Gale Encyclopedia Of Everyday Law
Everyday Law
Gale Encyclopedia of
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Everyday Law
Americans with Disabilities Act
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VOLUME ONE
SHIRELLE PHELPS, EDITOR
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Gale Encyclopedia of Everyday Law
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LIBRARY OF CONGRESS CATALOG-IN-PUBLICATION DATA
Gale encyclopedia of everyday law / Shirelle Phelps, editor.
p. cm.
Includes bibliographical references and index.
ISBN 0-7876-5759-X (set : hardcover : alk.paper)—ISBN 0-7876-5760-3
(v. 1)—ISBN 0-7876-5761-1 (v. 2)
1. Law–United States–Popular works. I. Phelps, Shirelle.
KF387.G27 2003
349.73—dc21
2002008407
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .ix
How to Use This Book . . . . . . . . . . . . . . . . . .ix
Acknowledgments . . . . . . . . . . . . . . . . . . . . .xi
Overview of the American Legal System . . . . .xiii
Entries Arranged in Alphabetical Order Within
Broad Categories from: American with Disabil-
ities Act to Travel . . . . . . . . . . . . . . . .1-1156
Americans with Disabilities Act
Educational Accommodations . . . . . . . . . . . .1
Public Facility Accommodations . . . . . . . . . .5
Work Accommodations . . . . . . . . . . . . . . . .9
Attorneys
Attorney-Client Privilege . . . . . . . . . . . . . . .13
How to Find an Attorney . . . . . . . . . . . . . .19
Malpractice . . . . . . . . . . . . . . . . . . . . . . . .25
Automobiles
Accident Liability . . . . . . . . . . . . . . . . . . . .31
Buying a Car/Registration . . . . . . . . . . . . . .39
Driver’s License . . . . . . . . . . . . . . . . . . . . .45
Insurance . . . . . . . . . . . . . . . . . . . . . . . . .53
Leasing a Car . . . . . . . . . . . . . . . . . . . . . .59
Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . .65
Seat Belt Usage . . . . . . . . . . . . . . . . . . . . .71
Traffic Violations . . . . . . . . . . . . . . . . . . . .75
Banking
Banking and Lending Law . . . . . . . . . . . . .81
Banks, Saving & Loans, Credit Unions . . . . .89
FDIC . . . . . . . . . . . . . . . . . . . . . . . . . . . .95
Interest Rates . . . . . . . . . . . . . . . . . . . . . . .99
Business Law
Corporations . . . . . . . . . . . . . . . . . . . . . .103
Limited Liability Companies . . . . . . . . . . . .107
Partnerships . . . . . . . . . . . . . . . . . . . . . . .115
Shareholder Rights . . . . . . . . . . . . . . . . . .123
Civil Rights
Affirmative Action . . . . . . . . . . . . . . . . . .131
Age Discrimination . . . . . . . . . . . . . . . . . .139
Assembly . . . . . . . . . . . . . . . . . . . . . . . .143
Children’s Rights . . . . . . . . . . . . . . . . . . .151
Firearm Laws . . . . . . . . . . . . . . . . . . . . . .155
Free Speech/Freedom of Expression . . . . .163
Racial Discrimination . . . . . . . . . . . . . . . .169
Religious Freedom . . . . . . . . . . . . . . . . . .177
Sexual Discrimination and Orientation . . . .183
Voting Rights . . . . . . . . . . . . . . . . . . . . . .189
Consumer Issues
Advertising . . . . . . . . . . . . . . . . . . . . . . .197
Bankruptcy . . . . . . . . . . . . . . . . . . . . . . .203
Contracts . . . . . . . . . . . . . . . . . . . . . . . . .207
Credit/Truth-in Lending . . . . . . . . . . . . . .215
Deceptive Trade Practices . . . . . . . . . . . . .221
Defective Products . . . . . . . . . . . . . . . . . .229
Federal Trade Commission/Regulation . . . .233
Mail-Order Purchases/Telemarketing . . . . .237
Product Safety and Consumer Protection . .243
Purchases and Returns . . . . . . . . . . . . . . .249
Recalls by Manufacturers . . . . . . . . . . . . . .255
Warranties . . . . . . . . . . . . . . . . . . . . . . . .261
Courts and Procedures
Civil Procedure . . . . . . . . . . . . . . . . . . . .265
Criminal Procedure . . . . . . . . . . . . . . . . .273
Federal Courts and Jurisdictions . . . . . . . . .281
Juries . . . . . . . . . . . . . . . . . . . . . . . . . . .289
Small Claims Courts . . . . . . . . . . . . . . . . .301
State Courts and Procedures . . . . . . . . . . .307
TABLE OF CONTENTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW
v
Criminal Law
Appeals . . . . . . . . . . . . . . . . . . . . . . . . . .313
Crimes . . . . . . . . . . . . . . . . . . . . . . . . . .317
Death Penalty . . . . . . . . . . . . . . . . . . . . .323
Double Jeopardy . . . . . . . . . . . . . . . . . . .329
Evidence . . . . . . . . . . . . . . . . . . . . . . . . .337
Fifth Amendment . . . . . . . . . . . . . . . . . . .345
Insanity Defense . . . . . . . . . . . . . . . . . . .353
Juveniles . . . . . . . . . . . . . . . . . . . . . . . . .359
Plea Bargaining . . . . . . . . . . . . . . . . . . . .365
Probation and Parole . . . . . . . . . . . . . . . .369
Right to Counsel . . . . . . . . . . . . . . . . . . .375
Search and Seizure . . . . . . . . . . . . . . . . . .381
Sentencing and Sentencing Guidelines . . . .389
Dispute Resolution Alternatives
Arbitration . . . . . . . . . . . . . . . . . . . . . . . .395
Mediation . . . . . . . . . . . . . . . . . . . . . . . .403
Mini-Trials . . . . . . . . . . . . . . . . . . . . . . . .411
Negotiation . . . . . . . . . . . . . . . . . . . . . . .417
Education
Administering Medicine . . . . . . . . . . . . . .423
Athletics . . . . . . . . . . . . . . . . . . . . . . . . .429
Bilingualism . . . . . . . . . . . . . . . . . . . . . .435
Codes of Conduct . . . . . . . . . . . . . . . . . .441
Competency Testing . . . . . . . . . . . . . . . . .445
Compulsory Education . . . . . . . . . . . . . . .451
Curriculum . . . . . . . . . . . . . . . . . . . . . . .459
Desegregation/Busing . . . . . . . . . . . . . . . .465
Discipline and Punishment . . . . . . . . . . . .471
Drug Testing . . . . . . . . . . . . . . . . . . . . . .477
Finance/Funding . . . . . . . . . . . . . . . . . . .483
School Prayer/Pledge of Allegiance . . . . . .487
Special Education/Disability Access . . . . . .493
Student’s Rights/Free Speech . . . . . . . . . . .501
Teacher’s Unions/Collective Bargaining . . .507
Teacher’s Rights . . . . . . . . . . . . . . . . . . . .513
Truancy . . . . . . . . . . . . . . . . . . . . . . . . .521
Types of Schools . . . . . . . . . . . . . . . . . . .527
Violence and Weapons . . . . . . . . . . . . . . .533
Estate Planning
Estate and Gift Taxes . . . . . . . . . . . . . . . .539
Guardianships and Conservatorships . . . . .543
Intestacy . . . . . . . . . . . . . . . . . . . . . . . . .549
Life Insurance . . . . . . . . . . . . . . . . . . . . .555
Power of Attorney . . . . . . . . . . . . . . . . . .559
Probate and Executors . . . . . . . . . . . . . . .565
Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . .569
Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . .575
Family Law
Adoption . . . . . . . . . . . . . . . . . . . . . . . . .583
Child Abuse/Child Safety/Discipline . . . . . .587
Child Support/Custody . . . . . . . . . . . . . . .591
Cohabitation . . . . . . . . . . . . . . . . . . . . . .599
Divorce/Separation/Annulment . . . . . . . . .607
Domestic Violence . . . . . . . . . . . . . . . . . .619
Emancipation . . . . . . . . . . . . . . . . . . . . . .625
Family Planning/Abortion/Birth Control . . .629
Foster Care . . . . . . . . . . . . . . . . . . . . . . .633
Gay Couples . . . . . . . . . . . . . . . . . . . . . .637
Grandparent’s Rights . . . . . . . . . . . . . . . .641
Guardianship . . . . . . . . . . . . . . . . . . . . . .649
Marriage/Marriage Age . . . . . . . . . . . . . . .653
Parent Liability Child’s Act . . . . . . . . . . . . .659
Prenuptial Agreements . . . . . . . . . . . . . . .663
Unmarried Parents . . . . . . . . . . . . . . . . . .667
First Amendment Law
Libel and Slander . . . . . . . . . . . . . . . . . . .671
Healthcare
Doctor-Patient Confidentiality . . . . . . . . . .675
Informed Consent . . . . . . . . . . . . . . . . . .683
Insurance . . . . . . . . . . . . . . . . . . . . . . . .687
Managed Care/HMOs . . . . . . . . . . . . . . . .693
Medicaid . . . . . . . . . . . . . . . . . . . . . . . . .701
Medical Malpractice . . . . . . . . . . . . . . . . .709
Medical Records . . . . . . . . . . . . . . . . . . . .717
Organ Donation . . . . . . . . . . . . . . . . . . . .723
Patient’s Rights . . . . . . . . . . . . . . . . . . . . .729
Treatment of Minors . . . . . . . . . . . . . . . . .737
Treatment Without Insurance . . . . . . . . . . .741
Immigration
Asylum . . . . . . . . . . . . . . . . . . . . . . . . . .745
Deportation . . . . . . . . . . . . . . . . . . . . . . .749
Dual Citizenship . . . . . . . . . . . . . . . . . . .753
Eligibility for Government Services . . . . . . .757
Immigration and Naturalization Service(INS) 765
Residency/Green Cards/Naturalization . . . .769
Intellectual Property
Copyright . . . . . . . . . . . . . . . . . . . . . . . .773
Patents . . . . . . . . . . . . . . . . . . . . . . . . . .777
Trademarks . . . . . . . . . . . . . . . . . . . . . . .783
Unfair Competition . . . . . . . . . . . . . . . . .789
Internet
Advertising . . . . . . . . . . . . . . . . . . . . . . .795
Consumer Rights and Protection . . . . . . . .801
Free Speech . . . . . . . . . . . . . . . . . . . . . .805
Internet Crime . . . . . . . . . . . . . . . . . . . . .811
Internet Filters in Schools and Libraries . . .819
Internet Privacy . . . . . . . . . . . . . . . . . . . .825
Internet Regulation . . . . . . . . . . . . . . . . . .833
Online Business . . . . . . . . . . . . . . . . . . . .841
Pornography . . . . . . . . . . . . . . . . . . . . . .849
vi
GALE ENCYCLOPEDIA OF EVERYDAY LAW
TABLE OF CONTENTS
Labor Law
Benefits . . . . . . . . . . . . . . . . . . . . . . . . . .855
Discrimination . . . . . . . . . . . . . . . . . . . . .859
Drug Testing . . . . . . . . . . . . . . . . . . . . . .865
Employee’s Rights/EEOC . . . . . . . . . . . . . .871
Family and Medical Leave Act (FMLA) . . . .877
Independent Contractors/Freelancers . . . . .881
Labor Unions/Strikes . . . . . . . . . . . . . . . .885
Occupational Health and Safety . . . . . . . . .891
Privacy . . . . . . . . . . . . . . . . . . . . . . . . . .897
Sexual Harassment . . . . . . . . . . . . . . . . . .903
Unemployment Insurance/Compensation . .909
Wage and Hour Laws . . . . . . . . . . . . . . . .915
Whistleblowers . . . . . . . . . . . . . . . . . . . .919
Worker’s Compensation . . . . . . . . . . . . . .925
Real Estate
Boundary/Property/Title Disputes . . . . . . .931
Buying and Selling/Mortgages . . . . . . . . . .935
Condominiums/Co-ops . . . . . . . . . . . . . . .941
Contractors/Liens . . . . . . . . . . . . . . . . . . .947
Easements . . . . . . . . . . . . . . . . . . . . . . . .955
Foreclosure . . . . . . . . . . . . . . . . . . . . . . .961
Homeowner’s Liability/Safety . . . . . . . . . . .965
Housing Discrimination . . . . . . . . . . . . . .969
Insurance (Homeowners and Renters) . . . .975
Landlord/Tenant Rights . . . . . . . . . . . . . . .983
Neighbor Relations . . . . . . . . . . . . . . . . . .995
Renters’ Liability . . . . . . . . . . . . . . . . . . . .999
Timeshares . . . . . . . . . . . . . . . . . . . . . .1003
Trespassing . . . . . . . . . . . . . . . . . . . . . .1007
Zoning . . . . . . . . . . . . . . . . . . . . . . . . .1011
Retirement and Aging
Assisted Living Facilities . . . . . . . . . . . . .1015
Elder Abuse . . . . . . . . . . . . . . . . . . . . . .1023
Healthcare/Medicare . . . . . . . . . . . . . . . .1027
Nursing Homes . . . . . . . . . . . . . . . . . . .1033
Retirement Pension Plans . . . . . . . . . . . .1041
Social Security . . . . . . . . . . . . . . . . . . . .1045
Taxes
Capital Gains . . . . . . . . . . . . . . . . . . . . .1053
Corporate Tax . . . . . . . . . . . . . . . . . . . .1057
Income Taxes . . . . . . . . . . . . . . . . . . . .1063
IRS Audits . . . . . . . . . . . . . . . . . . . . . . .1069
Property Taxes . . . . . . . . . . . . . . . . . . . .1077
Sales Taxes . . . . . . . . . . . . . . . . . . . . . .1083
Self Employment Taxes . . . . . . . . . . . . . .1089
Small Business Tax . . . . . . . . . . . . . . . . .1093
Tax Evasion . . . . . . . . . . . . . . . . . . . . . .1099
Telecommunications
FCC Regulations . . . . . . . . . . . . . . . . . . .1105
Satellite and Cable . . . . . . . . . . . . . . . . .1111
Telephone . . . . . . . . . . . . . . . . . . . . . . .1117
Television . . . . . . . . . . . . . . . . . . . . . . .1121
Travel
Children Travelling Alone . . . . . . . . . . . .1127
Hotel Liability . . . . . . . . . . . . . . . . . . . .1131
International Travel . . . . . . . . . . . . . . . . .1139
Passports and Visas . . . . . . . . . . . . . . . .1147
Safety . . . . . . . . . . . . . . . . . . . . . . . . . .1151
State and Federal Agency Contacts . . . . . .1157
Glossary . . . . . . . . . . . . . . . . . . . . . . . . . .1161
General Index . . . . . . . . . . . . . . . . . . . . .1187
GALE ENCYCLOPEDIA OF EVERYDAY LAW
vii
TABLE OF CONTENTS
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The Gale Encyclopedia of Everyday Law is a two-
volume encyclopedia of practical information on
laws and issues affecting people’s everyday lives.
Readers will turn to this work for help in answer-
ing questions such as, “What is involved in estate
planning?” “Do I have any recourse to noisy neigh-
bors?” and “What are the consequences of an
expired visa?” This Encyclopedia aims to educate
people about their rights under the law, although it
is not intended as a self-help or ‘do-it-yourself’
legal resource. It seeks to fill the niche between
legal texts focusing on the theory and history
behind the law and shallower, more practical
guides to dealing with the law.
This encyclopedia, written for the layperson, is
arranged alphabetically by broad subject categories
and presents in-depth treatments of topics such as
consumer issues, education, family, immigration,
real estate, and retirement. Individual entries are
organized in alphabetical order within these broad
subject categories, and include information on state
and local laws, as well as federal laws. In entries
where it is not possible to include state and local
information, references direct the reader to
resources for further research.
The work contains approximately 200 articles of
2,000-5,000 words each, organized within 24 broad
subject categories. Each article begins with a brief
description of the issue’s historical background,
covering important statutes and cases. The body of
the article is divided into subsections profiling the
various U.S. federal laws and regulations concern-
ing the topic. A third section details variations of
the laws and regulations from state to state. Each
article closes with a comprehensive bibliography,
covering print resources and web sites, and a list of
relevant national and state organizations and agen-
cies.
Due to the constantly shifting landscape of the
Internet, websites acknowledged by authors in this
publication may no longer operate, or may operate
at a different URL. The editors are not responsible
for obsolete or changed URLs.
How to Use This Book
This first edition of the Gale Encyclopedia of
Everyday Law has been designed with ready refer-
ence in mind.
• Entries are arranged alphabetically with-
in 24 broad categories. All entries are
spelled-out in the Table of Contents.
• Boldfaced terms direct readers to glossary
terms, which can be found at the back of the
second volume.
• A comprehensible Overview of the
American Legal System details civil and
criminal procedure; appeals; small claims
court; in pro per representation; differences
between local codes and state codes; and the
difference between statutes and regulations.
• A list of State and Federal Agency Contacts
gives websites that lead the user to various
state and federal agencies and organizations,
which can be found at the back of the second
volume.
•A General Index at the back of the second
volume, covers subject terms from throughout
the encyclopedia, case and statute titles, per-
sonal names, and geographic locations.
INTRODUCTION
GALE ENCYCLOPEDIA OF EVERYDAY LAW
ix
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Advisory Board
In compiling this edition, we have been fortu-
nate in being able to call upon the following peo-
ple, our panel of advisors who contributed to the
accuracy of the information in this premiere edition
of the Gale Encyclopedia of Everyday Law. To them
we would like to express sincere appreciation:
Glen-Peter Ahlers, Sr.
Associate Dean of Information Services
Barry University
Dwayne O. Andreas School of Law
Orlando, FL
Susana Carmargo-Pohl
Head of Reference & Electronic Services
Rutgers Law Library
Rutgers University Law School
Newark, NJ
Matthew C. Cordon
Assistant Professor of Law & Reference Librarian
Baylor University Law School
Waco, TX
Mary Alice Durphy
Legislative Assistant
Baker & Hostetler LLP
Washington, DC
Mark D. Engsberg
International Law Librarian
Lillian Goldman Law Library
Yale Law School
New Haven, CT
Jim Heller
Director of the Law Library and
Professor of Law
College of William & Mary
Williamsburg, VA
Susanna Marlow
Former Head of Reference Services
Ohio State University
Moritz Law Library
Columbus, OH
Matt Morrison
Reference/Electronic Information Services
Librarian
University of Kentucky
College of Law Library
Lexington, KY
Eric L. Welsh
Head of Research Services
Regent University Law Library
Virginia Beach, VA
Contributors
Lauren Barrow, James Cahoy, Matthew C.
Cordon, Richard Cretan, J. Alicia Elster, Mark D.
Engsberg, Lauri Harding, Kristy Holtfreter, Sunwoo
Kahng, Anne Kevlin, Frances Lynch, George A.
Milite, Melodie Monahan, Joe Pascarella, Monica L.
P. Robbers, Thomas W. Scholl, III, Scott Slick,
Sherrie Voss Matthews, Eric L. Welsh
ACKNOWLEDGMENTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW
xi
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OVERVIEW OF THE AMERICAN LEGAL
SYSTEM
FRAMEWORK OF GOVERNMENT IN THE
UNITED STATES
Basis of the American Legal System
The legal system of the United States is adminis-
tered and carried on by the official branches of gov-
ernment and many other authorities acting within
their official lawmaking capacity. The original basis of
the law in this country is the United States Constitu-
tion, which lays the framework under which each of
the different branches of government operates. The
Constitution also guarantees the basic civil rights of
the citizens of the United States. All authority of the
federal government originates from the Constitu-
tion, and the Constitution serves as the supreme law
of the land. The Constitution grants to the federal
government certain enumerated powers, and grants
to the states any power not specifically delegated to
a branch of the federal government. Under this sys-
tem, states retain significant authority and autono-
my. The constitutions in each of the fifty states con-
tain many similar provisions to those in the U.S.
Constitution in terms of the basic structure of gov-
ernment. Under the federal and state constitutions,
the United States legal system consists of a system of
powers separated among branches of government,
with a system of checks and balances among these
branches.
Legislative Branches
The legislative branch is the primary law-making
body among the three branches, although authority
emanating from the other branches also constitutes
law. The legislative branch consists of Congress, and
is subdivided into two lower houses, the House of
Representatives and the Senate. In addition to the
powers granted to Congress, the Constitution sets
forth specific duties of both the House and the Sen-
ate. Each Congress meets for two sessions, with each
session lasting two years. For example, the 107th
Congress met in its first session in 2001, and meets
in its second session in 2002. State legislatures are
structured similarly, with the vast majority of these
legislatures consisting of two lower houses.
Judicial Branches
The judicial branch in the federal system consists
of three levels of courts, with the Supreme Court
serving as the highest court in the land. The interme-
diate courts in the federal system are the thirteen
Courts of Appeals. The United States is divided by
circuits, with each circuit consisting of a number of
states. The Fifth Circuit, for example, consists of
Texas, Mississippi, and Louisiana. Each Court of Ap-
peals has jurisdiction to decide federal cases in its re-
spective circuit. The trial level in the federal judicial
system consists of the District Courts. Each state con-
tains at least one district, with larger states contain-
ing as many as four districts. Congress has also estab-
lished a number of lower federal courts with
specialized jurisdiction, such as the bankruptcy
courts and the United States Tax Court.
Most state court systems are similar to that of the
federal system, with a three-tiered system consisting
of trial courts, appellate courts, and a highest court,
which is also referred to as a ‘‘court of last resort.’’
The names of the courts are similar from state to
state, such as superior court, court of appeals, and
supreme court. However, some states do not follow
this structure. For example, in New York, the trial
level court is the Supreme Court, while the court of
last resort is the Court of Appeals. Texas, as another
example, has two highest courts— the Supreme
GALE ENCYCLOPEDIA OF EVERYDAY LAW xiii
Court and the Court of Criminal Appeals. In addition
to the trial level courts, small claims courts or other
county courts typically hear small claims, such as
those seeking recovery of less than $1000.
Executive Branches
The federal Constitution vests executive power in
the President of the United States. The President also
serves as the Commander in Chief of the Armed
Forces and has the power to make treaties with other
nations, with the advice and consent of the Senate.
Besides those powers enumerated in Article II of the
Constitution, much of the power of the executive
branch stems from the executive departments, such
as the Department of the Treasury and the Depart-
ment of Justice. Congress has the constitutional au-
thority to delegate power to administrative agencies,
and many of these agencies fall under the executive
branch and are known as executive agencies. Con-
gress also has the authority to create agencies inde-
pendent of the other branches of government, called
independent agencies. Authority emanating from ex-
ecutive and independent agencies is law, and it is
similar in many ways to legislation created by legisla-
tures or opinions issued by courts. State executive
branches and administrative agencies are similar to
those of their federal counterparts.
Constitutional Authority
Interpretation of the Constitution
The federal Constitution is not a particularly
lengthy document, and does not provide many an-
swers to specific questions of law. It has, instead,
been the subject of extensive interpretation since its
original ratification. In the famous 1803 case of Mar-
bury v. Madison, Chief Justice John Marshall wrote
an opinion of the Supreme Court, which stated that
the judicial branch was the appropriate body for in-
terpreting the Constitution and determining the con-
stitutionality of federal or state legislation. Accord-
ingly, determining the extent of power among the
three branches of government, or determining the
rights of the citizens of the United States, almost al-
ways requires an evaluation of federal cases, in addi-
tion to a reading of the actual text of the Constitu-
tion.
Powers of Congress
Most of the enumerated congressional powers are
contained in section 8 of Article I of the Constitution.
Many courts have been asked to review congressio-
nal statutes to determine whether Congress had the
constitutional authority to enact such statutes.
Among these powers, the power of Congress ‘‘to reg-
ulate [c]ommerce among the several [s]tates’’ has
been the subject of the most litigation and outside
debate. A number of cases during the New Deal era
under President Franklin D. Roosevelt considered
the breadth of this provision, which is referred to as
the Commerce Clause. After the Supreme Court de-
termined that many of these statutes were unconsti-
tutional, Roosevelt, after a landslide election in 1936,
threatened to add additional justices to the court, in
order to provide more support for his position with
respect to the pieces of legislation passed during the
New Deal era (the reason he gave to Congress at the
time was that many of the justices were over the age
of seventy, and could no longer perform their job
function, but the general understanding was that he
wanted justices that would approve the New Deal
legislation as constitutional). The threat of this so-
called ‘‘Court-packing’’ plan succeeded, and the
Commerce Clause has been construed very broadly
since then. Other powers enumerated in Article I are
generally construed broadly as well.
Civil Rights Provisions in the Constitutions
The main text of the Constitution does not pro-
vide rights to the citizens of the United States. These
rights are generally provided in the many amend-
ments to the Constitution. The first ten amend-
ments, all ratified in 1791, are called the ‘‘Bill of
Rights,’’ and confer many of the cherished and fun-
damental rights to the citizens of the United States.
Among the rights included in the Bill of Rights are
the freedoms of speech and religion (First Amend-
ment); right to keep and bear arms (Second Amend-
ment); right to be free from unreasonable searches
and seizures (Fourth Amendment); right to be free
from being compelled to testify against one’s self in
a criminal trial (Fifth Amendment); right to due pro-
cess of law (Fifth Amendment); right to a jury trial
(Sixth Amendment); and right to be free from cruel
and unusual punishment (Eighth Amendment).
Between 1791 and 1865, no constitutional amend-
ments were ratified that provided civil rights to citi-
zens. However, at the conclusion of the Civil War and
during the reconstruction period following the war,
three major amendments were added to the Consti-
tution. The first was the Thirteenth Amendment, rati-
fied in 1865, which finally abolished slavery and in-
voluntary servitude in the United States. The
Fourteenth Amendment, ratified in 1868, provided
some of the most significant rights to citizens, includ-
ing the guarantee of equal protection of the laws and
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
xiv GALE ENCYCLOPEDIA OF EVERYDAY LAW
prohibited denial of life, liberty, or property without
due process of law. The Fifteenth Amendment, rati-
fied in 1870, provided that the right to vote could not
be abridged on account of race, color, or previous
condition of servitude. Fifty years later, women were
guaranteed the right to vote with the ratification of
the Nineteenth Amendment in 1920.
Application of Constitutional Amendments
Like other constitutional provisions, the judicial
branch is the appropriate body to interpret the Bill
of Rights and other amendments to the Constitution.
The plain language of the amendments can cause
some confusion, since some, by their own terms,
they apply specifically to Congress, while other apply
specifically to states. For example, the First Amend-
ment begins, ‘‘Congress shall make no law respect-
ing an establishment of religion . . .’’ Similarly, the
Fourteenth Amendment contains a provision that
states, ‘‘No State shall make or enforce any law which
shall abridge the privileges and immunities of the cit-
izens of the United States . . .’’ Modern courts have
resolved some of these questions by ruling that the
Due Process Clauses of the Fifth and Fourteenth
Amendments incorporate these provisions, so many
provisions apply to both the federal and state gov-
ernments, despite the language in the Constitution.
State Constitutions
Many state constitutions are structured similarly
to the federal Constitution, except that most are
more detailed than the federal Constitution. Most
citizens are guaranteed basic civil rights by both the
federal Constitution and their relevant state constitu-
tions. For example, it is common for state constitu-
tions to include provisions guaranteeing freedom of
speech or equal protection, and most are phrased
similarly to the provisions in the First and Fourteenth
Amendments. Since the federal Constitution is the
supreme law of the land, any rights provided in it are
guaranteed to all citizens and cannot be lost because
a state constitution’s provisions conflict with the cor-
responding provision in the federal Constitution. A
state may provide greater rights to citizens than
those provided in a federal counterpart, but may not
remove rights guaranteed under the federal doc-
trine. Section 10 of Article I of the Constitution also
prohibits states from making certain laws or conduct-
ing certain acts, such as passing an ex post facto law
or coining money.
International Treaties
Authority of Treaties
Article VI of the Constitution provides, ‘‘This Con-
stitution, 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 Untied States, shall be the supreme Law of the
Land.’’ An international treaty is generally considered
to be on the same footing as a piece of legislation.
If a treaty and a federal statute conflict, the one en-
acted at a later date, or the one that more specifically
governs a particular circumstance, will typically gov-
ern. State legislation may not contradict provisions
contained in a treaty. Similarly, states are forbidden
from entering into treaties under the provisions in
Article I, Section 10.
Creation of Treaties and Other
International Agreements
The power to enter into treaties is vested in the
President, though the executive must act with the ad-
vice and consent of the Senate, and receive the con-
currence of two-thirds of the Senate before a treaty
is ratified. The various Presidents have also entered
into executive agreements with foreign nations when
the President has not been able to receive approval
from two-thirds of the Senate, or has not sought ap-
proval from the Senate. While nothing in the Consti-
tution permits or forbids this practice, executives
have entered into thousands of such agreements.
Federal and State Legislation
Federal Legislative Process
Members of Congress have the exclusive authority
to introduce legislation to the floor of either the
House of Representatives or Senate. Legislation is in-
troduced to Congress in the form of bills. Most bills
can originate either in the Senate or in the House,
with the exception of bills to raise revenue, which
must originate in the House under Article I of the
Constitution. When a bill is introduced, it is designat-
ed with a bill number, and these bill numbers run se-
quentially through two sessions of Congress. For ex-
ample, the fifty-sixth bill introduced in the House
during the 108th Congress will be designated as
‘‘H.R. 56’’ (‘‘H.R.’’ is an abbreviation for House of
Representatives). Likewise, the twelfth bill intro-
duced in the Senate during the same Congress will
be designated ‘‘S. 12.’’ It is not uncommon that bills
are introduced in both the House and the Senate si-
multaneously that address the same subject matter.
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
GALE ENCYCLOPEDIA OF EVERYDAY LAW xv
These bills are referred to as ‘‘companion bills,’’ and
the actual law that is passed often contains compo-
nents from both the enacted bill and its companion
bill. Thousands of bills are introduced in the House
and Senate each session, and a relatively small pro-
portion is actually passed into law.
After a bill has been introduced, it is sent to one
or more appropriate committees in the House or
Senate. The committee or committees analyze the
provisions of the bill, including the reasoning for
such legislation and the expected effect of the bill if
it were enacted into law. A committee conducts hear-
ings, where it hears testimony from experts and
other parties that can provide information relevant
to the subject matter covered by a bill. A committee
may also order the preparation of an in-depth study
(called a ‘‘committee print’’) that provides additional
background information, often in the form of statis-
tics and statistical analysis. A number of additional
documents may also be produced during the com-
mittee stage, and practically every action is docu-
mented, including the production of written tran-
scripts of committee hearings. A committee may
amend or rewrite a bill before it approves it, which
generally extends the length of time that a bill re-
mains at the committee stage. The vast majority of
bills, in fact, never leave the committee stage, and
these bills are commonly said to have ‘‘died in com-
mittee.’’
