code Annotated, 37-38
United States Government Manual, 460
United States Reports, 352
United States Statutes at Large, 36
United States v. Brown, 94
United States v. Gettysburg Electric Railway Co., 233
United States v. Jacoby, 401
United States v. Jones, 362-363
United States v. Lopez, 83, 415, 426
United States v. Lovett, 93
United States v. Morrison, 84, 415, 426
United States v. Nixon, 88
United States v. Richardson, 448
United States v. Virginia, 111
United States v. Windsor, 241, 287
unlawful assembly, 147-148
Unlawful Internet Gambling Act, 146
unreasonable searches and seizures, 23, 55, 102-103, 107, 113, 360-361,
366, 368, 467
USA PATRIOT Act, 448, 449-450
Utility Air v. Environmental Protection Agency, 471
uttering a forged instrument, 130, 140-141
vagrancy, 148
vagueness doctrine, 125-126, 148
vandalism, 142
vehicular homicide, 134
verdicts, 66, 341, 342, 343, 377, 385, 387, 388-389
directed, 341, 387
general, 343
special, 343
veto, legislative, 462-463
veto, presidential, 20, 36, 52, 86, 88
vicarious liability, 178, 185, 192-193
vice crimes, 144-147
victim impact evidence, 121, 395
victims’ rights, 63, 121, 169-170, 396-397, 403, 449, 450
Vietnam War, 87, 100, 101
Violent Crime Control and Law Enforcement Act of 1994, 392
Virginia Military Institute (VMI), 111, 441
Virginia v. Black, 125
visitation, right of, 293, 299
visitation rights of grandparents, 301-302
visitation rights of parents, 292, 300, 302
voir dire, 336, 337-338, 385
voluntary manslaughter, 152, 389
voting rights, 23, 111, 200, 435-436
Voting Rights Act of 1965, 111, 435-436
Wagner Act, 422-423
Wal-Mart v. Dukes, 333
Walkovszky v. Carlton, 271
War Powers Resolution, 87-88
war powers, presidential, 87-88
warrant requirement, Fourth Amendment, 103, 360-361, 364-365
exceptions to, 365-367
warranties, 258, 262, 263, 273-274
warrantless administrative searches, 467-468
warrantless arrests, 370
warrantless inspections, 467-468
warrantless searches, 360, 365-369, 448, 467
warranty deeds, 221, 222
Warren Court, 24, 80, 82, 368
Warren, Earl, 24, 46, 80, 82, 88, 97, 103, 109, 402, 461
Washington Post, 101
Washington v. Glucksberg, 135-136
Washington v. Texas, 107
Watergate hearings, 84
Watergate scandal, 59, 84, 87, 88, 89
Watergate Tapes Case, 88
Wayne, John, 217
weapons offenses, 148, 149-150
Weber, Max, 8
Webster v. Reproductive Health Services, 311
welfare programs, 423, 427-428
welfare reform, 428
white-collar crime, 143, 170
will, contest of, 239-240
William the Conqueror, 12
wills, 237-240
wiretapping, 103, 362, 450
Wisconsin v. Yoder, 124
Wolf v. Colorado, 107, 360-361
Woodford v. Ngo, 476
worker’s compensation, 199, 206, 209, 285
World War I, 90, 438, 448
World War II, 5, 87, 90, 93, 270, 427, 429, 438, 447, 448
worthless checks, 141
writ system, 14
wrongful act or omission, 127, 209
wrongful death acts, 196-197
wrongful death, tort of, 104, 194, 196-197, 210, 283, 340
wrongful life action, 197
Zenger, John Peter, 22
zoning rules, 150, 214, 227, 231-232, 236, 242, 476, 483