When a committee completes its consideration of
a bill, it reports the bill back to the floor of the House
or Senate. A committee ordinarily accompanies the
bill with a report that summarizes and analyzes each
bill’s provisions, and provides recommendations re-
garding the passage of the bill. Reports, as well as
other documents, are designated with unique num-
bers and are made available to the public. An exam-
ple of a report number is ‘‘H.R. Rep. No. 108-15,’’
which indicates that it is the fifteenth report submit-
ted to the House of Representatives in the 108th
Congress.
Members of the houses of Congress debate the
bills on the floor of the relevant house. These de-
bates are transcribed, and the text of the transcrip-
tion is routinely available to the public. During this
period, the relevant chamber may amend the bill.
Once the debates and other activities are completed,
the chamber votes to pass the bill. If the chamber ap-
proves the bill, it is sent to the other chamber, and
the entire process is repeated. The version of the bill
sent to the other chamber of Congress is called the
‘‘engrossed’’ version of the bill. The other chamber
must pass this version exactly as it appears in the en-
grossed version, or else the bill, assuming the second
chamber passes it, is sent back to the original cham-
ber for future consideration. If the House and Senate
cannot agree to a single version of a bill, a confer-
ence, or joint, committee may be convened, where
members of both chambers may compromise to
complete a version of a bill acceptable to both cham-
bers. If this conference committee is successful in
doing so, the bill is returned to the House and Senate
for another vote.
Once a bill passes both the House and the Senate,
it is sent to the President as an ‘‘enrolled’’ bill. The
President may sign the bill and make it law. If the
President does not sign the bill, and Congress is still
in session, the bill becomes law automatically after
ten days. If the President does not sign the bill, and
Congress adjourns within ten days, the bill does not
become law. The President may also reject the bill by
vetoing it. Congress may override this veto with a
two-thirds majority vote in both chambers.
Types of Laws Passed by Congress
Laws that apply to and are binding on the general
citizenry are called public laws. Each public law is
designated with a public law number, and the num-
bering system is similar to that of reports and other
documents described above. For example, Public
Law Number 108-1 represents that this is the first
public law passed in the 108th Congress. Congress
may also pass laws that apply only to individual citi-
zens or small classes of individuals. These laws are
called private laws, and are usually passed in the con-
text of immigration and naturalization. Private laws
are numbered identically to public laws, such as, for
example, Private Law Number 108-2, which is the sec-
ond private law passed in the 108th Congress.
Congress also passes various types of resolutions,
some of which do not constitute law and do not con-
tain binding provisions equivalent to public laws. A
single chamber of Congress may pass simple resolu-
tions, which relate to the operations of that chamber
or express the opinion of that chamber on policy is-
sues. Both chambers may pass a concurrent resolu-
tion, which relate to the entire operation of Con-
gress, or the express opinion of the entire Congress.
Neither simple nor concurrent resolutions constitute
law, and are not submitted to the President for ap-
proval. Joint resolutions, on the other hand, have the
same binding effect as bills, and must be submitted
to the President for final approval. Appropriations
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
xvi GALE ENCYCLOPEDIA OF EVERYDAY LAW
and similar measures often enter Congress as joint
resolutions. Some actions, particularly the introduc-
tion of a constitutional amendment, require the use
of a joint resolution, and many of these actions do
not require presidential approval.
Publication of Federal Legislation
Practically all documents produced by Congress
during the legislative process are published by the
United States Government Printing Office and made
available to the public. Most of items produced since
1995 are now also available on the Internet in elec-
tronic formats. Legislation first appears in the form
of a slip law, named as such because the Government
Printing Office prints these on unbound slips of
paper. At the conclusion of a session of Congress, the
laws passed during that session are compiled and ap-
pear in the form of session laws, organized in chro-
nological order. The official source for federal ses-
sion laws is the United States Statutes at Large.
Most legislation in force in the United States is or-
ganized into a subject matter arrangement and pub-
lished in the United States Code. A statute contained
in the United States Code is called a codified statute.
The U.S. Code consists of fifty titles, with each title
representing a certain area of law. For example, Title
17 contains the copyright laws of the United States;
Title 26 contains the Internal Revenue Code; and
Title 29 contains most of the labor laws of the United
States.
Relationship Between Federal and State
Legislation
Federal legislation is superior to state legislation
under the provisions of Article VI of the U.S. Consti-
tution. Thus, the courts will resolve any potential
conflicts between a state statute and a federal statute
by enforcing the federal statute. Federal superiority,
however, does not mean that states are forbidden
from enacting legislation covering the same subject
matter as a federal statute; it is common for both fed-
eral and state legislation to govern similar areas of
law. This is true in such areas as securities regulation,
consumer protection, and labor law. Federal labor
relations laws, for example, apply specifically to pri-
vate employers, but do not apply to public employ-
ers. Labor relations between public employers and
their employees are governed generally by state
labor relations laws.
If Congress wants an area of law to be governed
solely by federal legislation, Congress may include a
provision that such legislation preempts any state
law related to the subject matter covered by the fed-
eral statute. Congress may preempt state regulation
expressly through specific statutory language, or by
implication based on the structure and purpose be-
hind a federal statute. Examples of legislation that
contain preemption provisions are the Employment
Retirement Income Security Act of 1974, the Com-
prehensive Environmental Response, Compensation
and Liability Act, and the Toxic Substance Control
Act.
The Tenth Amendment to the federal Constitu-
tion reserves any power not delegated to the federal
government to the states, or to the people. However,
there have been questions among the courts and
scholars regarding the extent of this amendment,
and it has not generally been construed to grant any
special powers to the states through its enactment.
Rather, it is a clause that reserves power to the states
where Congress has not acted, subject to some limi-
tations.
Legislative Process in State Legislatures
Most state legislatures follow similar processes as
Congress. Each state legislature, with the exception
of Nebraska, consists of two chambers. Most legisla-
tures meet in regular session annually, though some
meet biannually with special called sessions held pe-
riodically. In many states, the process of introducing
a bill is streamlined, where only one chamber may in-
troduce certain types of bills. Several states also per-
mit citizens to initiate legislation, which is not possi-
ble in Congress. Some states allow citizens to vote
directly on a proposed piece of legislation. Other
states contain provisions that all citizens, once they
have received a requisite number of signatures, may
force the legislature to consider and vote on a partic-
ular issue.
Publication of State Legislation
Most states publish enacted legislation in a similar
manner as the publication of federal legislation. Laws
passed during each session of a respective legislature
are compiled as session laws, and laws currently in
force are compiled in a subject matter arrangement.
In most states, laws in force are compiled according
to a numbering system similar to the United States
Code, with title or chapter numbers representing the
subject matter of the statute. Other states, most no-
tably California and Texas, have created codes that
are named to represent the subject matter of the
statues contained in them. For example, the Califor-
nia Family Code contains the family law statutes of
that state; similarly, the Texas Finance Code contains
the statutes governing many of the financial opera-
tions in that state.
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
GALE ENCYCLOPEDIA OF EVERYDAY LAW xvii
Bills introduced in every legislature during a cur-
rent session are now available on the various legisla-
tures’ Internet sites, as are the current statutes. How-
ever, very little documentation from the legislative
process is published in a fashion to make it readily
available to interested members of the public. Legal
researchers interested in such information must
often travel to their respective state capitol to obtain
this information.
Interpretation of Legislation
The language of a statute may be somewhat am-
biguous regarding their application, and the courts
have the responsibility to interpret or construe the
language to determine the proper application of the
statute. Courts have developed ‘‘canons of construc-
tion’’ to aid in this interpretation. The most basic
form of statutory construction is consideration of the
text and plain meaning of a statute. This consider-
ation includes the process of defining the terms and
phrases used in statute, including the use of a dictio-
nary to derive the common meaning of a term.
Courts will also consider the application of the stat-
ute in the context of the broader statutory scheme,
which can often indicate what the purpose of the
statute was when the statute was enacted.
If the plain meaning of a statute cannot be derived
from the statute or statutory scheme, courts may
look to the history of the legislation to determine the
intent of the legislature when it enacted the statute.
It is possible that Congress or a state legislature spe-
cifically addressed a concern during the legislative
process, and members of the legislature may have
made statements indicating how the legislature in-
tended for the statute to apply in a particular circum-
stance. Locating this information requires a legal re-
searcher to locate documentation prepared during
the legislative process, in a process called ‘‘compil-
ing’’ a legislative history.
Substantive vs. Procedural Laws
Many of the laws passed by legislatures are consid-
ered ‘‘substantive’’ laws, because they create, define,
and regulate legal rights and obligations. If an indi-
vidual has been harmed and wants to bring litigation
against the person or group that harmed him or her,
substantive statutes often provide the law that gov-
erns that situation, and also include provisions re-
garding the appropriate damages that can be award-
ed to the plaintiff should the plaintiff successfully
prove his or her case.
By comparison, procedural laws are those that set
forth the rules used to enforce substantive laws.
These laws may dictate the steps that a litigant must
take to bring a suit to court, or may dictate the appro-
priate courts where a case may be brought. Some
statutes, called statutes of limitations, also limit the
amount of time in which a particular case may be
brought. Procedural laws are as important as sub-
stantive laws in many respects, because a party with
a valid claim may nevertheless lose a case if the prop-
er procedures are not followed, or if the claim is not
filed in the time required under a statute of limita-
tions.
Criminal Law vs. Civil Law
Criminal laws are those designed to punish pri-
vate parties for violating the provisions contained in
these laws. Violations of these laws are crimes against
society, and are brought as criminal actions against
the alleged offenders by state or federal attorneys
acting on behalf of the people. All citizens of the
United States are guaranteed rights in criminal inves-
tigations and criminal trials, and law enforcement of-
ficers and prosecutors must follow certain proce-
dures in order to protect these rights. For this
reason, criminal procedure differs significantly from
the procedures for bringing a civil case to court.
Among the most fundamental rights is that all ac-
cused individuals are presumed innocent until the
state proves them guilty beyond a reasonable doubt.
This places the burden of proof in a criminal action
on the state, rather than on the defendant. Title 18
of the U.S. Code contains most of the federal crimi-
nal laws, while state penal codes generally contain
the state criminal laws.
The term ‘‘civil law’’ has different meanings in two
distinct contexts. First, it refers to a system of law
that differs from the common law system employed
by the United States. This is discussed below. Sec-
ond, it refers to a type of law that defines rights be-
tween private parties, and, as such, differs from crim-
inal law. Civil laws are applicable in such situations
as when two parties enter into a contract with one
another, or when one party causes physical injury to
another party. The procedures that must be followed
in a civil court case are generally less stringent than
those in a criminal case. Some civil laws include pro-
visions designed to punish wrongdoers, usually in
the form of punitive, or exemplary, damages that are
paid to the other party.
Municipal Ordinances and Other Local Laws
Local government entities are generally created by
the various states, and are typically referred to as mu-
nicipalities. The powers of a municipality are limited
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
xviii GALE ENCYCLOPEDIA OF EVERYDAY LAW
to those granted to it by the state, usually defined in
the municipal charter that created the municipality.
Charters are somewhat analogous to state constitu-
tions, and usually were created by vote of the voters
in the municipality. Local governing bodies may in-
clude a city council, county commission, board of su-
pervisors, etc., and these bodies enact ordinances
that apply specifically to the locality governed by
these bodies. Ordinances are similar to state legisla-
tive acts in their function. In many municipalities, or-
dinances are organized into a subject matter arrange-
ment and produced as municipal codes.
Local laws often govern everyday situations more
so than many state or federal laws. These laws in-
clude many provisions for public safety, raise reve-
nue through the creation and implementation of
sales and other local taxes, and govern the zoning of
the municipality. Decisions regarding education are
also generally made through local boards of educa-
tion, though these boards are entities distinct from
the municipal government. Local laws cannot contra-
dict federal or state law, including statutory or consti-
tutional provisions.
Cases and Case Law in the Judicial
Systems of the United States
Adversarial System
The judicial system in the United States is prem-
ised largely on the resolution of disputes between
adversaries after evidence is presented on both sides
to a judge or jury during a trial. Civil cases usually in-
volve the resolution of disputes between private par-
ties in such areas as personal injury, breach of con-
tract, property disputes, or resolution of domestic
relations disputes. Criminal cases involve the prose-
cution by the state or federal government of an indi-
vidual accused of violating a criminal statute. The
rules and procedures that parties must follow differ
between criminal and civil trials, although similarities
exist between the two types of rules. Some courts,
such as probate courts and juvenile courts, have
been developed to hear specific types of suits in a
particular jurisdiction. Other tribunals, such as small
claims courts and justice of the peace courts, have
also been established to resolve minor disputes or
try cases involving alleged infractions of minor
crimes. The systems by which parties appeal deci-
sions are also premised on an adversarial process.
Civil Trials
A party commences a civil trial by filing a petition
or complaint with an appropriate court. The party
bringing the suit is usually referred to as the plaintiff,
though in some cases the party is referred to as the
petitioner. A petition or complaint must generally
name the parties involved, the cause of action, the
legal theories under which recovery may be appro-
priate, and the relief sought from the court. Once the
petition or complaint is filed with the court, the
plaintiff must serve the party or parties against whom
the action was brought. The party against whom the
case is brought is referred to as the defendant,
though in some cases this party is referred to as the
respondent. A defendant generally responds to a pe-
tition or complaint by filing an answer admitting or
denying liability, though the filing of a pre-answer
motion or motions may precede this.
A number of events occur between the time a pe-
tition or complaint is filed with a court and the time
of trial. During the pretrial stage, the parties will usu-
ally file a series of motions with the court, requesting
the addition or removal of a party, limits on evidence
that may be presented at trial, or the complete dis-
missal of the case in its entirety. Parties also collect
information in a process called discovery. During dis-
covery, parties file interrogatories, which are written
questions submitted to the other party or parties;
seek admissions to certain facts from the other party
or parties; and take depositions, which are oral ques-
tions asked of witnesses who are under oath. The
pretrial stage is very important to the eventual reso-
lution of a dispute, and many cases are settled by the
parties outside of court or dismissed before the case
actually goes to trial.
When a civil case goes to trial, a judge or a jury
may try it. If a judge tries a case, he or she makes find-
ings of facts and rulings of law, and the trial is usually
referred to as a bench trial. If a jury tries a case, the
jury makes findings of facts, such as whether a con-
tract existed or whether one party assaulted another
party. However, the judge makes rulings of law in a
jury trial. A plaintiff who wants a jury to try his or her
case must usually request it as a jury demand, or else
the case will proceed as a bench trial. Some types of
cases, such as family law cases, are never tried with
juries. If a jury is requested, the case proceeds with
the selection of jurors. During this time, a specified
number of jurors are selected randomly from a pool
of potential jurors. Both parties are permitted to
question the jurors in a process called voir dire, and
may ask that a certain number of jurors be removed
from the final jury.
At the beginning of a trial, both sides give opening
statements, providing an overview of the evidence
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
GALE ENCYCLOPEDIA OF EVERYDAY LAW xix
that will be presented during the trial. After opening
statements, both sides present evidence by question-
ing its own witnesses (called direct examination) and
introducing physical items into evidence. Each party
has the right to cross-examine witnesses produced
by the opposing party. All jurisdictions have devel-
oped detailed rules of evidence that must be fol-
lowed by both parties. Many of these rules govern
the questions that may be asked on direct or cross-
examination of witnesses. If one party enters some-
thing into evidence that violates the rules of evi-
dence, the other party must raise an objection to the
entry of this evidence, and the judge may sustain or
overrule this objection. Some violations of the rules
of evidence may result in a mistrial, in which the en-
tire trial process must be repeated because it would
be unfair to continue with the case. Even if the rule
violation is not enough to cause a mistrial, a party
who may wish to appeal an adverse ruling must raise
objections during trial to ‘‘preserve error’’ for future
consideration by appellate courts. Appellate courts
will generally only consider points of possible error
when the party seeking the appeal raised an objec-
tion and preserved error at the trial level.
A plaintiff generally has the burden to prove a
case, and always introduces evidence before the de-
fendant. Because a plaintiff has the burden of proof,
a defendant is not required to introduce evidence,
though the defendant will almost always do so. After
the defendant concludes his or her presentation of
evidence, the plaintiff may present evidence that re-
buts evidence offered by the defense. Once all evi-
dence has been introduced, both parties make clos-
ing arguments. Closing arguments are followed by
jury deliberation, in which the jury determines
whether the plaintiff or plaintiffs deserve to recover,
and what amount of damages is appropriate. A jury
relies on jury instructions (or court charges) given to
them by the court, which describe the law and proce-
dure that the jury must use to make its decision. The
percentage of jurors that must be in agreement to
render a decision ranges among different jurisdic-
tions.
Once a jury renders a verdict, the parties may file
post-trial motions that may still affect the outcome
of the trial. These motions may include motion for
new trial, which is usually awarded if something oc-
curred during the trial that rendered the process un-
fair to one of the parties; or a motion for judgment
notwithstanding the verdict (commonly referred to
as ‘‘JNOV’’), where the court renders judgment for
one party, though the jury decided in favor of the
other party, because the evidence presented at trial
did not support the jury’s decision. A party who wish-
es to appeal an adverse decision may also file a notice
of appeal with the trial court, indicating that it wishes
to appeal the ruling to an appellate court. Filing a no-
tice of appeal within a certain time frame (30 days is
common) is required in most jurisdictions in order
to appeal a case to a higher court.
Criminal Trials
State and federal prosecutors initiate criminal
cases, which involve charges that an individual has vi-
olated a criminal law. In all criminal cases, the state
or federal government serves as the plaintiff, while
the person charged is the defendant. Criminal laws,
which are promulgated by the various legislatures,
consist of two major types of laws: felonies and mis-
demeanors. Felonies consist of the more serious
crimes, and carry with them the most serious punish-
ment. Both felonies and misdemeanors can result in
jail or prison time, and both will usually result in a
significant fine.
Citizens are guaranteed a number of rights in the
context of criminal prosecution, and exercise of
these rights is often the focus of criminal trials. The
Fourth Amendment of the U.S. Constitution requires
that law enforcement officials obtain a search war-
rant, upon showing of probable cause, before con-
ducting searches or seizures of individuals or the
property of individuals. The Fifth and Sixth Amend-
ments contain a number of guarantees to all citizens
that must be provided in a criminal trial. If a citizen’s
constitutional rights have been violated, the state
may be required to proceed without the introduc-
tion of relevant evidence obtained illegally, or may be
required to terminate the criminal action altogether.
When a person is arrested for violation of a crimi-
nal law, he or she must generally be brought before
a judge within twenty-four hours of the arrest. The
judge must inform the individual of the charges
brought against him or her, and set bail or other con-
dition of release. After other preliminary matters, the
defendant is formally charged in one of two ways.
First, the prosecutors may file a ‘‘trial information,’’
which formally states the charges against the defen-
dant. In more serious cases, such as murder trials, a
panel of citizens will be convened as a grand jury to
consider the evidence against the defendant. A grand
jury, unlike a trial jury, only determines whether suf-
ficient evidence to support the criminal charge ex-
ists, and will issue an indictment if evidence is suffi-
cient. Either the filing of a trial information, or the
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
xx GALE ENCYCLOPEDIA OF EVERYDAY LAW
return of an indictment, formally begins the trial pro-
cess by charging the defendant. Once the defendant
has been formally charged, he or she must appear for
an arraignment, where the court reads the charge
and permits the defendant to enter a plea. The de-
fendant may enter a plea of guilty or not guilty at this
time. Where it is permitted or required as a prerequi-
site to an insanity defense, the defendant may enter
a plea of not guilty by reason of insanity. In some ju-
risdictions, including federal courts, the defendant
may plead nolo contendere, or ‘‘no contest,’’ which
means that the defendant does not contest the
charges. Its primary effect is the same as a plea of
guilty, and its primary significance is that a plea of
nolo contendere cannot be introduced into evidence
in a subsequent civil action as proof of the defen-
dant’s guilt in the criminal action. Nolo contendere
pleadings may usually only be entered with the per-
mission of the court.
The Sixth Amendment guarantees the accused in
a criminal prosecution a speedy and public trial.
When a defendant enters a plea of not guilty, the trial
is usually scheduled within ninety days of the filing
of the trial information or indictment. The Sixth
Amendment also guarantees citizens accused of
crimes the right to a jury trial, though a defendant
may waive this right and request a bench trial. During
the pre-trial stage, the defendant may file motions
with the court, such as those requesting exclusion of
evidence from a trial because the evidence may have
been obtained illegally. A defendant may also engage
in pretrial discovery, including requests to view evi-
dence in the possession of the prosecution. The
prosecution and the defendant may engage in plea
bargaining, whereby the prosecution may agree to
reduce charges against the defendant in exchange
for a plea of guilty or nolo contendere.
When a case proceeds to a jury trial, the parties
have an opportunity to question prospective jurors,
similar to the selection of jurors in a civil case, except
that the final number of jurors in a criminal trial is
usually larger than the number used in a civil case.
Both the state and the defendant have the opportu-
nity to strike jurors from the final jury. Once the final
jury is selected and the trial begins, the prosecution
reads the indictment or trial information, reads the
defendant’s plea, and makes an opening statement.
The defendant may make an opening statement im-
mediately after the prosecution, or may wait to do so
until the time the defense introduces its evidence.
Introduction of evidence in a criminal case is similar
to that of a civil case, and the prosecution bears the
burden of proving that the defendant is guilty be-
yond a reasonable doubt. Until the state proves oth-
erwise, the defendant is presumed innocent. The de-
fendant is not required to introduce evidence since
the prosecution bears the burden of proof, but if the
defendant does produce evidence, the prosecution
may present rebuttal evidence and cross-examine
any witnesses. Once both sides have presented the
evidence, each party may give a closing argument.
A jury in a criminal trial must return a unanimous
verdict of ‘‘guilty’’ or ‘‘not guilty.’’ If a jury fails to
reach a unanimous verdict, it is referred to as a
‘‘hung’’ jury, and a mistrial is declared. In such a situ-
ation, a new jury must retry the entire case. If the jury
returns a unanimous verdict of guilty, then the jury’s
duty is usually complete, since a jury in most jurisdic-
tions is not involved in the sentencing of the defen-
dant. A judge, when determining an appropriate sen-
tence for a convicted defendant, considers testimony
and reports from a number of different sources, such
as probation officers and victims. The federal govern-
ment and many state governments have established
detailed sentencing guidelines that must be followed
by judges in criminal cases. In addition to a sentence
of imprisonment or of a fine, a court may place a con-
victed defendant on probation, meaning that the de-
fendant is placed under the supervision of a local
correctional program. A defendant must comply with
specific terms and conditions of the probation in
order to avoid time in prison or jail. Similar to proba-
tion, a judge may also give the defendant a deferred
judgment, or may suspend the defendant’s sentence.
In either case, the defendant is given the opportunity
to remove the crime from his or her criminal record
by successfully completing a period of probation.
Appeals
If a party in a case is not satisfied with the out-
come of a trial decision, he or she may appeal the
case to a higher court for review. Not all parties have
the right to appeal, however, and parties must follow
proper procedures for the higher court to agree to
hear the appeal. During trial, parties must ‘‘preserve
error’’ by making timely objections to violations of
the rules of evidence and other procedural rules.
After trial, the party seeking an appeal must file a no-
tice of appeal with the trial court. The opposing party
may file a notice of cross-appeal if that party is not
satisfied with the final judgment from the lower
court. The party bringing the appeal is usually re-
ferred to as the appellant (though in some cases this
party is the petitioner), and the opposing party is re-
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
GALE ENCYCLOPEDIA OF EVERYDAY LAW xxi
ferred to as the appellee (or respondent in some
cases).
Once a party has filed a notice of appeal, both par-
ties must comply with a series of rules of appellate
procedure to continue with the appeal. The appel-
lant usually requests that the transcript of the trial
court proceeding from the trial court reporter be
sent to the court of appeals. The appellant must also
pay a docketing or similar fee with the court of ap-
peals. Both parties then file briefs with the appellate
court stating the facts from the case, stating the legal
arguments and reasons for appeal, and requesting re-
lief from the appellate court. Both parties have ac-
cess to the other party’s briefs submitted to the
court. Parties also request an oral argument, where
both sides are given the opportunity to make their
legal arguments before the court, and answer ques-
tions from the appellate court justices. Appellate
courts do not hear testimony from witnesses or con-
sider evidence that was not introduced in the trial.
Rather, a court of appeals reviews the trial court pro-
ceeding to determine whether the trial court applied
substantive or procedural law to the facts of the case
correctly. At the end of the appeal, the court will
issue an opinion that states the conclusion of the
court of appeals.
Almost all judicial systems in the United States
consist of three tiers, and an intermediate appellate
court hears the first level of appeals. If a party is dis-
satisfied with an intermediate court’s opinion, the
party may seek an appeal by its jurisdiction’s court
of last resort. In many cases, the decision of a court
of last resort to hear an appeal is discretionary, and
a party must petition the court to hear the appeal (in-
termediate appellate courts, by comparison, typically
do not have this discretion). The United States Su-
preme Court is the court of last resort for all cases
in the United States, including the intermediate fed-
eral courts of appeals and the highest state courts.
The U.S. Supreme Court only hears cases involving
the application of federal law, and in most cases, the
decision to grant an appeal is completely discretion-
ary on the part of the Supreme Court. A party seek-
ing review from the Supreme Court must file a peti-
tion for writ of certiorari requesting that the Court
review the lower court’s decision, and if the Court
grants the writ, the Court orders the submission of
the lower court’s case. The Supreme Court grants a
writ of certiorari in a very small percentage of cases,
usually when there is a controversial issue of federal
law in question in the case.
Civil appeals and criminal appeals are similar, with
two main exceptions. First, with very few exceptions,
the state may not appeal an acquittal of a criminal in
a trial court case. Second, in some criminal cases, es-
pecially murder cases where the defendant has re-
ceived the death penalty, the right to appeal is guar-
anteed and automatic.
Jurisdiction and Venue
When a party bring a lawsuit in a court in the Unit-
ed States, the party must determine which court has
appropriate jurisdiction to hear the case, and which
court is the proper venue for such a suit. Jurisdiction
refers to the power of a court to hear a particular
case, and may be subdivided into two components:
subject matter jurisdiction and personal jurisdiction.
Venue refers to the appropriateness of a court to
hear a case, and applies differently than jurisdiction.
A court has proper subject matter jurisdiction if it
has been given the power to hear a particular type
of case or controversy under constitutional or statu-
tory provisions. For example, a county court of law
may have jurisdiction to hear cases and controversies
where the amount in controversy of the claim is less
than $5,000. If a claimant brings a case before the
county court with an amount in controversy of
$7,500, the court lacks jurisdiction to hear the case
and will dismiss it. Subject matter jurisdiction is often
a difficult issue with respect to the jurisdiction of fed-
eral courts, discussed below. Personal jurisdiction is
based on the parties or property involved in the law-
suit. In personam jurisdiction refers to the power of
a court over a particular person or persons, and usu-
ally applies when a party is a resident of a state or has
established some minimum contact with that state.
In rem jurisdiction, by comparison, refers to the
power of a court over property located in a particular
state.
Venue is often confused with jurisdiction because
it applies when determining whether a particular
court may hear a case. A court may have jurisdiction
to hear a case, but may not be the proper venue for
such a case. Statutes often provide that proper venue
in a particular case is the county or location where
the defendant or defendants reside. Even if a court
in the county where the plaintiff resides has proper
jurisdiction to hear the case, it may not be the proper
venue because of a provision in a statute regarding
venue.
Jurisdiction of Federal Courts
Federal courts in the United States have limited
jurisdiction to hear certain claims, based primarily on
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
xxii GALE ENCYCLOPEDIA OF EVERYDAY LAW
provisions in Article III of the U.S. Constitution. Fed-
eral courts can hear cases involving the application
of the Constitution, federal statutes, or treaties. Fed-
eral courts may also hear cases where the amount in
controversy is more than $75,000, and all of the par-
ties are citizens of different states. State courts may
also hear cases with federal questions or where par-
ties reside in different states. If a party brings a case
in state court and a federal court has jurisdiction to
hear the case, the opposing party may remove the
case to federal court. The federal court generally re-
views each case to determine whether jurisdiction is
appropriate. If federal jurisdiction is not appropriate,
the court remands the case to state court.
Some suits may only be brought in federal court,
such as those brought by or against the government
of the United States. Other examples are those in-
volving bankruptcy, patents, and admiralty.
Legal vs. Equitable Remedies
Some remedies available from courts are consid-
ered ‘‘legal’’ remedies, while others are considered
‘‘equitable’’ remedies. Legal remedies are usually
those involving an award of monetary damages. By
comparison, a court through use of an equitable
remedy may require or prohibit certain conduct
from a party. The distinction between legal and equi-
table remedies relates to the historic distinction be-
tween ‘‘law’’ and ‘‘equity’’ courts that existed in En-
gland as far back as the fourteenth century. Law
courts traditionally adhered to very rigid procedures
and formalities in resolving the outcome of a legal
conflict, while equity courts developed a more flexi-
ble system where judges could exercise more discre-
tion. This system transferred to the United States,
but today, most courts in the United States may hear
cases in both law and equity, although the procedure
and proof required to request an equitable remedy
may differ from the requirements to request a legal
remedy. Examples of equitable remedies are specific
performance of a contract, reformation of a contract,
injunctions, and restitution.
Procedural Rules of the Courts
In addition to procedural laws promulgated by
legislatures, judicial systems also adopt various rules
of procedure that must be followed by the courts and
parties to a case. Two main types of court rules exist.
First, some rules have general applicability over all
courts in a particular jurisdiction. Examples of such
rules are rules of civil procedure, rules of appellate
procedure, rules of criminal procedure, and rules of
evidence. Second, some rules apply only to a particu-
lar court, and are referred to as local court rules.
Many counties draft local court rules that apply to all
courts in those particular counties. Local court rules
are generally more specific than rules of general ap-
plicability, and both must be consulted in a given
case.
Pro Se Litigants and the Right to
Representation
A litigant representing himself or herself, without
the assistance of counsel, is called a pro se litigant.
It is almost always advisable to seek counsel with re-
spect to a legal claim, if possible. Defendants in crim-
inal cases are entitled to legal representation, and a
lawyer will be provided to a criminal if the criminal
shows indigence. Such assistance in criminal cases is
usually provided by a public defender’s office. Claim-
ants in civil cases, on the other hand, are not entitled
to attorneys, though any of a number of legal aid so-
cieties may be willing to provide legal services free
of charge. Many of these legal aid societies are subsi-
dized by public agencies, and will accept a case only
if a person meets certain criteria, usually focusing on
the income of the party.
In a civil case, a court may appoint counsel after
considering a number of factors, including the validi-
ty of the party’s position, and the ability of the party
to try the case. A party who is indigent must usually
file a written motion with the court, explaining the
party’s indigence and need for counsel. An attorney
who provides free legal assistance is said to provide
a pro bono service. Attorneys are generally free to
determine when they will provide pro bono services,
and it is common in every jurisdiction for the num-
ber of litigants seeking the appointment of counsel
to outweigh the number of attorneys willing to pro-
vide pro bono services.
If a party must continue pro se, the rules regard-
ing sanctions of attorneys apply equally to this party.
A party must verify the accuracy and reasonableness
of any document submitted to the court. If any sub-
mission contains false, improper, or frivolous infor-
mation, the party may be liable for monetary or other
sanctions. Likewise, a pro se litigant may be held in
contempt of court for failure to follow the directions
of a court. Many courts provide handbooks that as-
sist pro se litigants in following proper trial proce-
dures.
Small Claims Courts and Other Local
Tribunals
Cases involving a relatively small amount in con-
troversy may be brought before small claims court.
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
GALE ENCYCLOPEDIA OF EVERYDAY LAW xxiii
These courts exist only at the state court level. The
maximum amount in controversy for a small claims
court is usually $1,000 for a money judgment sought,
or $5,000 for the recovery of personal property,
though these amounts vary among jurisdictions. Wit-
nesses are sworn, as they are in any trial, but the
judge in a small claims court typically conducts the
trial in a more informal fashion than in a trial at the
district court level. Judges may permit the admission
of evidence in a small claims action that may not be
admissible under relevant rules of evidence or rules
of procedure. One major exception is that privileged
communication is usually not admissible in a small
claims action. A small claims court usually only has
the power to award monetary damages. If a party is
unsatisfied with the judgment of the small claims
court, the party may ordinarily appeal the case to a
district court or other trial court.
Alternative Dispute Resolution
A variety of procedures may be available to par-
ties, which can serve as alternatives to litigation in
the court system. Alternative dispute resolution, or
ADR, has become rather common, because it is typi-
cally less costly and does not involve the formal pro-
ceedings associated with a trial. Parties usually enter
into one of two types of ADR: arbitration or media-
tion. If a case is submitted to arbitration, a neutral ar-
bitrator renders a decision that may be binding or
non-binding, depending on the agreement of the
parties. An arbitrator serves a function analogous to
a judge, though the presentation of each party’s evi-
dence does not need to follow the formal rules that
must be followed in a judicial decision. Though par-
ties are generally not able to appeal an arbitrator’s
award, parties may seek judicial relief if the arbitrator
acts in an arbitrary or capricious manner, shows bias
towards one of the parties, or makes an obvious mis-
take. Arbitration may be ordered by a court, may be
required under certain laws, or may be voluntary.
Mediation is similar to arbitration because it in-
volves the use of a neutral third party to resolve a dis-
pute. A mediator assists the parties to identify issues
in a dispute, and makes proposals for the resolution
of the dispute or disputes. However, unlike arbitra-
tors, a mediator does not have the power to make
a binding decision in a case. Also unlike arbitrators,
a mediator typically meets with each of the interest-
ed parties in private to hold confidential discussions.
Mediation may be court-ordered, may be required
under certain laws, or may be voluntary. A number
of organizations, including state bar associations,
offer mediation services.
A number of other forms of ADR exist. For exam-
ple, parties may employ the use of a fact finder, who
resolves factual disputes between two parties. In
some jurisdictions, parties may be required to sub-
mit a dispute to early neutral evaluation, where a
neutral evaluator provides an assessment of the
strengths and weaknesses of each party’s position.
Case Law in the Common Law System
Cases play a very important part in the legal sys-
tem of the United States, not only because courts ad-
judicate the claims of parties before them, but also
because courts establish precedent that must be fol-
lowed in future cases. The United States adopted the
common law tradition of England as the basis for its
legal system. Under the common law system, legal
principles were handed down from previous genera-
tions, first on an unwritten basis, then through the
decisions of the courts. Though legislatures possess
constitutional power to make law, in a common law
system there is no presumption that legislation ap-
plies to every legal problem in the area addressed by
the legislation. This differs from the legal systems
based on the civil law tradition derived from Roman
law (the use of the term civil law also refers to non-
criminal laws, as discussed below, and the two uses
of the term are distinct). In a civil law system, legisla-
tures develop codes that are presumed to apply to
all situations relevant to the code, and courts are em-
ployed only to adjudicate claims. The only state in
the United States that does not consider itself a
‘‘common law state’’ is Louisiana, which adopted the
civil law tradition based on its roots in French law.
Accordingly, the codes (legislation) in that state are
somewhat different than those in other states.
Courts in the United States follow the doctrine of
precedent, which was also adopted from the English
common law system. Under this doctrine, courts not
only adjudicate the claims of the parties before them,
but also establish a precedent that must be followed
in future cases. The ruling of a court binds not only
itself for future cases, but also any courts under
which the court has appellate jurisdiction. Though
trial level courts make rulings of law that are binding
on future cases, the doctrine of precedent is most
important in the legal system at the appellate levels.
Publication of Case Law
Unlike statutes, cases are usually not available in
a subject matter arrangement. When a case is first
published, it is issued as a ‘‘slip opinion,’’ named as
such because these are printed on unbound sheets
of paper. These opinions are compiled, and eventu-
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
xxiv GALE ENCYCLOPEDIA OF EVERYDAY LAW
ally published in bound case reporters. Cases from
the U.S. Supreme Court and from courts in many ju-
risdictions are contained in reporters published by
government bodies, and are called official reporters.
These cases and other cases are also published in the
National Reporter System, originally created by West
Publishing Company (now West Group) in 1879.
Case reporters in this system include state cases, fed-
eral cases, and cases from specialized tribunals, such
as the bankruptcy courts. Cases may be readily locat-
ed by finding their citation in the National Reporter
System, or in another case reporter. An example of
such a citation is ‘‘Roe v. Wade, 93 S. Ct. 705 (1973).’’
‘‘Roe v. Wade’’ refers to the names of the parties of
the case; ‘‘93’’ refers to the volume of the reporter;
‘‘S. Ct.’’ is an abbreviation for Supreme Court Report-
er; ‘‘705’’ refers to the page in the reporter where the
case begins; and ‘‘(1973)’’ refers to year the case was
decided.
Cases from all three levels of the federal judicial
system are published. With few exceptions, only ap-
pellate court opinions from state courts are pub-
lished. Unlike appellate courts, state trial judges sel-
dom issue formal legal opinions about their cases,
although rulings of law may be available in the record
of the trial court. Most legal research in case law fo-
cuses on location of appellate court decisions.
Reading a Judicial Opinion
Like other types of law, reading and understand-
ing the meaning of a judicial opinion is more of an
art than a science. The opinion of the case includes
the court’s reasoning in deciding a case, and is bind-
ing on future courts only if a majority of the court de-
ciding the case joins the opinion (in which case the
opinion is called the majority opinion). If an opinion
is written in support of the court’s judgment, but is
not joined by a majority of justices, then the opinion
is termed a plurality. Plurality opinions are not bind-
ing on future courts, but may be highly persuasive
since they support the judgment of the court. Some
justices may agree with the judgment, but may not
agree with the majority opinion. These justices may
write concurring opinions that state their reasons in
support of the judgment. These opinions have no
precedential value, but may be persuasive in future
cases. Similarly, justices who disagree with the judg-
ment, the opinion, or both, write dissenting opinions
that argue against the judgment or majority opinion.
Some components of a majority opinion are bind-
ing on future courts, while others are not. The actual
holding or reason for deciding (traditionally referred
to as the ratio decidendi) provides the rule of law
that is binding precedent in future cases. By compari-
son, dictum is the portion of an opinion that is not
essential to a court’s holding, and is not binding on
future courts. Dicta may include background infor-
mation about the holding, or may include the judge’s
personal comments about the reasoning for the
holding. Dicta may be highly persuasive and may
alter the holdings of future cases.
Administrative Law and Procedure
Creation and Empowerment of Government
Agencies
Although the branches of government are primar-
ily responsible for the development of law and reso-
lution of disputes, much of the responsibility of the
administration of government has been delegated to
government agencies. While branches of govern-
ment may not delegate essential government func-
tions to agencies, agencies may administer govern-
ment programs, and promulgate and enforce
regulations. When a legislature creates a government
agency, it does so through the passage of an enabling
statute, which also describes the specific powers del-
egated to the agency. The Administrative Procedure
Act (APA) governs agency action at the federal level,
and state counterparts to the APA govern state agen-
cies.
Types of Government Agencies
Some government agencies are formed to carry
out government programs, but do not promulgate
regulations that carry the force of law. A number of
these agencies have been established to administer
such programs as highway construction, education,
public housing, and similar functions. Other govern-
ment agencies promulgate rules and regulations that
govern a particular area of law. Examples of regulato-
ry agencies include the Environmental Protection
Agency and Nuclear Regulatory Commission, both of
which promulgate regulations that are similar in
function to legislation. Legislatures also create agen-
cies that resolve dispute among parties, similar to the
function of a judicial body. Agency decisions are usu-
ally referred to as agency adjudications. Examples of
agencies that adjudicate claims are the National
Labor Relations Board and Securities and Exchange
Commission.
Agency Rulemaking
Most agencies that have regulatory power promul-
gate regulations through a process called notice and
comment rulemaking. Before a regulatory agency
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
GALE ENCYCLOPEDIA OF EVERYDAY LAW xxv
can promulgate a rule, it must provide notice to the
public. Federal agencies provide notice in the Feder-
al Register, a daily government publication that pro-
vides the text of proposed and final agency rules.
After considering comments from the public and
making additional considerations, the agency may
issue a final, binding rule. The promulgation of a final
rule can take months, or may take years, to com-
plete. State agencies must follow similar procedures,
including publication of proposed rules in a publica-
tion analogous to the Federal Register. Agency rules
are functionally equivalent to statutes. Federal agen-
cy rules currently in force are published in a subject
matter arrangement in the Code of Federal Regula-
tions. Each state publishes its rules in force in a state
administrative code.
Some agencies at the state and federal levels are
required to follow more formal procedures. Agencies
may not exceed the power delegated by a respective
legislature, and may adopt rules without following
the proper procedures provided in the enabling leg-
islation or legislation governing administrative pro-
cedures.
Agency Adjudications
Agencies with power to adjudicate claims operate
similarly to a court. Such an agency considers evi-
dence presented in a hearing, and makes a final,
binding decision based on an application of the law
to the facts in a case. An agency that adjudicates a
claim must maintain a record of the hearing, and par-
ties are generally able to seek judicial review of a de-
cision, much like judicial review of a lower court de-
cision. A court may overrule an agency decision if the
agency acted in an arbitrary or capricious manner,
made a decision unsupported by substantial evi-
dence, or made a decision unsupported by the facts
presented to the agency.
Relationship Among Various Laws and
Other Authority
Laws in the United States do not exist in a vacuum,
and determining the appropriate outcome of a case
may require consultation with several different types
of laws. A single case may be governed by application
of a statute, an administrative regulation, and cases
interpreting the statute and regulation. Understand-
ing the application of laws usually requires an under-
standing of the nature of legal authority.
Any authority emanating from an official govern-
ment entity acting in its lawmaking capacity is re-
ferred to as primary authority, and this authority is
what is binding on a particular case. Primary authori-
ty can be subdivided into two types: primary manda-
tory authority and primary persuasive authority. Pri-
mary mandatory authority is law that is binding in a
particular jurisdiction. For example, a Fifth Circuit
Court of Appeals decision is primary mandatory au-
thority in Texas, Mississippi, and Louisiana, since the
Fifth Circuit governs these states. By comparison,
primary authority that is not binding in a particular
jurisdiction is referred to as primary persuasive au-
thority. It is considered persuasive because though
such authority does not bind a decision-maker in a
jurisdiction, the decision-maker may nevertheless be
persuaded to act in a familiar fashion as the authority
from outside the jurisdiction. In the example above,
a Fifth Circuit decision in a court in California would
be considered primary persuasive authority, and
could influence the California tribunal in its decision-
making.
A second type of authority—secondary authori-
ty—may also be helpful in determining the appropri-
ate application of the law. Secondary authority in-
cludes a broad array of sources, including treatises (a
term used for law book); law review articles, which
are usually written by law professors, judges, or ex-
pert practitioners; legal encyclopedias, which pro-
vide an overview of the law; and several other items
that provide commentary about the law. An individu-
al who is not trained in the law (and in many cases
those who are trained in the law) should ordinarily
begin his or her legal research by consulting such au-
thority to gain a basic understanding of the law that
applies in a particular situation.
A final consideration that cannot be overlooked is
that the law constantly changes. If a legal researcher
comes across literature describing the law in a given
area, he or she must always verify that the discussion
in the literature reflects the current state of the law.
Legislatures and agencies constantly add new laws,
and revise and amend existing laws. Similarly, courts
routinely overrule previous decisions and may rule
that a statute or regulation is not valid under a rele-
vant constitutional provision. Updating legal authori-
ty involves a process of consulting supplements and
other resources, and is necessary to ensure that an
individual knows the current state of the law.
OVERVIEW OF THE AMERICAN LEGAL SYSTEM
xxvi GALE ENCYCLOPEDIA OF EVERYDAY LAW
AMERICANS WITH DISABILITIES ACT
EDUCATIONAL ACCOMMODATIONS
Sections within this essay:
• Background
• Defining Disability
• Accommodation of Disabilities
• Reasonable Accommodation
• Testing and Examinations
• Hidden Disabilities
• Private and Religious Schools
• Postsecondary Education
• Additional Resources
Background
The Fourteenth Amendment to the Constitution
provides: ‘‘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 de-
prive any person of life, liberty, or property, without
DUE PROCESS OF LAW; not deny any person withinits
JURISDICTION the EQUAL PROTECTION of the laws.’’
These rights have been extended to many groups
throughout the history of the United States, and the
Americans with Disabilities Act spells out how those
living with disabilities may not be barred from any
educational situation.
The DISABILITY rights movement used similar tac-
tics and strategies to fight to extend the ‘‘equal pro-
tection of the laws’’ to those with physical or mental
handicaps following the passage of the CIVIL RIGHTS
Act of 1964. The first success the disability rights
movement had was with Section 504 of the Rehabili-
tation Act of 1973. Based on the models of previous
laws with prohibited discrimination based on race or
gender, Section 504 prohibits DISCRIMINATION in pro-
grams or activities receiving federal financial assis-
tance. It provides: ‘‘No otherwise qualified individual
with handicaps in the United States . . . shall, solely
by reason of her or his handicap, be excluded from
the participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance.’’ This
provision marks the first time the disabled were
viewed as a class of people, similar to a race or gen-
der. The disabled used Section 504 to demand and
enforce equal footing as a class under the law, one
that could demand facilities to accommodate their
disability.
Although this language offered some protection
from educational discrimination for those with dis-
abilities, Section 504 did not go far enough. It only
applied in limited situations, where the program or
building used federal financial aid in the form of
grants. Those with disabilities still faced discrimina-
tion in the private sector, in private schools, and in
those public facilities that did not use federal grant
money. The disabled still faced a great many inacces-
sible schools, testing situations that did not offer al-
ternatives for the deaf, the blind, or those with other
types of disability, and other, similar barriers to equal
education and access.
The Americans with Disabilities Act was passed on
July 26, 1990, and signed into law by President
George H. W. Bush. The intention of Americans with
Disabilities Act was to fill the gaps left behind by Sec-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 1
tion 504. The ADA builds upon the legal language
within Section 504, so that applied together, both
laws would cover almost any situation, public or pri-
vate, that the disabled might encounter.
The ADA bars employment and educational dis-
crimination against ‘‘qualified individuals with dis-
abilities.’’ Title II of the Americans with Disabilities
Act applies specifically to educational institutions, re-
quiring them to make educational opportunities, ex-
tracurricular activities, and facilities open and acces-
sible to all students. The ADA applies equally to
public and private sector institutions, although the
requirements for private schools and institutions are
slightly less stringent.
Defining Disability
Section 504 of the Rehabilitation Act of 1973 de-
fines individuals with disabilities as those who have
a physical or mental impairment which substantially
limits one or more major life activities; has a record
of such impairment; or is regarded as having such an
impairment. This category includes physiological dis-
orders such as hearing impairment, vision impair-
ment, or speech impairments; neurological disor-
ders such as muscular dystrophy or multiple
sclerosis; psychological disorders such as mental re-
tardation, mental illness, or learning disabilities. The
legislative definition does not spell out specific ill-
nesses or impairments because of the difficulty of en-
suring an all-inclusive list.
The deciding factor in determining whether or
not a person suffers from a disability under Section
504 is whether the impairment limits one or more
major life activities, such as walking, performing
manual tasks, seeing, hearing, speaking, breathing,
learning and/or working. The Americans with Disabil-
ities Act defines a disability as a ‘‘physical or mental
impairment that substantially limits one or more
major life activity; a record of such impairment; or
being regarded as having such impairment.’’ The
Americans with Disabilities Act covers obvious im-
pairments such as difficulty in seeing, hearing, or
learning, as well as less obvious impairments such as
alcoholism, epilepsy, paralysis, mental retardation,
and contagious and noncontagious diseases, specifi-
cally Acquired Immune Deficiency Syndrome
(AIDS).
The difference between the two laws, as they
apply to educational institutions, is that Section 504
applies to the recipients of grant monies from the
federal government, while Title II of the Americans
with Disabilities Act applies only to public entities,
with some applications to private sector entities.
These entities include nursery, elementary, second-
ary, undergraduate, or postgraduate schools, or
other places of education, day care centers, and gym-
nasiums or other places of exercise or recreation.
Accommodation of Disabilities
Section 504 of the Rehabilitation Act of 1973 and
Title II of the Americans with Disabilities Act cover
students in virtually any public school district, col-
lege, or university because they receive some form
of federal assistance. Some private schools, colleges,
and universities also receive such assistance, and stu-
dents are protected under Section 504, but Title II
does not apply to them. Both laws apply to all pro-
grams of a school or college, not simply academics.
These include extracurricular activities such as band,
clubs, or academic teams, as well as athletics and any
activity that might occur off campus.
Neither law requires that all buildings be made
fully accessible to students or teachers with disabili-
ties. Those buildings constructed after the Section
504 regulation was issued in 1977 must be fully acces-
sible. For older buildings, the law requires that the
program or activity be made accessible. Often, class-
es or extracurricular activities are moved to another,
more accessible, room to accommodate any disabled
person who attends. An interpreter for the hearing-
impaired or other types of assistance can be sup-
plied.
Reasonable Accommodation
One aim of the Americans with Disabilities Act was
to make educational institutions more accessible for
the disabled. This aim covers ‘‘reasonable accommo-
dations’’ such as the following:
• Modification of application and testing
• Allowing students to tape-record or video-
tape lectures and classes
• Modification of class schedules
• Extra time allotted between classes
• Notetakers
• Interpreters
• Readers
• Specialized computer equipment
AMERICANS WITH DISABILITIES ACT—EDUCATIONAL ACCOMMODATIONS
2 GALE ENCYCLOPEDIA OF EVERYDAY LAW
• Special education
Accommodation also includes physical changes to
an educational institution’s buildings, including the
following:
• Installing accessible doorknobs and hard-
ware
• Installing grab bars in bathrooms
• Increasing maneuverability in bathrooms for
wheelchairs
• Installing sinks and hand dryers within reach
• Creating handicapped parking spaces
• Installing accessible water fountains
• Installing ramps
• Having curb cuts, sidewalks, and entrances
that are accessible
• Installing elevators
• Widening door openings
Public accommodation is not required if a particu-
lar aid or service would result in either fundamental
alteration of the services offered or the facility if the
accommodation would impose an undue burden.
(See Southeastern Community College v. Davis, 442
U. S. 397 (1979)). Under the U. S. Supreme Court’s
interpretation, Congress intended that undue bur-
den and hardship shall be determined on a case-by-
case basis.
Testing and examinations
Section 309 of the Americans with Disabilities Act
fills the gap regarding testing and examination not
defined by Section 504 of the Rehabilitation Act of
1973 or Title II of the Americans with Disabilities Act.
Any educational facility that receives federal money
or is a public facility because it is a function of the
state or local government as defined under Title II of
the ADA is required to make any examination acces-
sible to persons with disabilities. This requirement
includes physical access to the testing facility, as well
as any modification of the way the test is adminis-
tered to assist the disabled. Modifications may in-
clude offering extended time, written instructions, or
the assistance of a reader.
Many licensing and testing authorities are not cov-
ered by Section 504 or Title II. In these cases, a provi-
sion in the ADA was included to assure that persons
with disabilities are not prohibited from or disal-
lowed in any educational, professional, or other
EXAMINATION opportunity because a test or course is
conducted in an inaccessible location or is offered
without the needed modifications to assist the dis-
abled student. Modifications may include offering an
examination with the assistance of a reader, in a
braille or large print format, transcribers, or the
proper computer equipment to help the disabled
person.
Examiners may require proof of disability, but re-
quests for documentation of the disability must be
reasonable and must be limited to support for the
modification or aid requested. The student or testing
applicant may be required to bear the cost of provid-
ing such documentation for examination officials.
Appropriate documentation would include:
• Letter from physician or psychiatrist or other
qualified individual
• Evidence of prior diagnosis
• Evidence of prior accommodation
Hidden Disabilities
Hidden disabilities are considered to be any physi-
cal or mental impairments that are not readily appar-
ent to others. They include such conditions as learn-
ing disabilities, allergies, diabetes, epilepsy, as well as
chronic illnesses such as heart, kidney, or liver dis-
ease. There are roughly four million American stu-
dents with disabilities, many with impairments that
are not immediately known without medical or diag-
nostic testing.
Private and Religious Schools
The ADA covers private elementary and secondary
schools as places of public accommodation, i.e. they
must be physically accessible to those with disabili-
ties. But these schools are not required to provide
free appropriate education or develop an individual-
ized educational program for students with disabili-
ties. Any private school that receives federal grant
monies or any type of federal assistance would then
fall under the Department of Education’s regulations
regarding construction and alterations to the private
school’s structures and buildings, where it can be
conveniently and economically incorporated.
AMERICANS WITH DISABILITIES ACT—EDUCATIONAL ACCOMMODATIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 3
Postsecondary Education
Under Section 504, colleges and universities are
not required to identify students with disabilities.
They are required to inform all applicants of the
availability of auxiliary aids, services, and academic
adjustments. It is the student’s responsibility to
make his or her condition known and to seek out as-
sistance.
Additional Resources
Americans with Disabilities Handbook. Equal Opportuni-
ty Commission and U. S. Department of Justice. Octo-
ber 1991.
Auxiliary Aids and Services for Post–secondary Students
with Disabilities: Higher Education’s Obligations
Under Section 504 and Title II of the ADA. Office for
Civil Rights, U. S. Department of Education. 1998.
The Civil Rights of Students with Hidden Disabilities
Under Section 504 of the Rehabilitation Act of 1973. Of-
fice for Civil Rights, U. S. Department of Education.
1995.
Clearinghouse for information about federal govern-
ment resources, pamphlets, and information regard-
ing disabilities, maintained by the Presidential Task
Force on Employment of Adults with Disabilities.http://
www.disAbility.gov.
Student Placement in Elementary and Secondary Schools
and Section 504 and Title II of the ADA. Office for Civil
Rights, U. S. Department of Education.1998.
Organizations
American Council on Rural Special
Education (ACRES)
2323 Anderson Ave., Suite 226, Kansas State
University
Manhattan, WA 66502
Phone: (785) 532-2737
Fax: (785) 532-7732
URL: http://www.ksu.edu/acres
American Speech Language-Hearing
Association (ASHA)
1801 Rockville Pike
Rockville, MD
Phone: (301) 897-5700
Phone: (800) 638-8255
URL: http://www.asha.org
Children with Attention Deficit Disorders
(CHADD)
8181 Professional Place, Suite 201
Landover, MD 20785
Phone: (301) 306-7070
Fax: (301) 306-7090
URL: http://www.chadd.org
Clearinghouse of Disability Information
Office of Special Education and
Rehabilitative Services U. S. Department of
Education
Switzer Building Room 3132 330 C Street SW
Washington, DC 20202
Phone: (202) 205-8241
Fax: (202) 401-2608
Dyslexia Research Institute, Inc.
5746 Centerville Road
Tallahassee, FL 32308
Phone: (850) 893-2216
Fax: (850) 893-2440
URL: http://www.dyslexia-add.org
Learning Disabilities Association of America
(LDA)
4156 Library Road
Pittsburgh, PA 15234
Phone: (412) 341-1515
Fax: (412) 341-8077
URL: http://www.ldanatl.org
National Center for Learning Disabilities
(NCLD)
381 Park Avenue South, Suite 1401
New York City, NY 10016
Phone: (212) 545-7510
Fax: (212) 545-9665
URL: http://www.ncld.org
AMERICANS WITH DISABILITIES ACT—EDUCATIONAL ACCOMMODATIONS
4 GALE ENCYCLOPEDIA OF EVERYDAY LAW
AMERICANS WITH DISABILITIES ACT
PUBLIC FACILITY ACCOMMODATIONS
Sections within this essay:
• Background
• Before ADA
- Architectural Barriers Act
- Rehabilitation Act of 1973
- Uniform Federal Accessibility Stan-
dards (UFAS)
• ADA and Title III
- Physical Accommodations
- Auxiliary Accommodations
- Other Accommodations
• Enforcing the Law
• Additional Resources
Background
Many people think that the Americans with Dis-
abilities Act (ADA) primarily covers workplace ac-
commodations. The only public accommodations
they associate with ADA are handicapped parking
spaces and Braille numbers on elevator buttons. In
fact, the ADA’s public facilities rules, as outlined in
Title III of the act, are far more comprehensive than
that. All sorts of buildings and businesses fall under
Title III: restaurants, schools, office buildings, banks,
doctors’ offices, and movie theaters, to name a few.
Accommodation can include anything from adjusting
store shelves to constructing special ramps and en-
tryways.
Some people mistakenly believe that ADA re-
quires businesses to make all sorts of prohibitively
expensive changes or else face stiff penalties. The
truth is that ADA is designed to benefit the disabled,
not to punish business owners. The key to under-
standing ADA is knowing what is and is not required,
as well as what constitutes an acceptable accommo-
dation.
Before ADA
In years past, ‘‘disability’’ was not something peo-
ple dealt with publicly; it was understood that those
who were blind, deaf, paralyzed, or otherwise ‘‘hand-
icapped’’ would not participate in ordinary life activi-
ties, such as school or work.
Attitudes changed slowly but steadily, and by the
twentieth century such notable people as Helen Kel-
ler and Franklin D. Roosevelt helped break down ste-
reotypes about disabilities. Accommodating the dis-
abled was another matter. Only important public
figures such as Roosevelt (who could not stand or
walk unaided after his 1921 bout with polio) could
expect that structural accommodations would be
made for them, and even then those accommoda-
tions were limited in scope. There were simply some
places that the disabled could not visit freely.
Architectural Barriers Act
Although most people think that ADA was the first
federal law regulating public facilities, in fact it was
an earlier law that set the stage. The Architectural
Barriers Act (ABA) was passed in 1968, and it mandat-
ed that any buildings designed, constructed, altered,
or leased with federal funding had to be accessible
to the disabled. This included post offices, national
parks, some schools, some public housing, and mass
transit systems. Because it dealt only with federally
GALE ENCYCLOPEDIA OF EVERYDAY LAW 5
funded structures, it was (and still is) less well known
than ADA, but it was an important early step.
Rehabilitation Act of 1973
As important as ABA was, it was met with a certain
degree of apathy that undermined its effectiveness.
Congress, eager to improve ABA compliance and
equally eager for the government to create new and
more comprehensive design standards, passed the
Rehabilitation Act in 1973. Perhaps the most impor-
tant element of this law was Section 502, which es-
tablished the Architectural and Transportation Barri-
ers Compliance Board (later called simply the Access
Board). Originally created to develop as well as en-
force design requirements, its role later became
more focused on ensuring compliance. Beginning in
1976, the Access Board started investigating ABA
non-compliance complaints against a variety of pub-
lic buildings. The law covers any facility that was de-
signed, built, altered, or leased with federal funds
after 1969.
Uniform Federal Accessibility Standard
(UFAS)
The design requirements that are supposed to be
followed under ABA are spelled out by the Uniform
Federal Accessibility Standard (UFAS), which was
first published in 1984. These guidelines served as a
precursor of sorts to guidelines later introduced
under ADA. Today, some government agencies re-
quire compliance with both the ADA guidelines and
UFAS.
ADA and Title III
The Americans with Disabilities Act was signed
into law on July 26, 1990. Title I of the law covers
places of employment; Title II state and local govern-
ments. Title IV covers telecommunications for the
deaf and hearing-impaired, and Title V covers miscel-
laneous items. The section of ADA that deals with
public facilities, is Title III.
Public accommodations include any building or
outdoor space through which any person can enter,
with or without a fee. Essentially, that means all
buildings except for ‘‘private’’ clubs (any club that re-
quires members to vote to admit an individual) and
religious facilities. Among the facilities covered as
listed by ADA are the following:
• Lodgings (hotels, motels, inns)
• Establishments that serve food and drink
(restaurants, bars, taverns)
• Establishments that offer entertainment
(theaters, stadiums)
• Places where public gatherings may be held
(auditoriums, convention halls)
• Sale or rental establishments (retail stores)
• Service establishments (medical offices, law
offices, funeral parlors)
• Places of public display or collection (muse-
ums, galleries, public gardens)
• Social service centers (homeless shelters,
day care centers)
• Recreation/exercise establishment (golf
courses, gymnasiums)
It is important to understand not only which facili-
ties are covered under ADA, but also who is consid-
ered disabled. Under ADA guidelines, anyone who
possesses a physical or mental impairment that sig-
nificantly limits at least one major life function—for
example, the ability to feed oneself, the ability to
walk, or the ability to breathe on one’s own. Alcohol-
ics and other substance abusers are also covered if
they have been shown to have a history of such
abuse.
A public accommodation is expected to follow
three basic guidelines under Title III of ADA. First, it
cannot deny goods or services to a disabled person
covered under the legislation. Second, it cannot sat-
isfy its commitment to the legislation by offering ben-
efits that are separate or unequal. Finally, it must
offer all services in as integrated a setting as possible.
This kind of wording frightens some owners of
public facilities. Retail store owners, for example,
sometimes fear that Title III compliance means hav-
ing to make expensive structural changes to their
stores or keep people on staff to accommodate all
possible disabilities. Would a small company have to
install an elevator in its building? Does a restaurant
have to make Braille menus and sign-language inter-
preters available?
In fact, ADA’s Title III guidelines do offer a certain
degree of leeway for facilities, but that leeway is de-
pendent on a number of factors including cost and
a facility’s special needs.
Physical Accommodations
Under Title III, any new building first occupied
after January 26, 1993 is required to meet full ADA
standards (unless the building plans had been com-
AMERICANS WITH DISABILITIES ACT—PUBLIC FACILITY ACCOMMODATIONS
6 GALE ENCYCLOPEDIA OF EVERYDAY LAW
pleted before January 26, 1992). The following are
among the requirements that new buildings are ex-
pected to meet:
• Doorways must be wide enough to accom-
modate wheelchairs; doors must be easy to
open
• Restrooms must be equipped with ade-
quately wide stalls, grab bars, and sinks and
towel dispensers easily accessible for some-
one in a wheelchair
• Pay phones must be provided at more than
one height, and phones with amplifiers
should also be available
• Adequate parking spaces should be set aside
to accommodate disabled patrons
• Elevators must have Braille numbers and vi-
sual as well as audible operation signals
• Alarm systems must be audible and visible
Existing facilities that are being remodeled (and in
some cases those that are not) must make sure that
alterations are ADA-compliant, as long as such
changes are deemed reasonable, or, in the words of
the legislation, ‘‘readily achievable.’’ An alteration is
deemed readily achievable when it can be done rela-
tively easily and without much expense. It might not
be structurally or economically feasible for a public
facility with no elevator to install one, for example,
but it probably is feasible to install ramps, handrails,
and grab bars. Shelving in stores, telephones mount-
ed lower on the wall, soap dispensers in bathrooms,
and brighter lights are all things that can be added
with little difficulty or undue expense. In cases in
which alterations are difficult or impossible, alterna-
tives can be incorporated instead. Examples include
providing taped lectures of inaccessible gallery ex-
hibits or providing a water cooler or reachable paper
cups instead of installing a new accessible drinking
fountain
As for new buildings, the costs of incorporating
ADA-compliant accessibility features has been esti-
mated to be less than one percent of overall con-
struction costs. Thus, it is unlikely that the owners
of a building currently under construction would be
able to make a case against accessibility. Nor should
they want to; as more disabled people enter both the
consumer market (as tourists, for example) and the
workforce, it benefits building owners to make their
structures ADA-compliant.
Auxiliary Accommodations
A special accommodation category exists for
those with visual and hearing impairments. The
‘‘auxiliary accommodations’’ are designed to make it
easier to communicate with people who have diffi-
culty seeing or hearing. Among the accommodations
ADA can recommend are the following:
• Interpreters who speak sign language
• Special listening devices and headsets
• Texts in large print and Braille, or recorded
on tape
• TDD/TTY text telephones for those with
hearing impairments
As with physical alterations, auxiliary accommoda-
tions are not designed to create an undue burden on
the building owner. Nor are they meant to alter the
nature of goods or services offered by the public fa-
cility in question. For example, a museum whose art
works are too delicate to be handled may implement
a ‘‘no touch’’ policy, even though it means that cer-
tain blind people may not be able to enjoy the exhibit
fully.
Stores are not required to have signs or price tags
in Braille, nor do they need to have a sign language
interpreter on staff. As long as an employee can read
price tags and similar information to blind shoppers,
and as long as store employees can communicate
with deaf customers by writing out notes, there is no
requirement for businesses to incur the expense of
extra assistance.
Actually, many auxiliary accommodations can be
made quite inexpensively. Most ordinary computer
programs can be set to display and print in large
type, for example. TDD/TTY telephone units
equipped with printers cost about $500, which most
fair-sized businesses could afford with little difficulty.
Other Accommodations
There are a number of other accommodations
that in general are cost-effective to implement. For
example, restaurants that need to make more room
for wheelchairs may be required to move their tables
around; unless they had to remove a significant num-
ber of tables and thus lose business, this should not
be a burden. (In fact, many restaurants add or re-
move tables for certain events as a matter of course.)
Some stores may have to relocate display racks for
the same reason. Outdoor cafes that crowd side-
walks may be required to reduce the number of ta-
bles or increase the space between them. Large
AMERICANS WITH DISABILITIES ACT—PUBLIC FACILITY ACCOMMODATIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 7
plants, whether indoors or outdoors, may need to be
moved to make room for disabled individuals.
Enforcing the Law
In the 25-year period from 1976 to 2001, the Ac-
cess Board investigated more than 3,300 complaints
against public facilities, including post offices, mili-
tary facilities, veterans hospitals federal courthouses,
and prisons. In general, the Board works with the fa-
cility to find ways to bring it into compliance. One ex-
ample is the Holocaust Memorial Museum in Wash-
ington, D.C. A group of children with varying degrees
of hearing impairment were touring the museum
when the fire alarm went off. Because the students
actually thought the alarms were part of the exhibit,
and because they could not hear the evacuation no-
tices, there was potential for serious consequences.
A complaint was filed with the Access Board, which
worked with the museum to install new alarms that
offered a more distinct and distinguishable signal.
Another example is a homeless shelter in Phoenix,
Arizona. Although rest rooms in the shelter had been
renovated twice using federal funds, they were still
not ADA compliant. The Access Board worked suc-
cessfully with the shelter to address the issue and
make the rest rooms compliant.
Those who feel that a public facility is in violation
of Title III may file their complaints with the U.S. De-
partment of Justice. In cases of repeat violations, the
Department has authorization to bring lawsuits
against offenders, although the more desired out-
come would be correction of the problem with the
help of groups such as the Access Board. The Depart-
ment of Justice web site that handles ADA issues is
http://www.usdoj.gov/crt/ada/adahom1.htm.
Additional Resources
The ADA: A Review of Best Practices Jones. Timothy L.,
American Management Association, Periodicals Divi-
sion, 1993.
Equality of Opportunity: The Making of ADA. Young,
Jonathon M., National Council on Disability, 1997. Jor-
dan I. Kosberg, ed., Wright-PSG, 1983.
The New ADA: Compliance and Costs. Kearney, Deboral
S., R.S. Means, 1992.
Organizations
Access Board
1331 F Street NW, Suite 1000
Washington, DC 20004 USA
Phone: (202) 272-0080
Fax: (202) 272-0081
URL: http://www.access-board.gov
Primary Contact: Pamela Y. Holmes, Chair
Council for Disability Rights
205 West Randolph Street, Suite 1645
Chicago, IL 60606 USA
Phone: (312) 444-9484
Fax: (312) 444-1977
URL: http://www.disabilityrights.org
Primary Contact: Jo Holzer, Executive Director
U. S. Department of Justice, Civil Rights
Division, Office of Disability Rights
950 Pennsylvania Avenue NW
Washington, DC 20530 USA
Phone: (202) 307-2227
Fax: (202) 307-1198
URL: http://www.usdoj.gov/crt/drs/drshome.htm
Primary Contact: John L. Wodatch, Chief
U. S. Equal Employment Opportunity
Commission (EEOC)
1801 L Street NW
Washington, DC 20507 USA
Phone: (202) 663-4900
Fax: (202) 663-4494 (TTY)
URL: http://www.eeoc.gov
Primary Contact: Cari M. Dominguez, Chair
AMERICANS WITH DISABILITIES ACT—PUBLIC FACILITY ACCOMMODATIONS
8 GALE ENCYCLOPEDIA OF EVERYDAY LAW
AMERICANS WITH DISABILITIES ACT
WORK ACCOMMODATIONS
Sections within this essay:
• Background
• Rationale
• Reasonable Accommodations
• Procedure
• Types of Reasonable Accommodations
• Additional Resources
Background
In the United States, approximately 43 million
people have physical or mental disabilities or impair-
ments that substantially limit major life activities. In
an effort to avoid DISCRIMINATION against disabled
people in the workplace, Congress enacted in July of
1990 the Americans with Disabilities Act (ADA). One
way that the ADA seeks to improve employment op-
portunities for disabled people is by requiring em-
ployers under certain circumstances to alter the
workplace to accommodate disabilities. These alter-
ations are known as workplace accommodations.
Rationale
Just like individuals of different races, colors, reli-
gions, gender, or national origin, individuals with
physical or mental disabilities historically have faced
discrimination. Disabled people have been excluded
from mainstream society, segregated, provided with
inferior or unequal services, and denied benefits that
non-disabled people enjoy. What is different about
the discrimination of disabled people as compared
to other types of discrimination is that there is often
a rational basis for treating disabled people different-
ly from able-bodied people. Whereas there is usually
no rational basis for treating, for example, a woman
from South Africa differently from a woman from the
United States, there may be a rational basis for treat-
ing a woman who is blind differently from a woman
with good vision. The visually impaired woman may
require the use of Braille, for example.
Another difference in DISABILITY discrimination is
its intent. Many types of discrimination, such as racial
discrimination, are rooted in hostility or hatred to-
ward people who are different. But discrimination
against disabled individuals more often is rooted in
ignorance or apathy. Some people view disabilities
with pity or discomfort, leading to behavior that may
patronize people with disabilities. Other people sim-
ply fail to consider or understand the needs of dis-
abled people, leading to benign neglect or misguid-
ed efforts to assist.
The U. S. Constitution does little to protect those
with mental or physical disabilities from discrimina-
tion. Courts historically have not applied the Consti-
tution’s EQUAL PROTECTION Clause to discrimination
of DISABLED PERSONS with the same level of scrutiny
as discrimination of such protected classes as race,
religion, and gender. People with disabilities, there-
fore, had little or no recourse when their disabilities
unfairly prevented them from getting suitable jobs.
Only two-thirds of employable disabled persons in
the United States were employed in the late 1980s,
and many of those employed were not working to
their full capacity to earn given their disabilities. By
1990, more than 8 million disabled individuals were
GALE ENCYCLOPEDIA OF EVERYDAY LAW 9
unemployed and forced to live on welfare and other
forms of government assistance. Congress began en-
acting federal laws in the 1960s designed to protect
disabled people, but these laws did not outlaw dis-
ability discrimination by employers. Such protec-
tions did not enter the workplace until the 1990 pas-
sage of the ADA.
The ADA prohibits private and state and local gov-
ernment employers, as well as employment agencies
and labor unions, from discriminating on the basis of
disability. It does not apply to private employers with
fewer than 15 employees. The ADA prohibits several
specific forms of disability discrimination. One exam-
ple of an ADA violation occurs when an employer
fails to make reasonable accommodations to allow
disabled workers to work.
Reasonable Accommodations
The ADA requires employers to make reasonable
accommodations to qualified persons with disabili-
ties unless such accommodations would cause an
undue hardship to the employer. A disabled person
under the ADA is someone who is substantially limit-
ed in the ability to perform a major life activity or
who has a record of such an impairment or who is
regarded as having such an impairment. To be quali-
fied as a disabled person under the ADA, an individu-
al must show an ability to perform all of the essential
job functions either with or without a reasonable ac-
commodation. Courts look at mitigating measures in
determining whether an individual is disabled. For
example, persons who need eyeglasses may be sub-
stantially limited in the ability to read, which is a
major life activity, unless they wear eyeglasses. Be-
cause eyeglasses mitigate their bad vision and allow
them to read normally, they are not considered to
disabled under the ADA.
There are three general types of reasonable ac-
commodations. The first type modifies the job appli-
cation process to enable qualified job applicants with
a disability to be considered for the job they want.
The second type modifies the work environment or
the manner in which the job is performed to allow
disabled individuals to perform the job’s essential
functions. The third type modifies the workplace to
allow disabled employees equal benefits and privi-
leges as similarly situated employees without disabili-
ties.
More specific types of reasonable accommoda-
tions may include making an office wheelchair acces-
sible; restructuring jobs; providing part-time or mod-
ified work schedules; modifying or purchasing
special furniture or equipment; changing employ-
ment policies; providing readers or interpreters; and
reassigning disabled individuals to vacant positions.
An employer is not required to eliminate an essential
job function or fundamental duty of the job to ac-
commodate a disabled person. An employer is not
required to lower production quotas or standards
that apply to all employees, although an employer is
required to provide reasonable accommodations to
help a disabled individual meet production quotas or
standards. An employer is not required to provide
disabled employees with personal use items that are
necessary both on and off the job, for example, hear-
ing aids.
The ADA does not require that reasonable accom-
modations be made when the accommodations
would cause employers an undue hardship. Undue
hardship means significant difficulty or expense
when compared with the employer’s resources and
circumstances. The employer’s financial capabilities
are one factor in defining undue hardship, but undue
hardship also occurs when the reasonable accommo-
dation would be unduly extensive or disruptive or
would fundamentally alter the nature or operation of
the business. Courts determine on a case-by-case
basis whether a reasonable accommodation would
be an undue hardship for the employer.
Procedure
Individuals who want a reasonable accommoda-
tion must request it but need not mention the ADA
or the phrase ‘‘reasonable accommodation.’’ It is suf-
ficient if employees simply ask for an accommoda-
tion for a medical reason. Once a request is made,
employers are obligated to investigate the request
and determine if the requesting employee is quali-
fied as a disabled individual under the ADA. If that
determination is positive, then the employer must
begin an interactive process with that employee, de-
termining that individual’s needs and identifying the
accommodation that should be made. Sometimes
this is an easy process with both sides agreeing on
the reasonable accommodation. Other times, the in-
teractive process can be complicated and conten-
tious.
Sometimes, employers do not know about or un-
derstand the disability enough to determine a rea-
sonable accommodation. In these cases, employers
are entitled to obtain documentation, such as medi-
AMERICANS WITH DISABILITIES ACT—WORK ACCOMMODATIONS
10 GALE ENCYCLOPEDIA OF EVERYDAY LAW
cal records or a letter from a doctor, to learn about
the disability, its functional limitations, and the sort
of accommodation that needs to be made. Alterna-
tively, employers may simply ask the requesting em-
ployee about the disability and limitations. Unless
the disability is obvious, that employee must provide
the employer with sufficient information about the
disability to help the employer determine a reason-
able accommodation.
As long as the reasonable accommodation is effec-
tive in allowing the disabled individuals to perform
their job functions and receive the same benefits as
other, non-disabled individuals, then employers
have the right to choose among reasonable accom-
modation options. Employers may choose options
that are cheaper or easier to provide, for example. If
employers offer disabled employees reasonable ac-
commodations that employees do not want, the em-
ployers may not force the employees to accept the
accommodations. If, however, the employee’s refus-
al of the reasonable accommodation results in the in-
dividual’s inability to perform the essential functions
of the job, the employee may be deemed unqualified
for the job. The employer may then be justified in
terminating the employee.
During the hiring process, employers are not per-
mitted to ask whether job applicants require a rea-
sonable accommodation unless an applicant’s dis-
ability is obvious, such as an applicant who uses a
wheelchair, or unless the applicant voluntarily in-
forms the employer about the disability. If the em-
ployer offers the applicant a job, it is with the condi-
tion that the applicant is able to perform the
essential job functions either with or without a rea-
sonable accommodation. Once the applicant re-
ceives the job offer, the employer may inquire about
the necessity of reasonable accommodations.
The ADA also mandates that employees with dis-
abilities be permitted to enjoy the same benefits and
privileges of employment as non-disabled employees
enjoy. Therefore, employers must provide reason-
able accommodations to allow the disabled worker
to gain access to such privileges as workplace cafete-
rias or lounges, gyms or health clubs, training pro-
grams, credit unions, transportation, or any other
perk offered to non-disabled employees. A blind em-
ployee, for example, would not be able to read em-
ployment related notices placed on bulletin boards.
In that case, the employer would have to provide a
reasonable accommodation, such as sending that
employee telephone messages.
Types of Reasonable Accommodations
An employer may restructure or modify a job as
a reasonable accommodation for an employee with
a disability. Job restructuring may include reallocat-
ing job functions or trading certain job functions that
are difficult or impossible for the disabled worker
with other job functions of a non-disabled worker. A
disabled secretary who cannot climb stairs, for exam-
ple, may be able to fulfill the essential functions of
the job but cannot easily retrieve files from the up-
stairs storage room. In this case, an appropriate ac-
commodation would be to assign the disabled work-
er additional filing duties and require an able-bodied
co-worker to actually retrieve the files.
A disabled worker may be entitled to a paid or un-
paid leave of absence from the job as a reasonable
accommodation for such reasons as the worker’s
need for surgery or other medical treatment, the
worker’s recovery from illness related to the disabili-
ty, or the worker’s education or training related to
the disability. An employer does not have to pay the
disabled worker during a disability-related leave of
absence beyond the employer’s own policy regard-
ing sick pay or vacation pay. The employer is re-
quired to hold open the disabled worker’s job during
the leave of absence, but the employer may demon-
strate that holding open the position for an extended
period would constitute an undue hardship. In the
event of undue hardship, the employer can fill the
disabled worker’s position with another employee
but then must try to identify an equivalent position
for the disabled worker when the leave of absence
ends.
Unless doing so would cause an undue hardship
to the employer, the employer must allow a disabled
worker the option of a modified or part-time work
schedule if required by the disability. This may be
necessary for individuals who need medical treat-
ment periodically. Another type of job modification
involves workplace policies. An employer who pro-
hibits workers from eating or drinking at their work-
stations may amend that policy for a worker with a
disability that requires this worker to eat or drink at
specific times of the day. An employer who requires
employees to work at the employer’s office rather
than at home may alter the policy if a disabled work-
er can perform the essential job functions from
home but cannot perform them at the office.
An employer may claim that undue hardship pre-
vents the provision of reasonable accommodations,
but undue hardship is not easy to prove. The em-
AMERICANS WITH DISABILITIES ACT—WORK ACCOMMODATIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 11
ployer must demonstrate that the specific reasonable
accommodation being considered would cause sig-
nificant difficulty or expense. The determination of
undue hardship is made on a case-by-case basis, and
courts consider such factors as the type and cost of
the accommodation, the financial resources of the
employer, the number of employees, and the overall
impact of the accommodation on the employer’s op-
eration. An employer cannot claim undue hardship
resulting from fears or prejudices about an individu-
al’s disability or fears that an accommodation would
result in a morale problem with co-workers. An em-
ployer may, however, demonstrate undue hardship
if an accommodation would unduly disrupt the work
of other employees.
Additional Resources
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
ADA Disability and Business Technical
Assistance Centers USA
Toll-Free: 800-949-4232
Job Accommodation Network (JAN)
PO Box 6080
Morgantown, WV 26506-6080 USA
Phone: 800-232-9675
URL: http://janweb.icdi.wvu.edu/
U. S. Equal Employment Opportunity
Commission
1801 L Street, NW
Washington, DC 20507 USA
Phone: 800-669-3362
URL: www.eeoc.gov
AMERICANS WITH DISABILITIES ACT—WORK ACCOMMODATIONS
12 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ATTORNEYS
ATTORNEY-CLIENT PRIVILEGE
Sections within this essay:
• Background
• The Elements, Scope, Application of the At-
torney-Client Privilege
- Elements of the Attorney-Client Privi-
lege
- Scope and Application of the Attor-
ney-Client Privilege
• State Rules Governing Attorney-Client Privi-
lege
• Additional Resources
Background
The ATTORNEY-CLIENT PRIVILEGE is an evidentiary
rule that protects both attorneys and their clients
from being compelled to disclose confidential com-
munications between them made for the purpose of
furnishing or obtaining legal advice or assistance.
The privilege is designed to foster frank, open, and
uninhibited discourse between attorney and client
so that the client’s legal needs are competently ad-
dressed by a fully prepared attorney who is cognizant
of all the relevant information the client can provide.
The attorney-client privilege may be raised during
any type of legal proceeding, civil, criminal, or ad-
ministrative, and at any time during those proceed-
ings, pre-trial, during trial, or post-trial.
The privilege dates back to ancient Rome, where
governors were forbidden from calling their advo-
cates as witnesses out of concern that the governors
would lose confidence in their own defenders. In
1577 the first evidentiary privilege recognized by the
English COMMON LAW was the attorney-client privi-
lege. The English common law protected the confi-
dential nature of attorney-client communications, re-
gardless of whether those communications took
place in public or in private. The American colonies
adopted this approach to the attorney-client privi-
lege, and Delaware codified the privilege in its first
constitution in 1776.
The Elements, Scope, and Application of
the Attorney-Client Privilege
Elements of the Attorney-Client Privilege
Because the attorney-client privilege often pre-
vents disclosure of information that would be rele-
vant to a legal proceeding, courts are cautious when
examining objections grounded in the privilege.
Most courts generally require that certain elements
be demonstrated before finding that the privilege ap-
plies. Although the elements vary from JURISDICTION
to jurisdiction, one often cited recitation of the ele-
ments was articulated in U.S. v. United Shoe Ma-
chinery Corp., 89 F.Supp. 357 (D.Mass. 1950), where
the court enumerated the following five-part test: (1)
the person asserting the privilege must be a client or
someone attempting to establish a relationship as a
client; (2) the person with whom the client commu-
nicated must be an attorney and acting in the capaci-
ty as an attorney at the time of the communication;
(3) the communication must be between the attor-
ney and client exclusively; (4) the communication
must be for the purpose of securing a legal opinion,
legal services, or assistance in some legal proceeding,
and not for the purpose of committing a crime or
GALE ENCYCLOPEDIA OF EVERYDAY LAW 13
FRAUD; and (5) the privilege may be claimed or
waived by the client only.
Scope and Application of the Attorney-Client
Privilege
The five-part test is typically the starting point in
a court’s analysis of a claim for privilege. Each ele-
ment appears straight-forward on its face but can be
tricky to apply, especially when the client is a corpo-
ration and not a natural person. CORPORATE clients
raise questions as to who may speak for the corpora-
tion and assert the attorney-client privilege on behalf
of the entity as a whole. Some courts have ruled that
the attorney-client privilege may only be asserted by
the upper management of a corporation. A vast ma-
jority of courts, however, have ruled that the privi-
lege may be asserted not only by a corporation’s offi-
cers, directors, and board members, but also by any
employee who has communicated with an attorney
at the request of a corporate superior for the pur-
pose of obtaining legal advice. Upjohn Co. v. U.S.,
449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584, (U.S.
1981).
Whether the client is a natural person or a corpo-
ration, the attorney-client privilege belongs only to
the client and not to the attorney. As a result, clients
can prevent attorneys from divulging their secrets,
but attorneys have no power to prevent their clients
from choosing to waive the privilege and testifying
in court, talking to the police, or otherwise sharing
confidential attorney-client information with third
parties not privy to the confidential discussions. Cli-
ents may waive attorney-client privilege expressly by
their words or implicitly by their conduct, but a court
will only find that the privilege has been waived if
there is a clear indication that the client did not take
steps to keep the communications confidential. An
attorney’s or a client’s inadvertent disclosure of con-
fidential information to a third party will not normal-
ly suffice to constitute WAIVER. If a client decides
against waiving the privilege, the attorney may then
assert the privilege on behalf of the client to shield
both the client and the attorney from having to di-
vulge confidential information shared during their
relationship.
In most situations, courts can easily determine
whether the person with whom a given conversation
took place was in fact an attorney. However, in a few
cases courts are asked to decide whether the privi-
lege should apply to a communication with an unli-
censed or disbarred attorney. In such instances,
courts will frequently find that the privilege applies
if the client reasonably believes that he or she was
communicating with a licensed attorney. State v. Ber-
berich, 267 Kan. 215, 978 P.2d 902 (Kan. 1999). But
courts in some jurisdictions have relaxed this stan-
dard, holding that the privilege applies to communi-
cations between clients and unlicensed lay persons
who represent them in administrative proceedings.
Woods on Behalf of T.W. v. New Jersey Dept. of
Educ., 858 F.Supp. 51 (D.N.J. 1993).
Although many courts emphasize that the attor-
ney-client privilege should be strictly applied to com-
munications between attorney and client, the attor-
ney-client privilege does extend beyond the
immediate attorney-client relationship to include an
attorney’s partners, associates, and office staff mem-
bers (e.g., secretaries, file clerks, telephone opera-
tors, messengers, law clerks) who work with the at-
torney in the ordinary course of their normal duties.
However, the presence of a third party who is not a
member of the attorney’s firm will sometimes defeat
a claim for privilege, even if that third person is a
member of the client’s family.
Thus, one court ruled that in the absence of any
suggestion that a criminal defendant’s father was a
confidential agent of the DEFENDANT or that the fa-
ther’s presence was reasonably necessary to aid or
protect the defendant’s interests, the presence of the
defendant’s father at a PRETRIAL CONFERENCE between
the defendant and his attorney invalidated the attor-
ney-client privilege with respect to the conference.
State v. Fingers, 564 S.W.2d 579 (Mo.App. 1978). In
the corporate setting, the presence of a client’s sister
defeated a claim for attorney-client privilege that in-
volved a conversation between a client-company’s
president and the company’s attorney, since the sis-
ter was neither an officer nor director of the compa-
ny and did not possess an ownership interest in the
company. Cherryvale Grain Co. v. First State Bank
of Edna, 25 Kan.App.2d 825, 971 P.2d 1204
(Kan.App. 1999).
Many courts have described attorney-client confi-
dences as ‘‘inviolate.’’ Wesp v. Everson, —- P.3d
——, 2001 WL 1218767 (Colo. 2001). However, this
description is misleading. The attorney-client privi-
lege is subject to several exceptions. Federal Rule of
EVIDENCE 501 states that ‘‘the recognition of a privi-
lege based on a confidential relationship... should be
determined on a case-by-case basis.’’ In examining
claims for privilege against objections that an excep-
tion should be made in a particular case, courts will
balance the benefits to be gained by protecting the
sanctity of attorney-client confidences against the
ATTORNEYS—ATTORNEY-CLIENT PRIVILEGE
14 GALE ENCYCLOPEDIA OF EVERYDAY LAW
probable harms caused by denying the opposing
party access to potentially valuable information.
The crime-fraud exception is one of the oldest ex-
ceptions to the attorney-client privilege. The attor-
ney-client privilege does not extend to communica-
tions made in connection with a client seeking
advice on how to commit a criminal or FRAUDULENT
act. Nor will a client’s statement of intent to commit
a crime be deemed privileged, even if the client was
not seeking advice about how to commit it. The at-
torney-client privilege is ultimately designed to serve
the interests of justice by insulating attorney-client
communications made in furtherance of adversarial
proceedings. But the interests of justice are not
served by forcing attorneys to withhold information
that might help prevent criminal or fraudulent acts.
Consequently, in nearly all jurisdictions attorneys
can be compelled to disclose such information to a
court or other investigating authorities.
A party seeking DISCOVERY of privileged communi-
cations based upon the crime-fraud exception must
make a threshold showing that the legal advice was
obtained in furtherance of the fraudulent activity and
was closely related to it. The party seeking disclosure
does not satisfy this burden merely by alleging that
a crime or fraud has occurred and then asserting that
disclosure of privileged communications might help
prove the crime or fraud. There must be a specific
showing that a particular document or communica-
tion was made in furtherance of the client’s alleged
crime or fraud.
The fact that an attorney-client relationship exists
between two persons is itself not typically privileged.
U.S. v. Leventhal, 961 F.2d 936 (11th Cir. 1992). How-
ever, if disclosure of an attorney-client relationship
could prove incriminating to the client, some courts
will enforce the privilege. In re Michaelson, 511 F.2d
882 (9th Cir. 1975). Names of clients and the
amounts paid in fees to their attorneys are not nor-
mally privileged. Nor will clients usually be successful
in asserting the privilege against attorneys who are
seeking to introduce confidential information in a
lawsuit brought by a client accusing the attorney of
wrongdoing. In such instances courts will not allow
clients to use the attorney-client privilege as a weap-
on to silence the attorneys who have represented
them. Courts will allow both parties to have their say
in MALPRACTICE suits brought by clients against their
former attorneys.
State Rules Governing Attorney-Client
Privilege
The body of law governing the attorney-client
privilege is comprised of federal and state legislation,
court rules, and CASE LAW. Below is a sampling of
state court decisions decided at least in part based
on their own state’s court rules, case law, or legisla-
tion.
ARKANSAS: Attempts by both an attorney and his
secretary to communicate with the client regarding
his pending criminal case were protected by the at-
torney-client privilege. Rules of Evid., Rule 502(b).
Byrd v. State, 326 Ark. 10, 929 S.W.2d 151 (Ark.
1996).
ALABAMA: Where a defendant asserted that his guilty
pleas to robbery charges were the product of his de-
fense counsel’s COERCION, the absence of the defense
counsel’s TESTIMONY to rebut the defendant’s testi-
mony could not be excused by any assertion of the
attorney-client privilege. Walker v. State, 2001 WL
729190 (Ala.Crim.App., 2001).
ARIZONA: By asserting that its personnel understood
the law on stacking coverage for under insured and
uninsured motorist claims, the insurer affirmatively
injected legal knowledge of its claims managers into
the insureds’ BAD FAITH action and thus effectively
waived the attorney-client privilege as to any com-
munications between the insurer and its COUNSEL re-
garding the propriety of the insurer’s policy of deny-
ing coverage. State Farm Mut. Auto. Inc. Co. v. Lee,
199 Ariz. 52, 13 P.3d 1169 (Ariz. 2000).
CALIFORNIA: The attorney-client privilege is not lim-
ited to litigation-related communications, since the
applicable provisions of the state Evidence Code do
not use the terms ‘‘litigation’’ or ‘‘legal communica-
tions’’ in their description of privileged disclosures
but instead specifically refer to ‘‘the accomplishment
of the purpose’’ for which the lawyer was consulted.
West’s Ann.Cal.Evid.Code §§ 912, 952. STI Outdoor
v. Superior Court, 91 Cal.App.4th 334, 109
Cal.Rptr.2d 865 (Cal.App. 2 Dist. 2001).
ILLINOIS: To prevail on an attorney-client privilege
claim in a corporate context, a claimant must first
show that a statement was made by someone in the
corporate control group, meaning that group of em-
ployees whose advisory role to top management in
a particular area is such that a decision would not
normally be made without their advice or opinion
and whose opinion, in fact, forms the basis of any
ATTORNEYS—ATTORNEY-CLIENT PRIVILEGE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 15
final decision by those with actual authority. Hayes
v. Burlington Northern and Santa Fe Ry. Co., 323
Ill.App.3d 474, 752 N.E.2d 470, 256 Ill.Dec. 590
(Ill.App. 1 Dist. 2001).
MAINE: Counsel’s inadvertent disclosure of a memo-
randum to opposing counsel, which summarized a
telephone conference between counsel and his cli-
ent, did not constitute a waiver of the attorney-client
privilege, where the document was mistakenly
placed in boxes of unprivileged documents that were
available to opposing counsel to photocopy and the
memorandum in question was labeled ‘‘confidential
and legally privileged.’’ Corey v. Norman, Hanson &
DeTroy, 742 A.2d 933, 1999 ME 196 (Me. 1999).
MASSACHUSETTS: Hospital personnel were neither
the defendant’s nor his attorney’s agents when they
conducted a blood-alcohol test on the defendant at
the attorney’s request for sole purpose of gathering
potentially exculpatory evidence, and thus the state’s
GRAND JURY SUBPOENA of the test results did not vio-
late the attorney-client privilege. Commonwealth v.
Senior, 433 Mass. 453, 744 N.E.2d 614 (Mass. 2001).
MICHIGAN: A Court of Appeals reviews de novo a de-
cision regarding whether the attorney-client privi-
lege may be asserted. Koster v. June’s Trucking, Inc.,
244 Mich.App. 162, 625 N.W.2d 82 (Mich.App. 2000).
MINNESOTA: The presence of the defendant’s wife
at a joint meeting in which the defendant, his attor-
ney, and his wife discussed financial aspects of a pos-
sible DIVORCE prevented the attorney-client privilege
from attaching. State v. Rhodes, 627 N.W.2d 74
(Minn. 2001).
NEW JERSEY: The person asserting the attorney-
client privilege bears the burden to prove it applies
to any given communication. Horon Holding Corp.
v. McKenzie, 341 N.J.Super. 117, 775 A.2d 111
(N.J.Super.A.D. 2001)
NEW YORK: A client’s intent to commit a crime is not
a protected confidence or secret for the purposes of
the attorney-client privilege. N.Y.Ct.Rules, § 1200.19.
People v. DePallo, 96 N.Y.2d 437, 754 N.E.2d 751,
729 N.Y.S.2d 649 (N.Y. 2001).
NORTH DAKOTA: A communication is confidential,
for the purposes of determining the applicability of
attorney-client privilege, if it is not intended to be
disclosed to persons other than those to whom the
disclosure is made during the course of rendering
professional legal services or to those reasonably
necessary for transmission of the communication
during the course of rendering professional legal ser-
vices. Rules of Evid., Rule 502(a)(5). Farm Credit
Bank of St. Paul v. Huether, 454 N.W.2d 710 (N.D.
1990).
OHIO: The attorney-client privilege is not absolute,
and thus the mere fact that an attorney-client rela-
tionship exists does not raise a presumption of confi-
dentiality of all communications made between the
attorney and client. Radovanic v. Cossler, 140 Ohio
App.3d 208, 746 N.E.2d 1184 (Ohio App. 8 Dist.
2000).
TEXAS: Physicians who were defending against a
malpractice action were not entitled to discover,
under fraud exception to attorney-client privilege,
material relating to a SETTLEMENT between the plain-
tiffs and another defendant, although the physicians
alleged that disparate distribution of the settlement
proceeds was a sham intended to deprive the physi-
cians of settlement credit, since there was no evi-
dence that the plaintiffs made or intended to make
hidden distributions. Vernon’s Ann.Texas Rules
Civ.Proc., Rule 192.5(a); Rules of Evid., Rule
503(d)(1). IN RE Lux, 52 S.W.3d 369 (Tex.App. 2001).
WASHINGTON: The federal constitutional founda-
tion for the attorney-client privilege is found in the
Fifth Amendment PRIVILEGE AGAINST SELF-
INCRIMINATION, the Sixth Amendment right to coun-
sel, and the Due Process Clause of the Fourteenth
Amendment, as these rights can be protected only if
there is candor and free and open discussion be-
tween client and counsel. U.S.C.A. Const.Amends. 5,
6, 14. In re Recall of Lakewood City Council Mem-
bers, 144 Wash.2d 583, 30 P.3d 474 (Wash. 2001).
Additional Resources
American Jurisprudence. West Group, 1998.
http://cyber.lp.findlaw.com/privacy/attorney_
client.htmlFindLaw: CyberSpace Law Center: Privacy:
Attorney-Client Privilege.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Bar Association
740 15th Street, N.W.
Washington, DC 20005-1019 USA
Phone: (202) 662-1000
Fax: (816) 471-2995
URL: http://www.abanet.org
Primary Contact: Robert J. Saltzman, President
ATTORNEYS—ATTORNEY-CLIENT PRIVILEGE
16 GALE ENCYCLOPEDIA OF EVERYDAY LAW
National Lawyers Association
P.O. Box 26005 City Center Square
Kansas City, MO 64196 USA
Phone: (800) 471-2994
Fax: (202) 662-1777
URL: http://www.nla.org
Primary Contact: Mario Mandina, Chief Executive
Officer
National Organization of Bar Counsel
515 Fifth Street, N.W.
Washington, DC 64196 USA
Phone: (202) 638-1501
Fax: (202) 662-1777
URL: http://www.nobc.org
Primary Contact: Robert J. Saltzman, President
ATTORNEYS—ATTORNEY-CLIENT PRIVILEGE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 17
This Page Intentionally Left Blank
ATTORNEYS
HOW TO FIND AN ATTORNEY
Sections within this essay:
• Background
- Why is it so Difficult to Find an Attor-
ney?
- When Do I Need A Lawyer?
- Avoiding the Dishonest or Unethical
Lawyers
• Methods of Finding an Attorney
- By Advertisements
- By Published Directories
- By Internet
- By Lawyer Referral Services of State
Bar Associations
• Questions to Ask Before Retaining a Lawyer
• Additional Resources
Background
When the United States handed down its decision
in Bates v. State Bar of Arizona which struck down
state laws prohibiting lawyers from advertising as an
unconstitutional interference with free speech, it was
widely thought that it would then be easier to find
an attorney. This belief was based on the premise
that since lawyers were allowed to compete in the
same way as other businesses do, it would be easier
to meet one’s needs for legal representation and that
the costs would go down.
It is true that lawyer advertising has made it easier
to find an attorney. However, there is still a problem
in finding the right attorney for one’s particular
needs. If the selected lawyer is inexperienced, in-
competent, or lacks the willingness or ability to com-
municate effectively with a client, the client will not
be satisfied with the lawyer’s service. Furthermore,
the consequences for the client could be catastroph-
ic, such as losing a business or being unable to recov-
er for injuries the client sustained at the hands of a
liable third party. In order to find the best attorney,
one needs more than a list of names, even if these
are specialists in the relevant legal area. Clients are
best served by asking questions before they decide
on an attorney to retain.
Consumer dissatisfaction with lawyers has be-
come a major problem. A survey taken in 1995 by
Consumer’s Union revealed that out of 30,000 re-
spondents, one–third were not well satisfied with the
quality of their attorneys’ services. The reasons for
this dissatisfaction varied, ranging from attorneys fail-
ing to keep their clients informed on the progress of
their cases, failing to protect clients’ interests, failing
to resolve cases in a timely manner, and continually
charge unreasonable fees. The reason for this wide-
spread dissatisfaction is linked to the lack of knowl-
edge by consumers on how to find attorneys experi-
enced with the kinds of problems they are facing as
well as knowing what questions to ask a lawyer they
are considering retaining. The results of a one thou-
sand person survey reported in the Florida Bar Jour-
nal revealed that the average time spent in finding a
lawyer was two hours or less. Nearly one half of those
surveyed said it was hard to find a good lawyer, and
over a quarter of them said they did not know how
to find a lawyer. It is remarkable that 80 per cent of
respondents said they wished there was a source for
information on lawyers’ credentials.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 19
Why It Is Difficult to Find an Attorney?
One difficulty in finding the appropriate attorney
is the ever expanding number of specialties practiced
by lawyers. Specialization makes selection more
complicated. Law has become more specialized be-
cause changes in technology have necessitated the
development of new areas, such as Cyberlaw and In-
ternet law. New areas of law have also been created
by recently enacted laws and regulations from such
federal administrative bodies as the Environmental
Protection Agency. This could impact and compli-
cate the problems of a person acquiring a business
and trying to determine whether the seller or the
buyer is liable for cleaning up a toxic waste site. The
increasing number of laws and regulations have
forced lawyers to become more specialized in order
to keep up with new developments. Furthermore,
many general areas of the law in which an attorney
could become proficient, have now been split up
into specialties. In business law, there are specialists
for mergers and acquisitions because of the com-
plexity involved in these transactions. Even criminal
law is not immune to this trend since some lawyers
now specialize in white collar crime.
When Do I Need A Lawyer?
Potential clients should retain a lawyer for any of
the following reasons:
• If they have been charged with a felony
• If they have been served with papers naming
them as defendants in a lawsuit
• If their insurance coverage is less than the
amount a third party is claiming due to their
negligence
• If they are making a will or changing it
• If they wish to adopt a child
• If someone with whom they are involved in
a business setting breaches his or her con-
tract with the client
• If they are resulting in substantial harm, or
if the person suing them has a lawyer.
If a person is a DEFENDANT in a civil lawsuit and fails
to appear in court, a DEFAULT JUDGMENT will be en-
tered by the court against them, and for all practical
purposes, they will be unable to overturn it.
Avoiding the Dishonest or Unethical Lawyers
This situation is easy to fall into because with the
exception or Oregon, at least some part of the disci-
plinary process is kept private. This means that po-
tential clients have no way of knowing whether a
complaint has been made against a lawyer if no ac-
tion has been taken. Although some complaints
against lawyers are frivolous, the consumer has no
way of knowing whether the decision by the state bar
not to take any action was made in GOOD FAITH. Fur-
thermore, the action taken may only amount to a pri-
vate reprimand in the form of a letter sent to the at-
torney. According to a recent investigation by the
Washington Times, lawyers guilty of serious ethical
violations and felonies are at the most only suspend-
ed for a limited period of time and made to make
RESTITUTION to the client. Even the most severe pun-
ishment, disbarment, is not permanent since in most
states the attorney can apply for reinstatement in five
years.
Not only are the actions taken against lawyers
found guilty of ethical violations not published in
many states, this information is unavailable even in
publications and databases relied upon by consum-
ers to avoid this problem. There are attorneys listed
in the well–respected Martindale–Hubbell Lawyers
Directory who may be under suspension, disbarred,
or imprisoned. The database set up by the American
BAR ASSOCIATION (ABA) to allow consumers to find
out whether a lawyer has been sanctioned is a great
deal less than helpful since no details are given as to
the offense charged or the punishment given.
Out of all the complaints made against lawyers,
only one half of one per cent result in disbarment,
and a total of only one and one half percent result
in any SANCTION at all including private reprimands.
Methods of Finding an Attorney
By Advertisement
In an advertisement, consumers cannot obtain
the information you need in order to make a wise de-
cision. There is nothing upon which to judge the
legal skills of the attorney, whether his style would
be conducive to achieving specific goals as to how to
resolve specific problem, or whether there have
been any complaints against the attorney resulting in
a reprimand, suspension or disbarment. It also can-
not determine from an advertisement whether the
attorney will be accessible enough so that they can
communicate effectively with their clients and willing
to take the time necessary so that they understand
the possible outcomes of handling the client’s case
in a given manner.
ATTORNEYS—HOW TO FIND AN ATTORNEY
20 GALE ENCYCLOPEDIA OF EVERYDAY LAW
By Personal Referral
Friends and business acquaintances whose judg-
ment is trusted is a good source in finding an attor-
ney, if they have used the attorney for the same kind
of problem that a consumer is facing or at least prac-
tices in a specialty pertaining to the consumer’s situ-
ation. An even better source is a friend or acquain-
tance who actually is an active or recently retired
lawyer or judge. Such persons can inform potential
clients as to attorneys’ reputation in the legal com-
munity.
By Published Directories
Martindale Hubbell Law Directory
This annually published directory is the oldest and
best known of those available today. It includes law-
yers practicing in the United States as well as 159
other countries. This coverage of foreign countries
will continue to become more important as laws in
the United States are affected by foreign and interna-
tional law.
Each individual lawyer entry will contain the date
of birth, the year first admitted to a state bar,
numeric codes indicating where all listed educational
degrees were earned Specialized areas of law in
which they practice, and a listing of representative
clients, the firm where the lawyer practices, and con-
tact information. If the entry has the bar registry des-
ignation (BR), it means that they are also listed in the
Martindale Hubbell Directory for Pre–Eminent Law-
yers.
Despite its enormous size, not all practicing attor-
neys are listed. In order for an attorney or firm to be
included in this directory, they must send the appro-
priate information to the publisher.
Many, but not all of the attorneys and firms listed,
are rated according to their degree of legal skill and
whether they follow the highest ethical standards.
The rating ‘‘AV’’ is the highest rating given. A ‘‘BV’’
rating is still above average in terms of legal skills and
an indication the attorney subscribes to the same
high ethical standards as those given the ‘‘AV’’ rating.
The ‘‘CV’’ rating denotes an average rating in terms
of legal skills and an indication the lawyer also fol-
lows the highest ethical standards. No attorney is
given a rating without their consent. The ratings are
based on confidential written evaluations by practi-
tioners and judges in the position to know the given
lawyer. There is no rating to indicate that a lawyer is
below average in legal ability or that he does not fol-
low the highest ethical standards.
Martindale Hubbell Bar Register of Pre–
Eminent Lawyers
Listings are restricted to those individual attor-
neys and firms that have earned the ‘‘AV’’ rating and
who practice in the United States and Canada. In-
stead of being grouped by state and within each state
by the locality in which the lawyer practices, the law-
yers are first grouped according to the specialty in
which they practice. Sixty specialties are included.
The primary value of these directories in your
search for an attorney is that they tell you how long
that lawyer has been in practice, whether he special-
izes in an area relevant to the problem you are facing,
and whether there may be a CONFLICT OF INTEREST if
you retain that attorney based on the clients they
represent.
The Best Lawyers in America 1999–2000
Now in its eighth edition, the information is based
on the polling of 11,000 lawyers who were asked
which attorneys in practice for a minimum of ten
years they consider to be the best in their specialty.
In the 1995–1996 edition only one and one half per-
cent of all lawyers practicing in the United States
were listed.
Lawyer’s Register International by
Specialties and Fields of Law. 16th ed. 1999
This directory gives a worldwide listing of attor-
neys who represent themselves as being certified or
designated as practicing in one or more of 390 legal
specialties. The designation as a specialist is given for
one of three reasons. First, the attorney has success-
fully completed a certification program given for that
specialty in the state in which they practice. Second,
the state in which the lawyer practices has designat-
ed them on a defacto basis that they have sufficient
experience to be qualified in a given specialty. Third,
they have been certified by the National Board of
Trial Advocacy. There is a separate designation given
for each of these three reasons why a lawyer is desig-
nated as certified in a given specialty.
The directory is arranged alphabetically by spe-
cialty, and within each specialty alphabetically by
where they practice. In order to assist the consumer,
a separate table lists all states that have established
certification programs in particular specialties. By
using this table, you are able to more easily select at-
torneys that have been certified by a state program
in a given specialty.
ATTORNEYS—HOW TO FIND AN ATTORNEY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 21
Chambers Global The World’s Leading
Lawyers
Published in London, England, by Chambers and
Partners, this source is designed for those trying to
find an attorney practicing in one of over sixty spe-
cialized areas of business and CORPORATE law.
Evaluations are from leading practitioners in each
specialty obtained through telephone interviews av-
eraging thirty minutes. During these interviews, the
person interviewed is asked who they consider to be
the best attorney in their specialty and why they hold
such a high opinion of them. This procedure, unlike
the written questionnaires upon which other lawyer
directories rely, allows for a more thorough investi-
gation of the legal abilities of a given attorney. This
is because a interview by telephone avoids the BIAS
that is inherent in written questionnaires since the
ones returned in such surveys are much more likely
to be favorable. Conversely, attorneys who do not re-
spect the abilities of another practitioner are less
likely to send in their written responses.
By the Internet
• America Online (AOL) Anywhere Lawyer Di-
rectory URL: http://aol.lawyers.com – Be-
sides acting as an online aid to finding an at-
torney, this site also contains a link to
answer questions that need to be asked by
those seeking legal representation.
• Martindale Hubbell Lawyer Locator URL:
www.martindale.com – This is the most fre-
quently used lawyer directory on the inter-
net.
• Lawyers.com URL: www.lawyers.com – This
site also belongs to Martindale–Hubbell, but
it differs from the preceding web site be-
cause it targets individuals and small busi-
ness people. This site allows searches to be
narrowed to those attorneys practicing a
particular specialty in a given locality. It also
has links to help a consumer determine
whether they need a lawyer, how attorneys
bill their clients and how much they charge
as well as a list of questions to ask an attor-
ney before you decide to retain them.
• Chambers and Partners URL: http://
www.chambersandpartners.com – This or-
ganization’s home page has links that enable
you to find evaluations of lawyers and law
firms as to their legal skill in various areas of
business and corporate law.
By Lawyer Referral Services of State Bar
Associations
These sources are useful only to the extent they
can give consumers the names of lawyers in a given
locality who practice law in a given specialty and who
have agreed to have their name put on the list main-
tained by the Bar Association. For a small fee, usually
$25 – $30, each attorney on the list agrees to give a
fifteen to thirty minute consultation. This can be
helpful because consumers can get an opinion from
a lawyer as to whether they have a case and whether
it is worth pursuing. This can save consumers a great
deal of time and effort as opposed to attempting to
research the matter on their own. During the consul-
tation, the lawyer should be able to inform the po-
tential client whether the STATUTE OF LIMITATIONS for
filing their particular claim has expired or not. Al-
though consumers could do research on their own,
just reading the STATUTE may be insufficient to deter-
mine whether the statute of limitations has run out;
they may have to read the CASE LAW on this matter.
Regardless of what the attorney tells the consumer
regarding their case, they are under no obligation to
retain the lawyer’s services.
The following are a short list of directory services
available:
• ABA Directory of Lawyer Referral Services –
This directory lists state wide and local bar
association referral services. The local refer-
ral services specify which counties they
serve. Each referral service will indicate
whether they give referrals for all specialties
or exclude certain ones. Information is also
given as to whether low fee or PRO BONO (no
fee) programs are provided for low income
clients.
• Law and Legal Information Directory by Ste-
ven & Jacqueline O’Brien Wasserman – This
source has an alphabetical listing by state of
referral services located in that JURISDICTION.
Included are entries for services provided by
the state bar as well as local bar associations.
Street and web site addresses, regular and
toll–free telephone numbers Are provided.
If you qualify by income, a listing of legal aid
offices arranged alphabetically by state and
cities within will include the same informa-
tion the lawyer referral section provides.
• Web Services – If you do not have access to
either of the above titles, you may obtain in-
formation on the legal referral services of-
ATTORNEYS—HOW TO FIND AN ATTORNEY
22 GALE ENCYCLOPEDIA OF EVERYDAY LAW
fered by your state bar by logging on to
www.findlaw.com. From this cite you will be
led to links for each state which in turn will
include links to that state’s bar association
and the lawyer referral service it provides.
Questions to Ask Before Retaining a
Lawyer
There are four purposes to this process. First, it
allows consumers to determine whether the attorney
has sufficient experience not just in the specialty per-
taining to their problem, but also whether the lawyer
has had previously solved a similar problem for an-
other client. Second, they can learn whether his style
is suited to their goals in resolving the dispute they
have with the other side. For example, if a potential
client is hoping for a SETTLEMENT, a hardball Rambo
like style may backfire. Third, they will discover how
well they and the attorney communicate with one
another. Fourth, they can ask the attorney if they are
able to devote sufficient time and resources, such as
a support staff, to their case.
Consumer Reports suggests that the following
questions be asked during an interview with any at-
torney a consumer is considering retaining:
• How many years of experience do you have
in this specialty and how have you handled
similar disputes in the past?
• What are the possible results from pursuing
this matter?
• How long will you expect it to take to resolve
this matter?
• How will you keep me informed of what is
happening as the case proceeds?
• Will anyone else, such as one of your asso-
ciates or paralegals, be working on my case?
• Do you charge a flat or an hourly rate and
how much?
• What other expenses will there be besides
your fee and how are they calculated?
• What’s a reasonable approximate figure for
a total bill?
• Can you give me a written estimate?
• Can some of the work be handled by mem-
bers of your staff at a lower rate?
• Will unforeseen events increase the amount
you charge me?
• If you charge on a contingency basis, what
proportion of the amount I recover will be
paid to you as your fee and can this figure
be calculated after the expenses are deduct-
ed?
• How often will I be billed, and how are bill-
ing disputes resolved? If we cannot settle
this, will you agree to mandatory arbitration?
• Do you need any further information from
me?
• Can I do some of the work in exchange for
a lower bill?
• Do you recommend that this matter be sub-
mitted to an arbitrator or mediator, and do
you know anyone qualified to do this?
Additional Resources
Choosing a Matrimonial Lawyer: 10 Criteria for Finding
the Right One for You. David M. Wildstein, Wilentz,
Goldman, & Spitzer, 1996.
Consumer’s Guide to Getting Legal Help. ABA, 2001.
Do I Really Need a Lawyer? Kahon, Stewart & Robert M.
Cavello, Chilton Book Co., 1979.
Finding the Right Lawyer. Jay Foonberg, ABA Section of
Law Practice and Management, 1995.
Guide to Consumer Services: Consumer Union’s Advice
on Credit, Income Tax, Choosing a Doctor or Dentist,
Finding a Lawyer, Closing Costs, Auto Repair and
Much More. Consumer’s Union, 1979.
How to Find the Best Lawyers: And Save over 50% in Legal
Fees. John Roesler, Message Co., 1996.
Lawyer Referral and Information Service Handbook.
ABA, 1980 - Published biannually.
Let’s Talk Law: Selecting a Lawyer. Crest Video Marketing.
Profile 2000: Characteristics of Lawyer Referral and In-
formation Service. ABA Committee on Lawyer Referral
and Information Service, 1999.
Using a Lawyer and What to Do if Things Go Wrong.
HALT.
Organizations
American Divorce Association of Men
International
1519 S. Arlington Heights Rd.
Arlington Heights, IL 60005 USA
Phone: (847) 364-1555
ATTORNEYS—HOW TO FIND AN ATTORNEY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 23
American Society for Divorced and
Separated Men
575 Keep St.
Elgin, IL 60120 USA
Phone: (847) 665-2200
Atlanta Lawyers for the Arts
152 Nassau St.
Atlanta, GA 30303 USA
Phone: (404) 585-6110
Chicago Divorce Association
One Pierce Center
Itasca, IL 60143 USA
Phone: (630) 860-2100
Christian Legal Society
4208 Evergreen Lane, Suite 222
Annandale, VA 22003 USA
Phone: (703) 642-1070
Families for Private Adoption
P.O. Box 6375
Washington, DC 20015 USA
Phone: (202) 722-0338
Find the Children
3030 Nebraska Ave., Suite 207
Santa Monica, CA 90404-4111 USA
Phone: (310) 998-8444
Help Abolish Legal Tyranny (HALT)
1612 K St., N.W. Suite 510
Washington, DC 20006 USA
Phone: (202) 887-8255
Phone: (888) FOR-HALT
URL: www.halt.org
Military Law Task Force
1168 Union, #200
San Diego, CA 92101 USA
Phone: (619) 233-1701
National Counsel of Black Lawyers
116 W. 111th St., 3rd Floor
New York, NY 10026 USA
National Health Law Program
2639 S. LaCienega Blvd.
Los Angeles, CA 90034 USA
Phone: (310) 204-0891
National Lawyers Guild
126 University Place, 5th floor
New York, NY 10003-4538 USA
National Whistleblower Center
3238 P St., N.W.
Washington, DC 20007 USA
Phone: (202) 342-1902
ATTORNEYS—HOW TO FIND AN ATTORNEY
24 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ATTORNEYS
MALPRACTICE
Sections within this essay:
• Background
• Establishing the Attorney-Client Relation-
ship
• Conduct vs. Performance
• What Constitutes Actionable Malpractice
- Omission or Failure to Do Some-
thing (Nonfeasance)
- Failure to Perform or Do Something
Competently (Malfeasance)
- Acting Outside the Scope of Authori-
ty, Duty, or Area of Competence
• Filing a Malpractice Lawsuit
• Alternatives for Addressing Malpractice
• Select State Laws on Limitations Period For
Filing Malpractice Lawsuits
• Additional Resources
Background
MALPRACTICE is professional NEGLIGENCE or (less
frequently) professional misconduct. Attorney mal-
practice generally implies an unreasonable lack of
skill, or failure to render professional services in a
manner consistent with that degree of skill, care, and
learning expected of a reasonably competent and
prudent member of the legal profession. Claims
against attorneys (lawyers) for legal malpractice are
viable in all fifty states. There is no federal law gov-
erning attorney malpractice, and state statutes typi-
cally address only the appropriate STATUTE OF
LIMITATIONS (limiting the time period) for filing
claims or lawsuits against attorneys. However, state
CASE LAW will define and set the parameters for ac-
tionable cases of malpractice within the state.
For legal malpractice to be ‘‘actionable’’ (having
all the components necessary to constitute a viable
cause of action), there must be a duty owed to some-
one, a breach of that duty, and resulting harm or
damage that is proximately caused by that breach.
The simplest way to apply the concept of proximate
cause to legal malpractice is to ask whether, ‘‘but
for’’ the alleged negligence, the harm or injury would
have occurred?
Establishing the Attorney-Client
Relationship
First and foremost, an attorney must owe a legal
duty to a person before his or her competency in
performing that duty can be judged. In American
JURISPRUDENCE, a lawyer has no affirmative duty to as-
sist someone—in the absence of a special relation-
ship with that person (such as doctor-patient, attor-
ney-client, guardian-ward, etc.). That ‘‘special
relationship’’ between an attorney and his/her client
is generally established by mutual assent/consent.
This is most often confirmed by a written ‘‘retainer’’
agreement in which the client expressly and exclu-
sively retains a lawyer and his/her law firm to repre-
sent the client in a specific legal matter.
Under rare and limited circumstances, a court
may infer that an attorney-client relationship existed
as a matter of law, even without a contract or agree-
ment between the parties, and even without the at-
torney’s ASSENT. Such a legal conclusion may be
GALE ENCYCLOPEDIA OF EVERYDAY LAW 25
drawn from the facts presented, such as reliance on
the part of the client (who believed in GOOD FAITH
that an attorney-client relationship existed) or by the
fact that the attorney provided more than just infor-
mal or anecdotal opinion or answer to a question.
The paying of a fee or RETAINER is not dispositive in
determining whether an attorney-client relationship
existed, and courts generally defer to the ‘‘client’’
and base their conclusions on—or at least give sub-
stantial weight to—whether the client believed such
a relationship existed, confided in the attorney, and
relied upon the professional relationship to his or
her detriment.
In any event, once the requisite attorney-client re-
lationship is established, the attorney owes to the cli-
ent the duty to render legal service and COUNSEL or
advice with that degree of skill, care, and diligence
as possessed by or expected of a reasonably compe-
tent attorney under the same or similar circum-
stances. The ‘‘circumstances’’ may include the area
of law in which the attorney practices (although all
attorneys are deemed to have basic legal skill and
knowledge in the general practice of law), the cus-
tomary or accepted practices of other attorneys in
the area, and the particular circumstances or facts
surrounding the representation. The requisite de-
gree of skill and expertise under the circumstances
is established by ‘‘expert testimony’’ from other prac-
ticing attorneys who share the same or similar skill,
training, certification, and experience as the allegedly
negligent attorney.
Conduct vs. Performance
The practice of law requires state licensure. All
fifty states have criteria governing admission to prac-
tice within their states. Although requirements may
vary slightly, almost all states require graduation
from an accredited law school, passing the ‘‘bar
exam’’ (referring to the professional BAR ASSOCIATION
of that state), and submitting to a review and investi-
gation of one’s personal background for ASSESSMENT
of ‘‘character and fitness’’ to practice law. According-
ly, all new lawyers start their profession with an ac-
ceptable level of professional competency (as deter-
mined by graduation from law school and passage of
a comprehensive bar exam which gauges their pro-
fessional knowledge of the law), as well as an accept-
able level of character and fitness to practice law (as
determined by the state bar review board).
Each state also has adopted codes of conduct,
disciplinary rules, and adjudicative boards to address
issues of misconduct once attorneys are admitted to
practice. The American Bar Association also promul-
gates and promotes its Model Rules of Professional
Conduct (adopted by two-thirds of the states as of
2002).
Additionally, virtually all states now require peri-
odic ‘‘updating’’ of technical and/or academic skills
by the mandatory completion of a certain number of
classroom or seminar hours each year. Attorneys
may generally choose the topics in which these
hours are completed, but there is usually a require-
ment that a minimum number of hours be complet-
ed in the area of ‘‘ethics.’’ Attorneys who fail to com-
plete these courses may not renew their license to
practice for the upcoming year. Additional fines or
penalties may apply.
That said, trained, licensed attorneys nonetheless
may engage in questionable conduct, display a seem-
ing lack of skill, or otherwise neglect or fail to proper-
ly render those duties owed to their clients, their ad-
versaries, or to the judicial system as a whole, in their
day-to-day practice of law. For those indiscretions
and failures that have resulted in harm to a client, a
lawsuit for legal malpractice may be an appropriate
remedy.
What Constitutes Actionable Malpractice
State laws govern the viability of causes of action
for legal malpractice. The laws vary in terms of time
limits to bring suit, qualifications of ‘‘expert’’ witness-
es, cognizable theories of liability, and proper party
defendants/proper party plaintiffs. Notwithstanding
these differences, there are common themes for all
cases, and general agreement from state to state on
particular instances of nonfeasance or malfeasance of
professional duties that may constitute legal mal-
practice.
Not all instances of malpractice involve an attor-
ney’s handling of a case for trial (although persons
generally think of attorneys within the context of
matters involving LITIGATION). For example, an attor-
ney may fail to file a request for variance in a county
ZONING matter involving a parcel of real property or
may fail to catch an error on closing documents sub-
mitted to him/her. An attorney may erroneously ad-
vise a client about an area of law, e.g. foreign
ADOPTION. Or an attorney may otherwise act on be-
half of a client, against that client’s express authority
or permission. Any of these may constitute examples
of actionable legal malpractice.
ATTORNEYS—MALPRACTICE
26 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Omission or Failure to Do Something
(Nonfeasance)
At the top of the list of dreaded mistakes for any
attorney is the failure to file a claim, notice, or lawsuit
within the time prescribed by law. Inevitably, the cli-
ent loses his or her right of action, and the entire
cause is lost. Such a failure is ‘‘black and white’’ in
the eyes of jurors, and disastrous for the client. Simi-
larly, the failure to answer a claim, notice, or lawsuit
on behalf of a client may result in FORFEITURE, loss of
defense, or DEFAULT JUDGMENT entered against a cli-
ent, often FATAL failures. A failure to appear in time
to set aside a DEFAULT judgment is equally serious.
Unfortunately, courts do not consider that the error
was made by the attorney and not the client. The cli-
ent must sue the attorney for malpractice to recoup
his or her loss.
Probably second to the above, in terms of occur-
rence and viability, is the failure to provide required
notice. Such failures may include the failure to notify
potential heirs at law of a PROBATE matter, failure to
provide notice to creditors of a pending action, fail-
ure to post public notice regarding a real property ac-
tion, failure to appear in court, or failure to notify a
client of an offer to settle the case, received from the
opposing party. These matters generally constitute
actionable malpractice if the client has suffered harm
or damage as a result of the alleged failures.
Third in line is that group of failures which are se-
rious but not always fatal to a client’s interest(s).
These include such things as failure to file a certain
motion in court, failure to name the right parties in
a lawsuit (very serious if the time period for filing ex-
pires), failure to take or obtain certain DISCOVERY
(e.g., documents or EVIDENCE), failure to object to
the admission of certain evidence at trial (more seri-
ous), failure to raise certain issues or questions at de-
positions, public hearings, trials, arbitrations and me-
diations, etc.
Sometimes overlooked but nonetheless consid-
ered malpractice is the failure to communicate with
a client and/or keep the client apprized of the status
of the legal matter. However, such instances of mal-
practice are seldom ‘‘actionable’’ (because of impal-
pable damages) and are better addressed through a
grievance process or letter of complaint.
The above instances of failures are not compre-
hensive and are intended only as representative by
way of example. Not all occurrences of the above
‘‘failures’’ will result in actionable malpractice in all
jurisdictions and under all factual scenarios.
Failure to Perform or Do Something
Competently (Malfeasance)
An attorney may be equally liable for malpractice
if he or she performs the actions required by law, but
does so in an incompetent or substandard manner.
For example, an attorney may timely file a cause of
action in court, but the complaint may fail to contain
important details or averments (allegations), result-
ing in DISMISSAL of the suit. An attorney may take the
DEPOSITION of a witness but ask irrelevant questions
or fail to ask the necessary questions needed to elicit
needed TESTIMONY. An attorney may prepare a last
will and TESTAMENT for a client but accidentally leave
out or miswrite a very important BEQUEST. An attor-
ney may appear in time for a criminal sentencing
HEARING but be wholly unprepared or unfamiliar with
the case or the issues.
All of the above examples represent situations re-
quiring levels of skill generally attributable to or ex-
pected of any competent attorney practicing law in
any state. They do not require specialized knowledge
in any particular area of law and do not require ad-
vanced levels of legal experience or expertise. They
are considered examples of fundamental practice of
law. Breaches or failures of this type are generally
preventable, avoidable, and therefore, actionable in
most cases.
Within the context of litigation, it should be men-
tioned that in most states, a client’s retention of an
attorney to represent an action at trial implies that
the client has delegated to the attorney all decision-
making regarding the manner in which the trial
should be conducted or the case should be pres-
ented. Even if the attorney loses the case, and a judg-
ment is entered against his or her client, it does not
mean that any malpractice was committed; after all,
in every trial, at least one competent attorney loses
and one wins. Under a broad area of attorney discre-
tion, commonly referred to as ‘‘trial tactics,’’ errors
in judgment at trial (e.g., whether or not to present
a certain witness or introduce certain evidence)
which are not patently substandard for the profes-
sion, do not generally give rise to a cause of action
for malpractice.
Acting Outside the Scope of Authority, Duty,
or Area of Competence
In addition, there are clear instances when attor-
neys should decline representation because they are
not skilled enough—or do not possess the requisite
subject matter knowledge— to provide competent
representation for a client. By way of example, such
legal matters as WRONGFUL DEATH by MEDICAL
ATTORNEYS—MALPRACTICE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 27
MALPRACTICE, complex CORPORATE mergers or buy-
outs, or complex financial transactions, should not
be handled by new attorneys without supervision.
Often, mistakes in taking on a new client are made
when new attorneys want to ‘‘impress’’ their col-
leagues or superiors, or when sole practitioners need
money or more cases.
An attorney retained to represent a client in one
matter may unilaterally and without authority decide
to represent a client, or act on the client’s behalf, in
another unrelated matter. The client may subse-
quently ratify the representation, or, if harmed, may
sue for malpractice. Likewise, an attorney retained
for a specific matter may unilaterally and without au-
thority decide to accept an offer of SETTLEMENT for a
certain amount of money, without the client’s au-
thority. This is a good example of malpractice but
may not be ‘‘actionable’’ malpractice, if the client is
unable to prove (by a preponderance) that he or she
would have gotten more money had the matter gone
to trial.
Filing a Malpractice Lawsuit
There are two important factors to remember
about a cause of action for malpractice. First, a client
should realize that a poor, unfair, or unexpected re-
sult does not mean that any malpractice occurred.
Second, in the event that malpractice has occurred,
the client must prove that he or she has suffered
harm or loss due to the alleged wrongs on the part
of an attorney. This is not as easy to prove as one
might think. For example, if the alleged malpractice
involved a matter in litigation, the client must prove
that he or she would have won the case, i.e., a jury
would have ruled in his or her favor, ‘‘but for’’ the
alleged malpractice. This means that, in proving a
case for malpractice, the client will have to actually
‘‘try’’ the ‘‘underlying case’’ before a real jury, and
win it, in order to prove the point. Consequently,
many lawsuits for malpractice are settled out of court
to avoid the time, expense, and uncertainty of such
a burden.
Alternatives for Addressing Malpractice
All states have attorney discipline boards or com-
mittees that accept informal or formal complaints
from aggrieved clients. In matters that involve mis-
conduct more than INCOMPETENCY, this may be the
forum of choice. Generally, disciplinary boards have
authority to impose fines, order RESTITUTION to a cli-
ent, and suspend or revoke a lawyer’s license to prac-
tice law in that state. Clients also may wish to consid-
er alternative dispute resolution, such as ARBITRATION
or MEDIATION, to settle their claims of alleged mal-
practice.
Finally, it is worth noting that attorneys are gener-
ally required to advise their clients of known in-
stances of actionable malpractice that have harmed
the client or caused loss or damage. By far, the ma-
jority of attorneys are honest, competent, and com-
mitted to providing good service, and will so advise
clients in the event of a known failure. However,
what may appear to a layman as ‘‘malpractice’’ at first
blush, may in reality constitute no more than a deci-
sion or tactic employed by the attorney that conflicts
with a client’s expectation of likely action or out-
come. Persons who believe that their attorneys may
have committed malpractice are encouraged to con-
sult with legal counsel who specialize in the area of
professional malpractice.
Select State Laws on Limitations Period
For Filing Malpractice Lawsuits
CALIFORNIA: Actions for legal malpractice must be
brought within one year of discovery of a claim, with
a maximum four years’ limitation from the date of
the alleged wrong. Proc: Section 340.6.
CONNECTICUT: Actions for legal malpractice must
be brought within two years of discovery, with a max-
imum three years’ limitation from the date of the al-
leged wrong. Section 52-584.
ILLINOIS: Actions for legal malpractice must be
brought within a maximum of six years from discov-
ery of the alleged wrong 735 ILCS 5/13/214/3.
KANSAS: Actions for legal malpractice must be
brought within two years of discovery, with a maxi-
mum four years’ limitation from the date of the al-
leged wrong. Section 60-513(a)(7), 60-513(c).
KENTUCKY: Actions for professional service mal-
practice must be brought within one year from dis-
covery. Section 413-245.
MAINE: Actions for legal malpractice must be
brought within two years, Section 753-A.
MISSISSIPPI: Actions for professional malpractice
must be brought within two years. Section 15-1-36.
MONTANA: Actions for legal malpractice must be
brought within three years from discovery, with a
ATTORNEYS—MALPRACTICE
28 GALE ENCYCLOPEDIA OF EVERYDAY LAW
maximum ten years’ limitation from the date of the
alleged wrong. Section 27-2-206.
NEVADA: Actions for legal malpractice must be
brought within four years. Section 11.207.
RHODE ISLAND: Actions for legal malpractice must
be brought within three years. Section 9-1-14.1 and
9-1-14.3.
SOUTH DAKOTA: Actions for legal malpractice must
be brought within three years. Section 15-2-14.2.
TENNESSEE: Actions for legal malpractice must be
brought within one year Section 28-3-104.
Additional Resources
‘‘American Bar Association Model Rules of Professional
Conduct’’ 2001. Available at http://www.abanet.org/crp/
mrpc/mrpc_toc.html.
‘‘Attorney Malpractice’’ 2001. Halt Legal Information
Clearinghouse. Available at http://www.halt.org/ELS/
ELScontrol.cfm?getELS=elsB1.
‘‘The Hierarchy of Attorney Malpractice’’ 2001. Available
at http://attorneymal-practice.com/heirarchy.htm.
National Survey of State Laws 3rd Edition. Richard A.
Leiter, Ed. Gale Group, 1999.
ATTORNEYS—MALPRACTICE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 29
This Page Intentionally Left Blank
AUTOMOBILES
ACCIDENT LIABILITY
Sections within this essay:
• Background
• Concept of Fault or Liability
- Common Law
- Motor Vehicle Statutory Violations
• Automobile Accident Liability Insurance
- Contributory Negligence Standards
- Comparative Negligence Standards
- No-Fault Liability Systems
- Components of an Automobile In-
surance Policy
• When Accidents Occur
- In a Rental or Leased Vehicle
- When a Pedestrian or Bicyclist is Hit
- When an Animal is Hit
- In One Vehicle Accidents
- In Another State or Country
- When One Causes an Accident
- When One is Injured in an Accident
• Vicarious Liability and Negligent Entrust-
ment
• Selected State Laws
• Additional Resources
Background
All fifty states and the District of Columbia provide
‘‘drivers’ licenses’’ for their residents, permitting
them to operate motor vehicles upon public roads.
Once individuals have been licensed by a state, they
are presumed qualified and competent to operate a
motor vehicle for the period of time covered by the
license. By far, the vast majority of automobile acci-
dents are caused by persons well qualified to drive
under state criteria but who are careless and/or reck-
less in their operation of motor vehicles at the time
of an accident. Moreover, a high number of accidents
are the result of intentional misconduct, such as alco-
hol consumption or excessive speeding.
Concept of Fault or Liability
The determination of fault in an automobile acci-
dent may or may not establish the person or party
liable for payment of the damages or injuries. This
fact is wholly the result of legislative LOBBYING over
the years by automobile liability insurance carriers,
who have devised and promoted various alternative
strategies to the COMMON LAW concept that persons
at fault pay for the damages. Under such legislative
schemes, common law recovery for damages has
been totally or partially abolished. In its place is a
STATUTORY reapportionment of liability for payment
of damages. This arrangement does not mean that
there is a statutory re-defining of actual ‘‘fault’’ PER
SE. It simply means that many states have reappor-
tioned the liability for fault, at least for purposes of
automobile accident liability insurance. In all states,
persons who fail to maintain liability insurance and
who cause accidents may be personally sued, and
their assets seized to satisfy any judgment against
them.
Common Law
In its purest form, ‘‘fault’’ for causing an accident
is either created by STATUTE or defined by common
law. Common law recognizes four basic levels of
fault: NEGLIGENCE, recklessness or wanton conduct,
GALE ENCYCLOPEDIA OF EVERYDAY LAW 31
intentional misconduct, and strict liability (irrespec-
tive of fault).
Negligence generally means careless or inadver-
tent conduct that results in harm or damage. It is a
recurring factor in an aggregate majority of automo-
bile accidents. It encompasses both active and pas-
sive forms of fault. That is to say, failing or omitting
to do something (e.g., yielding a right-of-way) may
result in liability just as much as actively doing some-
thing wrong (e.g., running a red light). Reckless or
wanton conduct generally refers to a willful disregard
for whether harm may result and/or a disregard for
the safety and welfare of others. Strict liability may be
imposed, even in the absence of fault, for accidents
involving certain defective products or extra hazard-
ous activities (such as the transporting of explosive
chemicals).
Under common law, individuals who have caused
an automobile accident have committed a ‘‘tort,’’ a
private wrong against another, not founded in ‘‘con-
tract,’’ and generally not constituting a crime. Those
who have committed torts are referred to as ‘‘tortfea-
sors’’ under the law. Many automobile insurance pol-
icies continue to use the word ‘‘tortfeasor’’ to refer
to people who are at least partly ‘‘at fault’’ or respon-
sible for an accident.
There is rarely a question of fault when the
TORTFEASOR has engaged in intentional or reckless
misconduct, such as drunk driving. But when it
comes to something less than intentional miscon-
duct, e.g., general negligence, establishing fault for
an automobile accident becomes more complex.
Moreover, it is often the case that more than one
driver or person is negligent and/or has played a role
(even inadvertently) in the resulting accident. When
there are multiple tortfeasors involved in an acci-
dent, state law dictates who must pay for both dam-
age to property and injuries to the occupants of vehi-
cles.
Motor Vehicle Statutory Violations
Every state has passed multiple laws which dictate
the manner in which drivers must operate their vehi-
cles upon public roads. Many of these statutes are ac-
tually codified versions of the common law, while
others are the result of legislative initiative.
The important point to remember is that a viola-
tion of any of these statutes generally creates a pre-
sumption of negligence as a matter of law. Thus,
‘‘fault’’ in an accident may be established merely by
citing a statute that has been violated. A tortfeasor
who is presumed to have caused an accident by vir-
tue of a statutory violation must bear the burden, in
any legal dispute, of proving that he or she was not
negligent, or (in the alternative) that his or her negli-
gence was not a proximate cause in the accident. The
simplest way to apply the concept of proximate
cause to an automobile accident is to ask whether it
would be true that, ‘‘but for’’ the violation, the acci-
dent would not have occurred.
Automobile Accident Liability Insurance
The federal McCarran-Ferguson Act, 15 USC
1011, contains the basic provisions which give states
the power to regulate the insurance industry. This
power particularly applies to in the automobile insur-
ance industry, where there is very little federal inter-
est, excepting matters involving interstate commerce
in general.
State law dictates not only what form of negli-
gence law applies to automobile accidents but also
what form of liability insurance individuals must
maintain in order to lawfully operate a motor vehicle.
The liability insurance that they purchase generally
parallels the form of negligence law found in their
particular state.
In general, liability for accidents can be affected by
any of the following:
Contributory Negligence Standards
Contributory Negligence: A minority of states
have maintained the common law defense of con-
tributory negligence. Its significance to automobile
accident liability is that individuals cannot sue anoth-
er for injuries or damages if they also contributed to
the accident by his or their own negligence. For ex-
ample, if they are making a left-hand turn in their ve-
hicle and are struck by an oncoming vehicle that is
traveling 10 mph over the speed limit, they cannot
sue the motorist for damages if they failed to have
their turn signal on and the speeding motorist did
not know that they were going to turn in front of
them. Under such a theory, their own negligence
contributed to the accident, and, therefore, bars
their right to recover from the other motorist. This
situation is referred to as ‘‘pure contributory negli-
gence.’’ Some states have maintained a version re-
ferred to as ‘‘modified contributory negligence’’ in
which individuals may file suit against another tort-
feasor only if their own negligence contributed to
the accident by less than 50 percent.
AUTOMOBILES—ACCIDENT LIABILITY
32 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Comparative Negligence Standards
Comparative Negligence: In states that utilize
comparative negligence theories, individuals may
sue another motorist whether or not their own negli-
gence played any role in the accident. However, re-
covery for damages will be reduced by the percent-
age of fault attributable to them. This situation is
often referred to as ‘‘apportionment of fault’’ or ‘‘al-
location of fault.’’ For example, in the above exam-
ple, assume that the turning driver sues the speeding
motorist for $100,000 in damages. At trial, a jury will
be asked to determine what percentage of the acci-
dent was caused by the speeding and what percent-
age of the accident was caused by the turning driver’s
failure to operate the turn signal. Assume further that
the jury finds that the turning driver’s own negli-
gence contributed to the accident by 30 percent and
the negligence of the other motorist contributed to
the accident by 70 percent. If the jury agrees that
damages are worth $100,000 the turning driver
would only be able to recover $70,000 in damages
(or $100,000 reduced by 30 percent caused by that
driver’s own negligence). If, conversely, the negli-
gence was found to have contributed 70 percent to
the accident, the driver could only recover $30,000
for the 30 percent fault for which the other tortfeasor
was responsible. Again, this is true in states that
apply a ‘‘pure’’ theory of comparative negligence.
Other states have modified comparative negligence
principles to permit a lawsuit only if a person is were
less than 50 percent negligent.
No-Fault Liability Systems
No-Fault Systems: In states that have statutorily
established a ‘‘no-fault’’ system of liability for negli-
gence, each person’s own insurance company pays
for his or her injury or damage, regardless of who is
at fault. No-fault insurance liability coverage does not
apportion damages or fault. However, it usually does
not cover damage to the automobile, and separate
collision coverage is needed. In states with NO FAULT
systems, individuals may file suit only if certain
threshold injuries have occurred or damages exceed
insurance coverages.
Components of an Automobile Insurance
Policy
Depending on the state, automobile liability insur-
ance policy may contain some or all of the following:
• Bodily Injury Liability: The insurer will pay
damages when other persons are injured or
killed in an accident for which the insured
are at fault.
• PERSONAL INJURY Protection (PIP): The insur-
er will pay for the insured’s injuries and
other related damages to the insured and to
passengers.
• Property Damage Liability: The insurer will
pay damages when the property of other
persons has been harmed or destroyed by
the insured’s vehicle and the insured is at
fault.
• Collision Coverage: The insurer will pay for
damages to the insured’s own vehicle, when
the insured is at fault. If the insured’s vehicle
is financed, the loaner may require the in-
sured to maintain collision coverage on the
vehicle.
• Comprehensive Coverage: The insurer will
pay for damages to the insured’s automobile
caused by fire, theft, VANDALISM, acts of God,
riots, and certain other perils. If the in-
sured’s vehicle is financed, the loaner may
require the insured to maintain comprehen-
sive coverage on the vehicle.
• Uninsured/Underinsured Motorist (UM/
UIM) Coverage: The insurer will pay for inju-
ry or death to the insured and the insured’s
passengers if caused by an uninsured or un-
derinsured tortfeasor or a hit-and-run mo-
torist. In some states, the insurer will also
pay for damage to the insured’s vehicle. An
uninsured at-fault tortfeasor may be sued
and his or her personal assets attached to
satisfy any judgment.
When Accidents Occur
The following points may assist individuals in the
event that they are involved in a motor vehicle acci-
dent:
In a Rental or Leased Vehicle
In a Rental or Leased Vehicle: In most states, indi-
viduals’ own insurance policy will protect them for
any automobile that they are driving. There is no
need to purchase additional insurance from the au-
tomobile rental or leasing company unless they wish
to increase their coverage, e.g., add collision cover-
age.
When a Pedestrian or Bicyclist is Hit
When a Pedestrian or Bicyclist is Hit: In some
states, there is a presumption of fault if drivers strike
a pedestrian or bicyclist, for want of care and defen-
AUTOMOBILES—ACCIDENT LIABILITY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 33
sive driving on the driver’s part. However, the pre-
sumption can be overturned by EVIDENCE of fault or
statutory violation on the part of the bicyclist or pe-
destrian, e.g., bicycling at night without a headlight,
jaywalking, etc. In no-fault states, injured pedestrians
are often covered by their own automobile policies,
even though they were pedestrians at the time, and
even if the driver was were at fault.
When an Animal is Hit
When an Animal is Hit: When a domesticated ani-
mal is injured and/or damage occurs to the driver,
there may be a presumption of fault on the part of
the animal’s owner for allowing the animal to run at
large. If the accident was caused by driver negli-
gence, the animal owner may file suit against the
driver. Most states limit damages to the value of the
animal or its medical care, and do not permit non-
economic damages such as emotional damages asso-
ciated with the loss of a pet. However, this is a rapidly
developing area of law. Injury or damage to the driv-
er’s vehicle caused by collision with wild animals
(e.g., deer) is generally covered without assignment
of fault. The driver should render assistance to the
animal only if the driver will not further endanger
himself or other motorists.
In One Vehicle Accidents
In One Vehicle Accidents: The insurance policy
will generally cover injuries and damages, but the
driver may still be found ‘‘at fault,’’ which could af-
fect the driver’s insurance premiums.
In Another State or Country
In Another State or Country: Generally, the laws
of the state in which the accident occurs will govern
the allocation of fault and liability.
When One Causes Accident
When One Causes an Accident: Individuals should
never leave the scene of the accident. They should
avoid statements of apology or admissions of fault:
there may be other factors involved that they are not
aware of. They need to render assistance to any in-
jured persons, but not to attempt to move them.
They should not move their vehicle unless the acci-
dent is minor. They should attempt to secure the
names and telephone numbers of witnesses, even
though they believe they are at fault. They must al-
ways be truthful to their insurance company. Misrep-
resentations may result in cancellation of a policy for
insurance and expose them to even more liability.
Some states require that a police officer always be
called to the scene; other states require police in-
volvement only in circumstances of declared injury.
Generally, a police officer cannot issue a CITATION if
he or she did not witness the accident, unless it is
clear that the accident could only have been caused
by one driver. Notwithstanding, others drivers may
have contributed to the accident, even if they did not
receive citations.
When One is Injured in an Accident
When One is Injured in an Accident: People
should never assume that they are not injured. They
should remain in the vehicle and take a few moments
to assess their physical condition and the situation.
Some injuries, such as spinal vertebral displacements
(e.g., narrowing of intervertebral disc spaces) do not
manifest immediately. If you they are physically able,
they should attempt to secure contact information of
witnesses. If they are taken to a medical facility, their
personal health care insurance provider may origi-
nally be billed, or the medical facility may request
contact information for their automobile insurance
provider. (Each state has its own law regarding the
‘‘priority’’ of insurers responsible for payment.) Indi-
viduals should remember that if they do not have ei-
ther healthcare or automobile insurance, they are
still entitled to emergency medical treatment until
their condition is stabilized. This entitlement stands
is true regardless of their ability to pay, and regard-
less of who caused the accident.
Vicarious Liability and Negligent
Entrustment
In most states, individuals may be liable for acci-
dents caused by other persons who are driving their
vehicle, with their direct or implied permission. In
many states, both the owner and the driver of a vehi-
cle may be named in a lawsuit under a theory of ‘‘vi-
carious liability.’’ Even in the absence of ‘‘owner’s lia-
bility’’ statutes, the common law theory of ‘‘negligent
entrustment’’ of their vehicle to another person may
result in liability exposure.
Likewise, under general negligence theories of vi-
carious liability and ‘‘respondeat superior’’ (‘‘let the
master answer’’), employers may be liable (in addi-
tion to their employees) for accidents caused by
their employees while operating company vehicles.
Such vicarious liability is generally limited to automo-
bile accidents caused during the course of employ-
ment and does not apply if the employee was using
the vehicle beyond the scope of his or her authority.
In a roundabout way, the law permits two other
circumstances for vicarious or remote liability. One
AUTOMOBILES—ACCIDENT LIABILITY
34 GALE ENCYCLOPEDIA OF EVERYDAY LAW
involves an accident caused by a defective vehicle, in
which a ‘‘product liability’’ lawsuit against the manu-
facturer may result in payment of damages. In the
other, several state laws permit suits against state
highway officers and departments in connection
with the negligent construction or repair of high-
ways, streets, bridges, and overpasses, that may have
proximately caused an accident.
Selected State Laws
ALABAMA: See Title 32 of the Alabama Code of 1975,
(Motor Vehicles and Traffic), Chapter 7, Motor Vehi-
cle Safety Responsibility Act. Available at http://
www.legislature.state.al.us/CodeofAlabama/1975/
coatoc.htm.
ALASKA: See Title 28 (Motor Vehicles) of the Alaska
Statute, Chapter 28.20, ‘‘Motor Vehicle Safety Re-
sponsibility Act.’’ Available at http://www.legis.state.
ak.us/folhome.htm.
ARIZONA: See Title 28 (Transportation) of the Arizo-
na Revised Statutes, Chapter 9, (Vehicle Insurance
and Financial Responsibility). Available at http://
www.azleg.state.az.us/ars/ars.htm#Listing.
ARKANSAS: See Title 23 (PUBLIC UTILITIES and Regu-
lated Industries), Subtitle 3 (Insurance), Chapter 89
(CASUALTY Insurance), Subchapter 2 (Automobile Li-
ability Insurance Generally) of the Arizona Revised
Statutes, Chapter 9, ‘‘Vehicle Insurance and Financial
Responsibility.’’ Also see Title 27 (Transportation),
Subtitle 2 (Motor Vehicle Registration and Licens-
ing), Chapter 19, ‘‘Motor Vehicle Safety Responsibili-
ty Act,’’ and Chapter 22, Motor Vehicle Liability Insur-
ance. Available at http://www.azleg.state.az.us/ars/
ars.htm#Listing.
CALIFORNIA: See California Insurance Code and Cal-
ifornia Vehicle Code, Division 7 (Financial Responsi-
bility Laws), Chapter 3 (Proof of Financial Responsi-
bility) Available at http://www.azleg.state.az.us/ars/
ars.htm#Listing.
COLORADO: See Title 10, Chapter 40701 et seq.,
‘‘Colorado Auto Accident Preparations Act,’’ and
Title 42, Chapter 7, ‘‘Motor Vehicle Financial Respon-
sibility Act.’’ Available at http://www.azleg.state.az.us/
ars/ars.htm#Listing.
CONNECTICUT: See Title 38a (Insurance), Chapter
700, (Property and Casualty Insurance). Available at
http://www.azleg.state.az.us/ars/ars.htm#Listing.
DELAWARE: See Title 21 (Motor Vehicles), part II
(Registration, Titles, and Licenses), Chapter 21 (Reg-
istration of Vehicles), Subchapter 1, Section 2118.
Also see Chapter 29, Motor Vehicle Safety-
Responsibility. Available at http://www.azleg.state.az.
us/ars/ars.htm#Listing.
DISTRICT OF COLUMBIA: See DC Code, Title 35 (In-
surance), Chapter 21 (Compulsory/No-Fault Motor
Vehicle Insurance) and Title 40 (Motor Vehicles and
Traffic), Chapter 4 (Motor Vehicle Safety Responsibil-
ity). Available at http://www.azleg.state.az.us/ars/ars.
htm#Listing.
FLORIDA: See Florida Statutes Annotated, Title 37
(Insurance), Part 11 (Motor Vehicle and Casualty In-
surance), and Title 23 (Motor Vehicles), Chapter 324
(Financial Responsibility) Available at http://www.
azleg.state.az.us/ars/ars.htm#Listing.
GEORGIA: See Georgia Code, Section 40-9-1, ‘‘Motor
Vehicle Safety Responsibility Act.’’ Available at http://
www.azleg.state.az.us/ars/ars.htm#Listing.
HAWAII: See Title 17 (Motor and Other Vehicles),
Chapter 287, ‘‘Motor Vehicle Safety Responsibility
Act.’’ Available at http://www.azleg.state.az.us/ars/ars.
htm#Listing.
IDAHO: See Titles 49 (Motor Vehicles), Chapter 12
(Motor Vehicle Financial Responsibility), Section 12-
1229 (Required Motor Vehicle Insurance) Available
at http://www.azleg.state.az.us/ars/ars.htm#Listing.
ILLINOIS: See Chapter 625 (Vehicles), 625 ILCS5/ (Il-
linois Vehicle Code), Chapter 7 (Illinois Safety and
Family Financial Responsibility Law, Article II (Securi-
ty Following Accident). Available at http://www.azleg.
state.az.us/ars/ars.htm#Listing.
INDIANA: See Title 7 (Motor Vehicles), Article 25 (Fi-
nancial Responsibility), Chapter 4 (Financial Respon-
sibility). Available at http://www.azleg.state.az.us/ars/
ars.htm#Listing.
IOWA: See Iowa Code, Chapter 321A (Motor Vehicle
Financial Responsibility) Available at http://www.
azleg.state.az.us/ars/ars.htm#Listing.
KANSAS: See Kansas Statutes, Title 40 (Insurance),
Article 31, ‘‘Kansas Automobile Injury Reparations
Act.’’ Available at http://www.azleg.state.az.us/ars/ars.
htm#Listing.
KENTUCKY: See KRS Title XXV (Business and Finan-
cial Institutions) Chapter 304, Subtitle 39 (Motor Ve-
hicle Reparations Act). Available at http://www.azleg.
state.az.us/ars/ars.htm#Listing.
AUTOMOBILES—ACCIDENT LIABILITY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 35
LOUISIANA: See Louisiana Statutes Title 32, Sections
861 and 900. Available at http://www.azleg.state.az.
us/ars/ars.htm#Listing.
MAINE: See Title 29A (Motor Vehicles), Ch. 13 (Fi-
nancial Responsibility and Insurance), Subchapter II
(General Financial Responsibility) Section 1605.
Available at http://www.azleg.state.az.us/ars/ars.
htm#Listing.
MARYLAND: See Statute Sections under Insurance
(19-509) and Transportation (17-103). Available at
http://www.azleg.state.az.us/ars/ars.htm#Listing.
MICHIGAN: See Chapter 500 (Insurance Code of
1956), Act 218, and MCL Chapter 31 (Motor Vehicle
Personal and Property Protection). Available at http://
michiganlegislature.org/law/ChapterIndex.asp.
MINNESOTA: See Minnesota Statutes Annotated,
Chapter 65B (Automobile Insurance). Available at
http://www.revisor.leg.state.mn.us/stats/.
MISSISSIPPI: See Title 63 (Motor Vehicles and Traffic
Regulations), Chapter 15 (Motor Vehicle Safety-
Responsibility. Available at http://www.
lexislawpublishing.com/sdCGI-IN/om_isapi.dll?
clientID=6125&infobase=ms code.N
FO&softpage=doc_frame_pg.
MISSOURI: See Missouri Revised Statutes, Title XIX
(Motor Vehicles, Watercraft and Aviation),Chapter
303 (Motor Vehicle Financial Responsibility). Avail-
able at http://www.moga.state.mo.us/STATUTES/
STATUTES.HTM.
MONTANA: See Montana Code, Title 16 (Motor Vehi-
cles), Chapter 6 (Responsibility of Vehicle Users and
Owners), Part 1 (Financial Responsibility), Section
61-6-103, et seq. Available at http://statedocs.msl.
state.mt.us/cgi-bin/om_isapi.dll?clientID=
6928&infobase=MCA_97.NF O &softpage=Browse_
Frame_Pg.
NEBRASKA: See Chapter 60 (Motor Vehicles), Sec-
tion 501 et seq. (Motor Vehicle Safety Responsibility
Act). Available at http://statutes.unicam.state.ne.us/
NEVADA: See Chapter 485 (Motor Vehicles: Insur-
ance and Financial Responsibility Act). Available at
http://www.leg.state.nv.us/NRS/SEARCH/NRSQuery.
htm.
NEW HAMPSHIRE: See Title 21 (Motor Vehicles),
Chapter 264 (Accidents and Financial Responsibili-
ty), Section 264.16 et seq. Available at http://
199.92.250.14/rsa/.
NEW JERSEY: See Title 39 (Motor Vehicle and Traffic
Regulation), Section 39:6A-1 (Maintenance of Motor
Vehicle Liability Insurance Coverage. Available at
http://www.njleg.state.nj.us/
NEW MEXICO: See Chapter 66 (Motor Vehicles), Ar-
ticle 5, Part 3 (Financial Responsibility), Mandatory
Financial Responsibility Act, Section 66-5-201 to 239.
NEW YORK: See New York State Consolidated Laws,
Chapter 28 (Insurance Law), Article 51 (Comprehen-
sive Motor Vehicle Insurance Reparations). Available
at http://www.findlaw.com/11statgov/ny/mycl.html.
NORTH CAROLINA: See Chapters 20 (Insurance) of
the North Carolina General Statutes, Article 9A
(Motor Vehicle Safety an Financial Responsibility Act
of 1953), Section 20-279.1 et seq. Available at http://
www.ncga.state.nc.us/Statutes/toc-1.html.
NORTH DAKOTA: See Title 26.1 (Insurance), Chap-
ter 26.1-41 (Auto Accidents Reparations Act). Avail-
able at http://www.state.nd.us/lr/index.htm.
OHIO: See Title 29 (Insurance), Chapter 3937 (Casu-
alty Insurance, Motor Vehicle Insurance), Section
3937.18 et seq; also Title 45 (Motor Vehicles-
Aeronautics-Watercraft), Chapter 4509 (Financial Re-
sponsibility), Section 4509.20. Available at http://orc.
avv.com/home.htm.
OKLAHOMA: See Section 47-7-101 et seq. Available
at http://oklegal.onenet.net/statutes.basic.html.
OREGON: See Title 56 (Insurance), Chapters 731-
752, including 742 (Insurance Policies Generally).
Title 59 (Oregon Vehicle Code), Chapter 806 con-
tains the Financial Responsibility Act. Available at
http://www.leg.state.or.us/ors/.
PENNSYLVANIA: See Pennsylvania Statutes Annotat-
ed, Title 67 (Transportation), Part I (Department of
Transportation), Subpart A (Vehicle Code Provi-
sions), Article XIII (Administration and Enforce-
ment), Chapter 219 (Proof of Financial Responsibili-
ty); Chapter 221 (Obligations of Insurers and Vehicle
Owners); and Chapter 223 (Self-Insurance). Available
at http://www.pacode.com/cgi-bin/pacode/ssecure/
infosearch.pl
RHODE ISLAND: See Title 31 (Motor and Other Vehi-
cles), Chapter 31-30 and 31-31 (Safety Responsibility
Administration), and Chapter 31-47 (Motor Vehicle
Reparations Act). Available at http://www.riiln.state.
ri.us/Statutes/Statutes/html.
SOUTH CAROLINA: See Title 56 (Motor Vehicles),
Chapter 9 (Motor Vehicle Financial Responsibility
AUTOMOBILES—ACCIDENT LIABILITY
36 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Act), Section 56-9-19 et seq. Available at http://www.
lpitr.state.sc.us/code/statmast.htm.
SOUTH DAKOTA: See Title 58 (Insurance), Chapter
23 (Liability Insurance), and Title 32 (Motor Vehi-
cles), Chapter 32-35 (Financial Responsibility of Vehi-
cle Owners and Operators). Available at http://www.
lixislawpublishing.com/sdCGI-IN/om_isapi.dll?
clientID=1548&infobase=sdcode.NF O&softpage=
browse_frame_pg.
TENNESSEE: See Tennessee Code, Title 56 (Insur-
ance), Chapter 7 (Policies and Policyholders), Part 11
(General Provisions- Automobile Insurance) and Part
12 (Underinsured Motor Vehicle Coverage). Avail-
able at http://www.lixislawpublishing.com/sdCGI-
BIN/om_isapi.dll?clientID=1548&infobase=sdcode.
NFO&softpage=browse_frame_pg.
TEXAS: See Insurance Code, Chapter 5, Part I, Sub-
chapter A, Article 5.06-3 (Personal Injury Protection
Coverage); Transportation Code, Title 7 (Vehicles
and Traffic), Subtitle D (Motor Vehicle Safety Re-
sponsibility), Chapter 601 (Motor Vehicle Safety Re-
sponsibility Act), Subchapter C (Financial Responsi-
bility). Available at http://www.findlaw.com/
11statgove/tx/txst.html
UTAH: See Title 41A (Motor Vehicles), Chapter 12a
(Financial Responsibility of Motor Vehicle Owners
and Operators Act). Available at http://
www.le.satate.ut.us/-code/code.htm
VERMONT: See Title 23 (Motor Vehicles), Chapter 11
(Financial Responsibility and Insurance), Subchapter
V (Insurance Against Uninsured, Underinsured or
Unknown Motorists). Available at http://www.le.
satate.ut.us/-code/code.htm.
VIRGINIA: See Title 38.2 (Insurance), Chapter 22 (Li-
ability Insurance Policies), Title 46.2 (Motor Vehi-
cles), Chapter 3 (Licensure of Drivers), Article 15
(Proof of Financial Responsibility). Available at http://
www.le.satate.ut.us/-code/code.htm.
WASHINGTON: See RWC Title 46 (Motor Vehicles),
Chapter 46.30 (Mandatory Liability Insurance). Avail-
able at http://search.leg.wa.gov/pub/textsearch/
default.asp.
WEST VIRGINIA: See Chapter 17D (Motor Vehicle
Safety Responsibility Act)/. Available at http://www.
legis.state.wv.us/Code/toc.html.
WISCONSIN: See Chapter 632 (Insurance Contracts
in Specific), Section 632.32 (Provisions of Motor Ve-
hicle Insurance Policies) and Chapter 344 (Vehicles
Financial Responsibility). Availability at http://ww.
legis.state.wi.us/rsb/stats.html.
WYOMING: See Title 31 (Motor Vehicles), Chapter
9 (Motor Vehicle Safety Responsibility), Article 4
(Proof of Financial Responsibility). Available at http://
legisweb.state.wy.us/titles/statutes.htm.
Additional Resources
Guide to Consumer Law American Bar Association. Ran-
dom House, 1997.
‘‘Introduction to Automobile Accident Liability.’’ Available
at http://www.claimrep.com/autoLiabRP1.asp.
Law for Dummies. Ventura, John, IDG Books Worldwide,
Inc., 1996.
‘‘The 6 Parts of an Auto Insurance Policy.’’ Available at
http://www.cwinsurance.com/auto/
the6parts.xml?FromSource=lsl.
‘‘Websites for Motor Vehicle Laws of the 50 States.’’ Avail-
able at http://www.cousineaulaw.com/cma_links2.htm.
‘‘Who is Liable? Who Pays for Accident Injuries?’’ Available
at http://www.thenewway.com/personal-injury-guide/
who_liable_who_pays.htm.
AUTOMOBILES—ACCIDENT LIABILITY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 37
This Page Intentionally Left Blank
AUTOMOBILES
BUYING A CAR/REGISTRATION
Sections within this essay:
• Background
• Consumer Protections
- Product Warranties
- Lemon Laws for New and Used Vehi-
cles
- Right to Rescind Purchases
- Credit Matters
• Title Transfers and Liens
• State Registration Requirements
• State Lemon Laws
• Additional Resources
Background
Buying an automobile involves three essential
components. First, there are the matters related to
the vehicle itself, including product guarantees and
warranties. Second, there are the matters relating to
transferring ownership of the vehicle from the manu-
facturer or dealer to the buyer. Third, there are the
matters required of the buyer to properly register
and insure the vehicle before the buyer may operate
it on a public road.
Consumer Protections
Before individuals purchase a vehicle, there are al-
ready several federal laws at work that govern the
quality and safety of products available for their pur-
chase. Most of these are found under Title 15 (Com-
merce and Trade) of the U. S. Code.
• The federal Automobile Information Disclo-
sure Act, 15 USC 1231 et seq., requires auto-
mobile manufacturers and importers of new
cars to affix a sticker on the window of each
vehicle, called the ‘‘Monroney label.’’ The
label must list the base price of the vehicle,
each option installed by the manufacturer
and its suggested retail price, the transporta-
tion charge, and the car’s fuel economy (in
miles per gallon). Only the ultimate user
(the buyer) can remove the label.
• For used vehicles, the Federal Trade Com-
mission (FTC) has passed its Used Car Rule
under 15 USC 41, which applies in all states
except Maine and Wisconsin. (These states
have adopted their own rules governing
used car sales.) Under the Used Car Rule,
dealers must prominently post buyer’s
guides on used vehicles that advises wheth-
er the vehicles comes with a WARRANTY and
what type or are sold ‘‘as is.’’ The buyer’s
guide must be given to the buyer if the buyer
purchases a used vehicle, and it becomes
part of the purchase contract, and its terms
override any conflicting terms in the con-
tract.
• The National Traffic and Motor Vehicle Safe-
ty Act of 1966, 15 USC 1381 et seq., has been
broken down and re-codified over the years
into many legal progeny. The following laws
address such matters as motor vehicle or
driver safety; minimum standards for motor
vehicle emissions, fuel economy, bumper
standards, or crash-worthiness; motor vehi-
cle manufacturer recalls or advisories; manu-
facturer and dealer disclosures, etc.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 39
• The Motor Vehicle Information and Cost
Saving Act, 15 USC 1901 et seq., (much of
which has been broken down into additional
acts and laws, and recodified under Title 49,
Transportation) contains numerous provi-
sions for minimum quality and safety stan-
dards, disclosure, and reporting require-
ments.
• The federal Truth in Mileage Act of 1986,
commonly referred to as the ‘‘Anti-
Tampering Odometer Law,’’ (PL 99-579) (49
CFR 580) criminalizes any act that falsifies ac-
tual odometer readings and mandates that
each transferor of a motor vehicle furnish
the transferee certain information concern-
ing the vehicle’s history.
• The Clean Air Act, 42 USC 7401 et seq., ad-
dresses minimum standards for exhaust
emissions on motor vehicles.
• The Anti-Car Theft Act of 1992, 15 USC 2021
et seq., establishes, among other things, a
national motor vehicle title information sys-
tem to disrupt attempts to obtain legitimate
vehicle ownership by auto thieves. It also
provides for the inspection of exports for
stolen vehicles.
Product Warranties
The federal MAGNUSON-MOSS WARRANTY ACT, 42
USC 2301 et seq. (1984) is applicable to warranties
for purchases of automobiles. Under the Act, any
warranty accompanying a product must be designat-
ed as either ‘‘full’’ or ‘‘limited.’’ Importantly, if a man-
ufacturer has given a full or limited warranty on a
new car, it cannot disclaim any implied warranties.
However, some states have laws that effectively void
any IMPLIED WARRANTY for buyer’s guide used vehicles
that are checked ‘‘As Is-No Warranty.’’
Implied warranties are exactly that: implied. They
follow the sale of certain consumer goods automati-
cally, without any express writing or document. The
implied warranty of merchantability basically guaran-
tees that the product is what it is stated to be and is
adequate for the purpose for which it is purchased.
Under the UNIFORM COMMERCIAL CODE (UCC),
adopted in all 50 states, this implied warranty only
applies to sellers in the business of selling the partic-
ular item and does not apply to incidental sales or
cross-consumer sales.
However, the implied warranty of fitness for a par-
ticular purchase applies to all sellers, even non-
professionals. Under this warranty, the seller is pre-
sumed to guarantee that the car sold (e.g., a restored
race car), is fit for the particular purpose for which
it is being sold.
Lemon Laws for New and Used Vehicles
All 50 states have enacted ‘‘lemon laws’’ to protect
consumers from defective new automobiles. Some
states have enacted separate LEMON LAWS to cover
used vehicles. While their application and protec-
tions vary from state to state, they generally protect
consumers from having to keep defective new vehi-
cles. Lemon laws entitle buyers to a replacement new
vehicle or a full refund if a dealer cannot fix a vehicle
to conform with a warranty after three or four repair
attempts made within six months to a year (state vari-
ations). Some state laws also entitle buyers to such
a remedy if the new vehicle is out of commission for
more than 30 non-consecutive days during the war-
ranty period or a STATUTORY period, e.g., one year.
Right to Rescind Purchases
Contrary to general assumption, there is no feder-
al law giving buyers the right to cancel their new car
purchase within three days of sale. The often-cited
Federal Trade Commission (FTC) ‘‘Cooling Off’’ law
is only effective for door-to-door sales or sales made
at other than the seller’s place of business. However,
many states have enacted their own versions of the
FTC law, affording broader protections than what the
federal law does. Prior to purchase, prospective buy-
ers should check with their state’s attorney general’s
office to see if automobile purchases are covered
under state law.
Credit Matters
The federal CONSUMER CREDIT PROTECTION ACT,
15 USC 1601 et seq., also referred to as the Truth in
Lending Act, assures that consumers receive specific
information regarding the terms, conditions, and
final cost of financing. It also requires disclosure of
other information that will contribute to a meaning-
ful choice and decision to finance the purchase.
If buyers finance their purchase of vehicles, they
most likely will execute a document known as a se-
curity agreement, which gives their CREDITOR a secur-
ity interest in their vehicles. Under most state laws,
if they seriously DEFAULT on car payments, their cred-
itor may repossess their vehicle, sometimes without
advance notice. Although they generally have a right
to ‘‘cure’’ the default and redeem the vehicle, they
normally have to pay the entire balance on the car,
not just the payments in ARREARS. Most financing
agreements contain ‘‘acceleration clauses’’ which
AUTOMOBILES—BUYING A CAR/REGISTRATION
40 GALE ENCYCLOPEDIA OF EVERYDAY LAW
permit the termination of the INSTALLMENT payments
once default occurs. Some states have laws that per-
mit creditors to reinstate the contract terms once
buyers pay the amount in arrears.
If buyers do not redeem the vehicle, the creditor
may keep their vehicles to satisfy the debt, even if the
vehicles are worth more than the debt owed. This is
referred to as ‘‘strict foreclosure.’’ However, if buyers
have paid at least 60 percent of the purchase price,
they generally are entitled to any excess money re-
couped from the vehicle’s sale above and beyond the
balance owed. Buyers are also entitled to take part
in the bidding at the sale.
Title Transfers and Liens
Under the UCC (Article 2), a new car contract
which purports to transfer ownership to the purchas-
er must be in writing. It should include a description
of the make and model of the vehicle, its full vehicle
identification number (VIN), a statement as to
whether the vehicle is new, used, a ‘‘demo,’’ rental
car, etc., the full price and any financing terms, a can-
cellation provision if certain conditions occur (such
as the car not being delivered by a certain date), and
a full statement of warranty terms.
Every transfer of title to a motor vehicle must in-
clude an odometer reading and statement of mileage
from the transferor. For purposes of TAXATION, most
states require an AFFIDAVIT of purchase price as well.
Importantly, if the purchased vehicles are being fi-
nanced, state law will dictate the form of title trans-
fer. Some states will allow title to transfer to the buy-
ers even though they have not yet fully paid for the
vehicle, but the creditor/lender will encumber the
title with a LIEN. Other states permit the creditor/
lender to keep title in its name until they pay for the
vehicle in total, then transfer title to them. In those
states, the buyers maintain an ‘‘equitable lien’’ on the
vehicle while it is being paid for but do not have legal
title to it until their final payment has been made.
Under the UCC, after executing a purchase docu-
ment, but prior to the delivery of the vehicle, the risk
of loss or damage to the vehicle is allocated to the
seller if the seller is a merchant (car dealer). If the
seller is not a merchant under the UCC, the risk pass-
es to the buyer upon tender of delivery, i.e., when
the seller actually attempts delivery or makes the car
available for pickup under the contract.
Generally, title to a vehicle cannot be transferred
if there is any existing lien listed. Creditors will auto-
matically file the necessary paperwork (buyers
should receive a copy) to remove their liens against
the title to their vehicles once buyers have paid them
creditors in full. However, if buyers attempt to sell
their vehicles while a lien is still recorded, the bur-
den is on them to contact the necessary parties to ef-
fect a removal of the lien.
State Registration Requirements
Registering a vehicle in the owner’s name notifies
the state of ownership of the vehicle, and provides
the necessary documentation for the issuance of
state license plates and tags to be affixed to the vehi-
cle. Operating a motor vehicle that is not properly
registered is usually an offense punishable by fine or
IMPRISONMENT. Within most states, the Department
of Motor Vehicles (DMV) or an office of the Secretary
of State is the proper entity for registering vehicles.
The most common document requirements for
registering a vehicle are the title and a certificate of
automobile insurance coverage. Some states addi-
tionally require a copy of the contract or BILL OF SALE,
or in the alternative, an affidavit containing aver-
ments of purchase price, description of the vehicle,
and the VIN number, names of seller and buyer, date
of purchase, and odometer reading.
The title owner of the vehicle is generally, but not
always, the party to whom the vehicle is registered.
Even in states where creditors retain titles in their
names until the buyer pays off the auto loan, registra-
tion of the vehicle will nonetheless be in the buyer’s
name. This means that the buyer will pay the sales
taxes, use taxes, licensing plate fees, and (usually)
fees associated with the transferring of the vehicle to
the buyer’s name.
If the buyer has a lien against the title to the
buyer’s vehicle, the state will most likely require the
buyer to maintain full coverage insurance on the car,
including, especially, collision coverage. Doing so
protects the interests of the lienholder, who could
stand to lose both payment and the vehicle if the
buyer is involved in an accident and does not have
the vehicle insured. Registration may be denied if the
vehicle fails to pass auto emissions or operational
testing, or if any taxes are pending. Additionally, reg-
istration may be denied to persons whose driving li-
censes have been suspended or revoked.
AUTOMOBILES—BUYING A CAR/REGISTRATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 41
State Lemon Laws
ALABAMA: See Article 8, Chapter 20A of the Alabama
Code of 1975. Requires three repair attempts or 30
calendar days out of service.
ALASKA: See Title 45, Chapter 45, Sections 300 to 360
of the Alaska Statutes. Requires three repair attempts
or 30 business days out of service.
ARIZONA: See Sections 44.1261 to 1265 of the Arizo-
na Revised Statutes. Requires four repair attempts or
30 calendar days out of service.
ARKANSAS: See Title 4, Chapter 90, Sections 401 to
417 of Arkansas Statutes. Requires one repair at-
tempt for defect that may cause death or serious in-
jury or three repair attempts or 30 calendar days out
of service.
CALIFORNIA: See California Civil Code 1793.22, the
Tauner CONSUMER PROTECTION Act. Requires two re-
pair attempts for a defect which may cause death or
serious injury or four repair attempts or 30 calendar
days out of service.
COLORADO: See Colorado Statutes 42-10-101 to
107. Requires four repair attempts or 30 calendar
days out of service.
CONNECTICUT: See Connecticut Statutes, Title 42,
Chapter 743b for new vehicles, Chapter 743f for used
vehicles. Requires two repair attempts if there is a se-
rious safety hazard, otherwise four repair attempts or
30 calendar days out of service.
DELAWARE: See Title 6, Subtitle II, Chapter 50, Sec-
tions 5001 to 5009. Requires four repair attempts or
30 business days out of service.
DISTRICT OF COLUMBIA: See DC Code, Division
VIII, Title 50, Subtitle II, Chapter 5. Requires four re-
pair attempts or 30 calendar days out of service.
FLORIDA: See Florida Statutes Annotated, Chapter
681. Requires three repair attempts or 30 calendar
days out of service.
GEORGIA: See Georgia Code, Section 10-1-780. Re-
quires one attempt for a serious safety defect in brak-
ing or steering systems, otherwise three repair at-
tempts or 30 calendar days out of service.
HAWAII: See Hawaii Revised Statutes, Chapter 481i.
Requires one repair for defects which may cause
death or serious injury, otherwise three repair at-
tempts or 30 business days out of service.
IDAHO: See Titles 48, Chapter 9, Sections 901-903.
Requires four repair attempts or 30 business days out
of service.
ILLINOIS: See Chapter 815, 815 ILCS, Section
815.380. Requires four repair attempts or 30 business
days out of service.
INDIANA: See Indiana Code Section 24-5-13. Re-
quires four repair attempts or 30 business days out
of service.
IOWA: See Iowa Code, Chapter 322G, Sections 1 to
15. Requires one repair attempt for defects that may
cause death or serious injury, otherwise three repair
attempts plus a final attempt or 30 calendar days out
of service.
KANSAS: See Kansas Statutes, Chapter 50-645 to 646.
Requires four repair attempts or ten repair attempts
for different defects, otherwise 30 calendar days out
of service.
KENTUCKY: See KRS 367.840 to 846, also KRS 860 to
870. Requires four repair attempts or 30 days out of
service.
LOUISIANA: See Louisiana Revised Statutes Title 51,
Sections 1941 to 1948. Requires four repair attempts
or 30 calendar days out of service.
MAINE: See Title 10, Chapter 203A, Sections 1161 to
1169. Requires three repair attempts or 15 business
days out of service.
MARYLAND: See Statutes under Commercial Law, 12-
1504 and 14-501. Requires one unsuccessful repair
for braking or steering system failures, otherwise
four repair attempts or 30 calendar days out of ser-
vice.
MICHIGAN: See MCL 257.1401 et seq. Requires four
repair attempts or 30 business days out of service.
MINNESOTA: See Minnesota Statutes Annotated,
325F.665 for new cars, 325F.662 for used ones. Re-
quires one unsuccessful repair for braking or steer-
ing system failures, otherwise four repair attempts or
30 business days out of service.
MISSISSIPPI: See STATUTE Sectiosnns 63-17-151 to
165. Requires three repair attempts or 15 working
days out of service.
MISSOURI: See Missouri Revised Statutes 407.560 to
579. Requires four repair attempts or 30 business
days out of service.
AUTOMOBILES—BUYING A CAR/REGISTRATION
42 GALE ENCYCLOPEDIA OF EVERYDAY LAW
MONTANA: See Montana Code, Title 61, Chapter,
Part 5, Section 61-4-501. Requires four repair at-
tempts or 30 business days out of service.
NEBRASKA: See Chapter 60 (Motor Vehicles), Sec-
tions 60-2701 to 2709. Requires four repair attempts
or 40 business days out of service.
NEVADA: See Nevada Revised Statutes, 597.600 to
680. Requires four repair attempts or 30 calendar
days out of service.
NEW HAMPSHIRE: See Title 31, Chapter 3570. Re-
quires three repair attempts or 30 business days out
of service.
NEW JERSEY: See Title 56, Sections 56-12-29 to 49.
Requires three repair attempts or 30 calendar days
out of service.
NEW MEXICO: See Chapter 57, Article 16A. Requires
four repair attempts or 30 business days out of ser-
vice.
NEW YORK: See New York State General Business
Laws (GBL), Section 198a for new vehicles, Section
198b for used vehicles. Requires four repair attempts
or 30 calendar days out of service. Substantial defects
must be repaired within 20 days of receipt of notice
from the consumer using certified mail.
NORTH CAROLINA: See Chapters 20 of the North
Carolina General Statutes, Article 15A. Requires four
repair attempts or 20 calendar days out of service.
NORTH DAKOTA: See Title 51 of the Century Code,
Sections 51-07-16 to 22. Requires three repair at-
tempts or 30 business days out of service.
OHIO: See ORC 1345.71 to 78. Requires one repair
attempt for condition likely to cause death or injury,
three repair attempts for same defect, eight total re-
pair attempts, or 30 calendar days out of service.
OKLAHOMA: See Section 15-901 of the Oklahoma
Statutes. Requires four repair attempts or 45 calen-
dar days out of service.
OREGON: See ORS 646.315 to 75. Requires four re-
pair attempts or 30 business days out of service.
PENNSYLVANIA: See Pennsylvania Statutes Annotat-
ed, Title 73, Chapter 28, Sections 1951 to 63. Re-
quires three repair attempts or 30 calendar days out
of service.
RHODE ISLAND: See Rhode Island Code, Title 31
(Motor and Other Vehicles), Chapter 31-5.2. Re-
quires four repair attempts or 30 calendar days out
of service.
SOUTH CAROLINA: See Title 56 (Motor Vehicles),
Chapter 28, Section 56.28-10. Requires three repair
attempts or 30 calendar days out of service.
SOUTH DAKOTA: See Title 32, Chapter 32-6D.1 to
11. Requires four repair attempts plus a final attempt.
TENNESSEE: See Tennessee Code, Chapter 24, Sec-
tions 55-24-201. Requires four repair attempts or 30
calendar days out of service.
TEXAS: See Motor Vehicle Commission Code, Article
4413(36) of Vernon’s Texas Civil Statutes. Requires
two repair attempts for serious defects, otherwise
four repair attempts or 30 days out of service.
UTAH: See Utah Administrative Code, Rule R152-20.
Requires four repair attempts or 30 business days out
of service.
VERMONT: See Chapter 115, Sections 4170 to 4181.
Requires three repair attempts or 30 calendar days
out of service.
VIRGINIA: See Title 59.1, Chapter 17.3, Sections 59.1-
207.9 to 207.16. Requires one repair for serious safe-
ty defect, otherwise three repair attempts or 30 cal-
endar days out of service.
WASHINGTON: See RCW Title 19, Chapter 118, Sec-
tion 19.118.005. Requires two repair attempts for se-
rious safety defect, otherwise four repair attempts or
30 calendar days out of service.
WEST VIRGINIA: See West Virginia Code 46A-6A, Sec-
tions 1 to 9. Requires three repair attempts or 30 cal-
endar days out of service.
WISCONSIN: See Chapter 218.015. Requires four re-
pair attempts or 30 days out of service.
WYOMING: See Title 40, Chapter 17, Section 101. Re-
quires three repair attempts or 30 business days out
of service.
Additional Resources
‘‘Buying a New/Used Car FAQ,’’ Nolo Online Law. Available
at http://www.nolo.com/lawcenter/faqs/detail.cfm.
Guide to Consumer Law. American Bar Association. Ran-
dom House, 1997.
Law for Dummies. Ventura, John,. IDG Books Worldwide,
Inc., 1996.
‘‘State by State Lemon Law Summaries.’’ Autopedia. Avail-
able at http://autopedia.com/html/HotLinks_
Lemon2.html.
AUTOMOBILES—BUYING A CAR/REGISTRATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 43
Organizations
The Automotive Consumer Action Program
(AUTOCAP)
URL: http://www.autocap.com
AUTOMOBILES—BUYING A CAR/REGISTRATION
44 GALE ENCYCLOPEDIA OF EVERYDAY LAW
AUTOMOBILES
DRIVER’S LICENSE
Sections Within This Essay:
• Background
• Requirements
• Identification
• Age
• Fees
• Tests
- Written
- Vision
- Driving
• Insurance
• Kinds of Licenses
- Instruction or Learner’s Permit
- Commercial
- International
- Motorcycle
• The Motor Voter Law
• Organ Donation
• Points
• License Suspension and Revocation
• Renewing License
• Additional Resources
Background
In the United States, driver licenses are issued by
the individual states for their residents. Protecting
the PUBLIC INTEREST is the primary purpose of driver’s
licenses. They are required for operating all types of
motor vehicles. Driver licenses are also used as an
important form of photo identification in the United
States, particularly in many non-driving situations
where proof of identity or age is required. As identifi-
cation, they are useful for boarding airline flights,
cashing checks, and showing proof of age for activi-
ties such as purchasing alcoholic beverages.
The first driver’s licenses were issued in Paris in
1893. To obtain one of these licenses, the driver was
required to know how to repair his own car as well
as drive it. In the United States, vehicle registration
began in 1901. Licensing drivers began in 1916, and
by the mid-1920s there were age requirements and
other restrictions on who could be licensed to oper-
ate an automobile.
This authority is delegated to the states, although
from the earliest years there have been challenges to
particular aspects of state licensing laws, as well as
outright challenges to the states’ rights to license ve-
hicles and drivers. With respect to the latter issue,
the U. S. Supreme Court noted in 1915 in the case
of Hendrick v. Maryland that ‘‘The movement of
motor vehicles over the highways is attended by
constant and serious dangers to the public and is also
abnormally destructive to the [high]ways themselves
. . . .[A] state may rightfully prescribe uniform regula-
tions necessary for public safety and order in respect
to the operation upon its highways of all motor vehi-
cles—those moving in interstate commerce as well
as others . . . .This is but an exercise of the police
power uniformly recognized as belonging to the
states and essential to the preservation of the health,
safety, and comfort of their citizens’’ 235 US 610.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 45
Driver’s licenses perform several vital functions.
When they were first issued in the United States,
driver’s licenses were meant to verify that the holder
had complied with the regulations associated with
operating a motor vehicle. In addition to verifying
compliance with state laws, driver’s licenses have be-
come an almost essential form of identification for in-
dividuals, law enforcement authorities, and others
who require validation of identity. Later, photo-
graphs were added to aid in positive identification
and to help reduce instances of FRAUD. Other mea-
sures to prevent COUNTERFEITING driver’s licenses in-
clude using thumb print and hologram images on
the license. Today, many states issues licenses with
magnetic strips and bar codes to provide for the elec-
tronic recording of driver license information if a traf-
fic CITATION is issued.
Requirements
When individuals present themselves at a state’s
licensing facility as an applicants for a driver’s li-
censes, there are several requirements they will be
required to meet in order to obtain a valid driver’s
license. State statutes provide very specific informa-
tion about the requirements for obtaining a driver’s
license. These requirements include:
• Residency requirements. For example, it is
common for states to require individuals to
apply for a driver’s licenses within a certain
time after moving to the state
• Production of identification documents
(there is a preference for photo identifica-
tion) and disclosure of the individuals’ Social
Security numbers
• Proof that the applicants meet the state’s
minimum age for possessing a driver’s li-
censes
• Three tests: a written exam, a vision test, and
a driving test
• If applicants are a foreign national, there
may be additional requirements imposed by
the state or by the INS
• Payment of the appropriate application fees
• Proof of insurance
• Production of any other valid licenses and in-
structions permits from other states or for-
eign countries
Identification
Besides providing proof of an individual’s’ permis-
sion to drive, a driver’s licenses are an important
form of identification. Before licenses are awarded by
a state, applicants will be asked to provide adequate
proof of identity. Some of the common forms of
identification accepted in many licensing facilities
are:
• A military identification card
• A United States PASSPORT
• A student driver permit
• A Social Security Card
• An identification card issued by a state
• An identification card issued by the U. S., a
state, or an agency of either the U. S. or a
state
• Immigration and Naturalization Service
identification cards or forms
• The Alien Registration Card, I-151. Note that
in some states, The Employment Authoriza-
tion for Legalization Applicant’s Card (I-688A
and I-688B) may not be sufficient as an iden-
tification document.
In many states, individuals may present a combi-
nation of documents as proof of identity. These
items may include:
• Birth certificate or registration cards. It is
best to bring either the original or a CERTIFIED
COPY
• The applicant’s social security card
• A marriage certificate or DIVORCE DECREE.
Again, original or certified copies will be
best.
• The applicant’s voter registration card
• A government-issued business or profes-
sional licenses (e.g. cosmetology license, law
license)
• The applicant’s vehicle registration and/or
title
• The applicant’s original or a certified copy of
his school transcripts
If applicants present documents written in a lan-
guage other than English, there may be a delay. Most
licensing facilities make GOOD FAITH efforts to read
AUTOMOBILES—DRIVER’S LICENSE
46 GALE ENCYCLOPEDIA OF EVERYDAY LAW
and interpret these documents. Occasionally, they
may need to FAX applicants’ documents to another
office for assistance. If an adequate translation can-
not be obtained, they may be asked to provide an En-
glish translation along with the original document
Age
States require applicants for drivers’ licenses to be
at least 16 years of age. In many states, if applicants
are younger than 18, they must also provide a signed
parental authorization form. This form states a per-
son’s relationship to the applicant for a license and
gives permission for the person to acquire a driver’s
license.
Usually, states will require that the parental autho-
rization form be notarized or signed in the presence
of the proper authority at a licensing facility. When-
ever individuals present themselves for a driver’s
EXAMINATION, they must provide proof of their identi-
fication and age. This can be done with an official
document such as a birth certificate or passport.
Fees
When individuals apply for a driver’s license, they
are required to pay a fee based on the type of license
for which they are applying and for any endorsement
attached to the license. There are also fees assessed
for license renewals and extensions. In most states,
fees must be paid either in cash or by personal
check. Few states accept credit cards or DEBIT cards
for payment of licensing fees. License fees are fairly
moderate, but they do vary from state to state. Indi-
viduals can check with their state’s department of
motor vehicles for a fee schedule for driver’s li-
censes, endorsements, or permits.
Tests
Written
As part of the driver’s license application process,
individuals will be required to take a written test.
This exam tests their knowledge of the rules of the
road and their ability to recognize and interpret road
signs. Usually, they must successfully complete the
written exam prior to scheduling the driving test.
Vision
Good eyesight is of utmost importance for the
safe operation of motor vehicles. Therefore, as part
of the driver’s license application process, the de-
partment of motor vehicles in the state will adminis-
ter a vision test. This is a brief test meant to evaluate
the applicants’ eyesight. The vision test evaluates
three factors:
• Clarity of vision
• How far individuals can see to either side
while looking straight ahead (peripheral vi-
sion)
• Depth and color perception
If individuals wear glasses or contact lenses, they
will be asked to perform the exam with their correc-
tive eyewear both on and off. The results of the test
will determine whether there are restrictions placed
on their driver’s licenses (e.g. must wear corrective
eyewear when operating a motor vehicle).
Driving
The final portion of a driver’s license application
procedure is the driving test. Applicants will be re-
quired to provide a safe vehicle for the test. They will
also need to provide proof of automobile insurance
prior to the driving test. An unlicensed applicant may
not use a rental car for the driving test. The driving
test may be waived if an applicant has a valid driver
license from another state and meets all other appli-
cable requirements. The driving test will be required
of applicants with licenses from foreign countries, in-
cluding Mexico and Canada.
The driving test is an opportunity to demonstrate
that the applicants are a safe drivers. There will be
no passengers other than an examining official—a
local or state police officer or authorized department
of motor vehicles personnel—allowed on the drive
test. The EXAMINER in the front seat will give the ap-
plicants driving directions. The directions should be
given in a clear manner and with enough time to
allow the applicants to take appropriate action. Ap-
plicants will never be asked to do anything unsafe or
illegal.
The exact procedure for driving tests will vary
somewhat from state to state, although several fea-
tures of these tests are fairly consistent throughout
the United States. Before the test applicants will be
asked to use their arms to signal for a right turn, left
turn, slow, or stop. Along with noting their driving
skills in normal traffic the examiner will also ask them
to perform certain maneuvers such as parking on a
hill, parallel parking, entering traffic from a parked
position, and backing out of a driveway or around a
corner.
AUTOMOBILES—DRIVER’S LICENSE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 47
A few of the most common test items the examin-
er will observe are:
• Backing up
• Controlling the vehicle
• Driving in traffic
• Driving through blind or crowded intersec-
tions
• Judging distance
• Leaving the curb
• Obeying traffic signals and signs
• Respecting the rights of pedestrians and
other drivers
• Starting the vehicle
• Stopping
Insurance
When individuals obtain a driver’s licenses they
will be required to provide proof that they have pur-
chased adequate automobile insurance. Among
other things, automobile insurance helps pay for
medical bills and car repairs if drivers are in an auto-
mobile accidents. Every state requires drivers to pur-
chase some auto insurance, and they specify the
minimum amounts required. Individuals can pur-
chase insurance from any company they choose, but
should they be stopped by the police or should they
be involved in a traffic accidents, they will most likely
be required to supply proof of current insurance in
their automobile or on their persons. There are sev-
eral kinds of automobile insurance, including the fol-
lowing:
• Liability. There are two principal aspects to
liability insurance, bodily injury coverage
and property damage coverage. Bodily inju-
ry liability insurance covers costs up to cer-
tain limits if drivers kill or injure someone
else in an accident. In these cases the driv-
ers’ insurance company pays for expenses
like legal fees (if the insured is sued), medi-
cal bills, and lost wages of the other person
if the insured is are at-fault. Property damage
liability insurance covers the costs associat-
ed with damage to someone else’s car or
other property if the insured damaged that
property while driving. Both bodily injury
and property damage liability insurance can
be purchased in various amounts, but the
state that licenses the individual to drive will
set minimum amounts which that person
must purchase.
• Uninsured motorist bodily injury coverage.
This type of insurance covers individuals for
their bodily injury caused by a hit-and-run
driver or from injuries caused by a driver
who has no auto liability insurance.
• Collision insurance. This type of insurance
coverage reimburses drivers for damage to
their cars if the car collides with another ob-
ject. To figure out how much an insurance
company will pay to fix the insured’s car, a
claims ADJUSTER may look at the damage, or
the insured may be asked to get estimates
from body shops. If the insured’s car is ‘‘to-
taled,’’ the insured person gets what the car
is worth (according to tables of vehicle val-
ues) at the time of the accident.
• Comprehensive insurance. Comprehensive
insurance covers the cost of damage to the
insured’s car caused by most other causes
such as fire, theft, hail, or other natural disas-
ters. If the insured have a loan on the vehi-
cle, the insured’s lender may require the in-
sured to carry this type of insurance.
The cost of automobile insurance varies according
to a number of factors. For example, statistics show
that drivers under the age of 25 are more likely to be
involved in accidents; insurance companies charge
them more for coverage. If drivers get a ticket for
speeding or other traffic violation, their insurance
costs may go up. Models of vehicles that are more
dangerous to drive (e.g. convertibles) or cost more
to repair if they’re damaged will generally cost more
to insure than safer cars or cars that cost less to re-
pair. And if the insured lives in a city with greater
chances that the car will be hit, stolen, or vandalized
are higher—, the insurance costs will probably be
higher as well.
There are some things individuals can do to help
keep the cost of insurance down:
• Choose the vehicle carefully. Remember
that some vehicles—like convertibles and
sports cars—cost more to insure than oth-
ers.
• Consider the age and condition of the vehi-
cle. If the vehicle is an older model, it may
not be cost-effective to pay for insurance
that covers physical damage to the older car.
AUTOMOBILES—DRIVER’S LICENSE
48 GALE ENCYCLOPEDIA OF EVERYDAY LAW
• Drive lawfully and defensively to avoid viola-
tions and accidents.
• Increase the DEDUCTIBLE and thus lower the
premium, however realize that by doing so,
it will cause the owner to pay more out of
pocket each time they have a claim.
• Students who get good grades may enjoy
lower rates. For example, some companies
give discounts to students with a B average
or better.
Kinds of Licenses
There are several kinds of driver’s licenses. There
are important distinctions among these types of li-
censes, as well as different requirements for obtain-
ing them. The most common are:
• Instruction or learner’s permit
• Commercial licenses
• Internationa,
• Motorcycle
Instruction or Learner’s Permit
In most states, individuals may apply for a driver
instruction permit—often called a ‘‘learner’s per-
mit’’—as early as the age of 15 on the condition that
they are also enrolled in an approved traffic safety ed-
ucation course. Driving privileges under a learner’s
permit are restricted. The restrictions that apply to
the learner’s permit will vary from state to state. They
may include restrictions on the age of the licensed
driver accompanying the learner/driver, the hours in
which the learner/driver may be able to drive, and
even the types of highways that learners may drive
on.
In some states, individuals may be able to apply
for a learner’s permit without being enrolled in a
class, but they must take the written driving test to
prove they are capable of understanding the funda-
mentals of driving and the rules of the road. Those
with a learner’s permit usually may drive a vehicle as
long as a licensed driver is present in the vehicle at
the time. There are additional requirements stating
how long they must have a learner’s permit before
they may obtain a permanent license. Individuals can
check with their state’s department of transportation
for the exact rules which will apply in their situation.
As with a permanent driver’s license, when they
apply for a learner’s permit, they will be required to
supply proof of identification. Proof of age, docu-
mented parental consent, and other forms are also
required, as well as a fee for the permit.
Commercial
Since 1992 drivers of commercial motor vehicles
(CMV) have been required to have a commercial
driver’s license (CDL). The Federal Highway Admin-
istration (FHWA) issues rules and standards for test-
ing and licensing CMV drivers. These standards per-
mit states to issue CDLs to drivers only after the
drivers passes knowledge and skills tests related to
the type of vehicle to be operated. CDLs fall into sev-
eral categories depending on the weight of the vehi-
cle and/or load being pulled and depending on the
number of passengers in the vehicle. These catego-
ries are:
• Class A: The vehicle weighs 26,001 or more
pounds and the vehicle(s) being towed is in
excess of 10,000 pounds
• Class B: The vehicle weighs 26,001 or more
pounds, or any such vehicle towing a vehicle
not in excess of 10,000 pounds
• Class C: Any vehicle or combination of vehi-
cles that is either designed to transport 16
or more passengers, including the driver or
is marked as a carrier of hazardous materials
Drivers who operate CMVs will be required to
pass additional tests to obtain any of the following
endorsements on their CDL:
• T: Double/Triple Trailers
• P: Passenger
• N: Tank Vehicle
• H: Hazardous Materials
• X: Combination of Tank Vehicle and Hazard-
ous Materials
A state will determine the appropriate license fee,
the rules for license renewals, and the age, medical
and other driver qualifications of its intrastate com-
mercial drivers. Drivers with CDLs who cross state
lines must meet the Federal driver qualifications (49
CFR 391). All CDLs contain the following informa-
tion:
• Color photograph or digital image of the
driver
• Notation of the ‘‘air brake’’ restriction, if is-
sued
• The class(es) of vehicle that the driver is au-
thorized to driver
AUTOMOBILES—DRIVER’S LICENSE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 49
• The issue date and the expiration date of the
license
• The driver’s date of birth, sex, and height
• The driver’s full name, signature, and ad-
dress
• The driver’s state license number
• The endorsement(s) for which the driver
has qualified
• The name of the issuing state
• The words ‘‘Commercial Driver’s License’’
or ‘‘CDL’’
States may issue learner’s permits for training on
public highways as long as learner’s permit holders
are required to be accompanied by someone with a
valid CDL appropriate for that vehicle. These learn-
er’s permits must be issued for limited time periods.
International
If individuals are traveling to an English-speaking
country, they may be able to get by with their U. S.
driver’s licenses. However, many other countries will
ask that they also obtain an International Driver’s
Permit, which is a document that translates the infor-
mation on the home driver’s license into 11 different
languages. More than 160 countries recognize the In-
ternational Driver’s Permit. If individuals plan to rent
a car on their trip abroad, they will probably be asked
to present one along with their valid state license.
Some countries require special road permits, instead
of tolls, to use on their major roads. They will fine
those found driving without such a permit.
An International Driver’s Permit must be issued in
the home country. To obtain an International Driv-
er’s Permit, individuals will need to produce two
passport photos and their valid state driver’s li-
censes. Currently, an International Driver’s Permit
costs $10 for a one-year issue. Individuals must com-
plete an application, which can be printed online or
submitted by mail. Only two agencies in the United
States are authorized to issue these licenses: the
American Automobile Association and the American
Automobile Touring Alliance. However, travelers
should remember that an International Driver’s Per-
mit is not a license in and of itself, so drivers can not
establish a separate driving record with one. If driv-
ers get a traffic citation while driving with their inter-
national driver’s permit, it will be reflected on their
state licenses.
To apply for an international driving permit, indi-
viduals must:
• Be at least age 18
• Present two passport-size photographs
• Present their valid U. S. licenses
In most cases, U. S. auto insurance will not cover
drivers abroad; however, their policy may apply
when they drive to Mexico or Canada. Even if their
U. S. policy is valid in one of these countries, it may
not meet the minimum requirements in Canada or
Mexico. Individuals may check with the embassy or
consulate of the country they plan to visit for specific
insurance requirements. Overseas car rental agen-
cies usually offer auto insurance for an additional fee,
but in some countries, the required coverage is mini-
mal. If drivers rent a cars overseas, they ought to con-
sider purchasing insurance coverage that is equiva-
lent to the amount of automobile insurance coverage
that they carry at home.
Motorcycle
All states regulate the issuance of motorcycle per-
mits and motorcycle endorsements. All states re-
quire that those wishing to operate motorcycles pass
motorcycle knowledge and skill tests. These tests are
separate from standard automobile driver license
tests. Some states have mandatory motorcycle train-
ing in addition to the knowledge and skill tests. In
most cases if individuals have successfully completed
an approved motorcycle skills course, they may bring
their completion cards to the vehicle licensing facility
in their state (usually within a limited time) and if
they pass the knowledge test, the skill test will be
waived. As with other operator licenses, states assess
a fee for issuing a motorcycle license, and individuals
will also be required to provide proof that they are
in compliance with the state’s vehicular insurance
laws.
The Motor Voter Law
The National Voter Registration Act (commonly
referred to as ‘‘motor voter,’’ or, ‘‘NVRA’’) took effect
in 1995. The NVRA requires states to offer voter regis-
tration to citizens when they apply for drivers’ li-
censes. This tie between driver’s licensing agencies
or facilities and voter registration is the source of the
term ‘‘motor voter.’’ When individuals obtain drivers’
licenses, states can also assess needs and benefits for
other assistance programs such as food stamps,
MEDICAID, Aid to Families with Dependent Children,
and Women, Infants, and Children. The Act also im-
poses on states a requirement to designate addition-
al offices for voter registration services.
AUTOMOBILES—DRIVER’S LICENSE
50 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Additional provisions of the law require states to
accept a national mail-in voter registration form and
to establish guidelines for maintaining the accuracy
of voter registration rolls—most notably prohibiting
states from removing registrants from the rolls for
not voting. Despite the mandatory provisions, states
have some discretion in how they implement the
act’s provisions. The NVRA requires states to register
voters in three specified ways in addition to any
other procedures the state uses for voter registra-
tion:
• Simultaneous application for a driver’s li-
cense and registration to vote
• Mail-in application for voter registration
• Application in person at designated govern-
ment agencies
Election officials must send all applicants a notice in-
forming them of their voter registration status.
Organ Donation
Individuals can state on their driver’s licenses
their desire to donate their organs or bodily tissues
upon their deaths. There is a brief questionnaire
about organ donation that is part of the application
for a driver’s license. When individuals answer ‘‘yes’’
to the questions about organ and tissue donation on
their license applications, then the department of
motor vehicles will place a symbol (e.g. a red heart
with a ‘‘Y’’ in the center) on the front of their li-
censes, permits, or ID cards. Individuals must also
sign the back of the license and discuss their wish to
donate their organs with their families. By indicating
their wish to donate their organs, their names will
most likely be entered in a computerized registry.
For more information about organ and tissue dona-
tion, individuals can see ‘‘Organ Donation’’ in the
Gale Encyclopedia of Everyday Law.
Points
States use various methods to help enforce their
traffic safety laws. All states use some variation of a
point system as part of this effort. Depending on the
state, individuals may begin with a certain number of
points, have points deducted for traffic violations, or
they may have points added for traffic violations.
Points are assigned for only moving violations (viola-
tions that occur when the car is being driven); points
are not assigned for parking, licensing, or other non-
moving violations. If a driver accumulates (or loses)
a certain number of points within a prescribed
amount of time, that driver’s driving privileges may
be suspended or revoked.
These point systems identify persistent or repeat
violators. Several violations may indicate that a state
should take action against the driver. Point systems
may not be the only basis for suspending or revoking
driver licenses. For example, several speeding viola-
tions in an 18-month period, or a single drunk driv-
ing violation, could result in the state’s mandatory re-
vocation of a license, regardless of the driver’s
number of points. While a CONVICTION is required for
the points to go on a record, the conviction date is
not used to determine the point total. Points are re-
duced by not having any further violations over a pe-
riod of time. The point systems differ in important
ways from state to state. People can contact their
state’s department of motor vehicles for more de-
tails.
License Suspension and Revocation
All licenses expire at some point, but there are
ways to lose driving privileges before the license’s ex-
piration date. Early termination of the validity of a
driver’s license is known as suspension (where a li-
cense is temporarily rendered invalid), and revoca-
tion (where driving privileges granted by a license
are fully terminated). In both cases, drivers would be
are notified by the state and would have the right to
a HEARING. Examples of driver license suspensions
and revocations are:
• Driving Under the Influence (DUI) of alco-
hol and other drugs.: If a breath, blood, or
urine test reveals individuals are driving
under the influence of alcohol or other
drugs, or if individuals are convicted of DUI
offenses, their licenses may be suspended or
revoked.
• Failure to Appear: If individuals receive a
traffic ticket and do not pay the fine on time
or do not appear in court when required
their licenses are subject to being suspend-
ed or revoked.
• Security Deposit: If individuals are in an acci-
dent and they do not have liability insurance,
their driver licenses and their vehicle regis-
tration plates may be suspended.
• CHILD SUPPORT ARREARS: If individuals are in
arrears in court ordered child support pay-
AUTOMOBILES—DRIVER’S LICENSE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 51
ments the state may suspend or revoke li-
censes.
• Truancy: Juveniles can lose their driver’s li-
censes, or their issuance may be delayed for
HABITUAL absence from school.
A driver’s license suspension or revocation is usu-
ally handled as a separate action from any other
court case in which individuals may be involved. A
state does not automatically reinstate driving privi-
leges if licenses were suspended or revoked. Individ-
uals must follow reinstatement procedures to regain
their driving privileges, even if the court case under-
lying the suspension or revocation was dismissed.
Furthermore, all 50 states share license suspension
and revocation information. If there is an active sus-
pension or revocation in one state, no other state
may issue a driver’s license. Driving while suspended
or revoked are serious criminal offenses. If individu-
als are apprehended driving a vehicle with a sus-
pended or revoked license, they could pay hefty
fines and even face a term of IMPRISONMENT.
Renewing License
A driver’s license expires within a statutorily set
number of years after the driver first acquires it. The
longevity of a license varies somewhat from state to
state, with either three or five years being the normal
term of a license. In some states, individuals may be
able to renew their licenses by mail, but usually they
will be required to appear in person and pass a vision
test. Additionally, they may be required to take other
exams if licensing officials in their state determine
that it is necessary. States assess fee for a license re-
newals. Individuals should watch out for penalties if
they fail to meet deadlines to renew their licenses
after they has expired.
Additional Resources
‘‘A Citizen’s Guide to the National Voter Registration Act
of 1993’’ League of Women Voters, 1994. Available at
http://www.nmia.com/lwvabc/TOC.html.
‘‘State and Local Government on the Net’’ Piper Re-
sources, 2002. Available at http://
www.statelocalgov.net/index.cfm.
‘‘State Statutes on the Internet: Motor Vehicles.’’ Cornell
University, 2002. Available at http://
www.law.cornell.edu/topics/state_statutes3.html#
motor_vehicles,. Cornell University, 2002.
Organizations
The International Council on Alcohol, Drugs
& Traffic Safety (ICADTS)
ICADTS Secretary, Mississippi State University
Mississippi State, MS 39762 USA
Phone: (601) 325-7959
Fax: (601) 325-7966
E-Mail: bwparke r@ssrc.msstate.edu
National Highway Traffic Safety
Administration (NHTSA)
400 7th St. SW
Washington, DC 20590 USA
Phone: (888) 327-4236
E-Mail: webmaster@nhtsa.dot.gov
URL: http://www.nhtsa.dot.gov/
U. S. Department of Transportation
400 7th Street, S.W.
Washington, DC 20590 USA
Phone: (202) 366-4000
E-Mail: dot.comments@ost.dot.gov
URL: http://www.dot.gov
AUTOMOBILES—DRIVER’S LICENSE
52 GALE ENCYCLOPEDIA OF EVERYDAY LAW
AUTOMOBILES
INSURANCE
Sections within this essay:
• Background.
• Liability Insurance
- What Is Covered?
- Liability Limits
• Collision and Comprehensive Coverage
- Determining Value of Car
• Uninsured/Underinsured Motorist Coverage
• No Fault Insurance
• State-By-State Insurance Requirements
• Additional Resources
Background
For anyone who has ever owned a car, auto insur-
ance is something almost impossible to do without.
Forty-six states and the District of Columbia now re-
quire automobile owners to carry some form of auto-
mobile insurance, and even if you are residents of
one of the few states that does not require some sort
of insurance policy on your car, it’s a good idea prob-
ably if you to have insurance anyway.
Why? Because accidents do happen, they can be
expensive, and auto insurance is often the only way
for car owners to protect themselves from damages,
liability, and possible a hefty court SETTLEMENT. As
with anything else so ubiquitous, there are different
types of auto insurance designed to suit different
types of drivers and cars. Auto insurance require-
ments vary from state-to-state, with some states re-
quiring more coverage than others. Some states also
have NO FAULT laws in place, which require insurers
to pay for certain accidents no matter who is at fault.
Whatever the case, it is good to know some of the
basics of auto insurance before deciding on buying
a specific policy for your car.
Liability Insurance
Liability insurance is the most basic form of insur-
ance. It pays if the insured is at fault in an accident.
Generally speaking, it covers medical injuries and
property damage to the other driver. It can also
cover for pain and suffering and legal bills of the
other driver as well. Owners are required to carry lia-
bility insurance in the vast majority of states. It is also
required for rental cars and for drivers of third-party
owned vehicles.
What Is Covered?
Liability insurance usually covers the named in-
sured on the policy, the named insured’s spouse and
children, any blood relative of theirs by marriage, or
ADOPTION, including foster children, and anyone driv-
ing the car with the insured’s permission. It covers
named vehicles in the policy, as well as added vehi-
cles that the named insured replaces the original
named vehicle with in the policy. Most of the time
(though not always), it also covers non-named vehi-
cles if the named insured was driving, and any addi-
tional non-named vehicle the named insured ac-
quires during the policy period, providing the named
insured informs the insurance company during a
specified period.
Temporary vehicles that substitute for an insured
vehicle that is out of service because of repairs or be-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 53
cause it has been totaled are usually covered as well,
though again, this is not always the case and an in-
sured individuals should check their policies to de-
termine the exact limits of their coverage.
Drivers who use a named vehicle without the
named insured’s permission are not covered by a lia-
bility policy, although the vehicle itself may be. Also
rental cars that are not being used to replace a
named vehicle being repaired may not be covered
unless the named insured pays a special premium.
Liability Limits
In the 47 states and the District of Columbia that
require liability insurance, a minimum amount of
coverage is also required. Even the states that do not
require liability insurance insist that when liability in-
surance is purchased in the state, it needs to meet
a minimum requirement.
These minimum requirements are usually repre-
sented by a series of three numbers. The first num-
ber represents the amount of money (in thousands)
an insurance company is required to pay for bodily
injury for one person injured in an accident. The sec-
ond number represents the amount an insurance
company is required to pay in total for all the injuries
in an accident. The final number represents the
amount the insurance company must pay for proper-
ty damage in an accident.
For example, the liability requirements of the
state of Alabama are usually represented as 20/40/10.
Thus, insured drivers in Alabama are required to
carry a minimum of $20,000 of medical coverage for
a single person injured in an accident, $40,000 of
medical coverage for all people injured in an acci-
dent, and $10,000 of coverage for property damage.
Insurance companies are not allowed to sell poli-
cies that are under the liability limits. In Alabama, a
motorist could not buy $10,000 worth of coverage
for a single person injured in an accident or $5,000
of coverage for property damage. Insurance policies
must at least meet the minimum requirements, al-
though they can offer more coverage than the re-
quirements. States that do not mandate liability in-
surance also have liability minimums—insurers
cannot sell policies in those states below the mini-
mums.
Not all states require medical liability insurance to
be carried by drivers: - in Florida and New Jersey,
only property damage liability is mandatory. Califor-
nia also allows lower minimums for eligible low-
income drivers in the California Automobile As-
signed Risk Plan. In New York, drivers are required
to carry a higher amount of liability insurance de-
signed to cover injury from the accident which re-
sults in death.
States have different laws as to when proof of in-
surance must be presented. Some states oblige such
proof to be offered when a car is registered, others
ask for such proof only when drivers are charged
with a traffic violation or have an accident on their
records.
Collision and Comprehensive Coverage
Besides liability, drivers can get other coverage
from auto insurance. Collision coverage insures driv-
ers for the damage done to their own cars by an acci-
dent that was their fault. Collision insurance is the
most expensive auto insurance coverage, and may
come with a high DEDUCTIBLE.
Comprehensive coverage pays for damage to a
driver’s car that was caused by events other than a
car accident. Weather damage, theft damage, and fire
damage are just some of the events covered by com-
prehensive. Many policies even cover damages from
hitting a deer. Comprehensive coverage is not as ex-
pensive as collision, but it is still more expensive than
liability and usually comes with a deductible.
Determining Value of Car
With both collision and comprehensive, insurers
will usually only cover the ACTUAL CASH VALUE (ACV)
of the cost of the car. ACV is determined by taking
the replacement cost of the vehicle—what it would
cost to repair damage to the vehicle without deduct-
ing for depreciation—and subtracting the
DEPRECIATION. So, if a car is bought for $10,000, and
is 10 years old, the ACV of the car would be substan-
tially less than $10,000.
Drivers willing to pay a higher premium can get
insurance policies that will cover the replacement
costs of the car. Depending on the age and condition
of the vehicle, these kinds of policies may be worth
it, although they are usually not recommended for
older vehicles.
Uninsured/Underinsured Motorist
Coverage
Uninsured motorist (UM) coverage provides cov-
erage for the insured who is hit by a motorist who
AUTOMOBILES—INSURANCE
54 GALE ENCYCLOPEDIA OF EVERYDAY LAW
is uninsured or by a hit-and-run driver who remains
unidentified. Since the injured party cannot get
money for their injuries from the driver of the liable
vehicle, uninsured motorist coverage picks up the
bill. UM coverage is required in many states as part
of a driver’s liability coverage.
UM coverage pays for the driver or a relative who
lives with the driver, or anyone else driving a named
vehicle with a driver’s permission, or anyone else rid-
ing with the driver in the named vehicle. UM cover-
age also covers the insured if they are passengers in
someone else’s car, although the passenger’s UM in-
surance will not contribute until the driver’s UM in-
surance is exhausted. For a hit-and-run, a driver is
usually required to notify the police within 24-hours
of the accident to receive the benefits of UM cover-
age.
Underinsured motorist (UIM) coverage operates
in a similar fashion. With UIM coverage, the liability
policy of the driver at fault is not enough to cover the
injuries of the other driver or passengers. UIM cover-
age pays out the difference for the non-liable driver.
Generally speaking, UM or UIM coverage pays for
only medical injury to the driver and passengers of
the hit car. For a higher premium, it can cover prop-
erty damage to the automobile as well. UM and UIM
coverage is reduced by amounts the driver receives
from other insurance coverage such as personal
medical insurance or worker’s compensation.
No Fault Insurance
Since 1970, many states have passed a no-fault in-
surance law. This law requires drivers to buy insur-
ance that covers their injuries in an auto accident no
matter who is at fault. No-fault laws, which were first
enacted in Canada in the 1940s and 1950s, are an at-
tempt to rein in LITIGATION by making the determina-
tion of fault irrelevant, thus allowing drivers to get re-
imbursed for their injuries faster and without court
cost and delay.
Most no-fault insurance provides for very limited
coverage—only providing for medical bills and lost
income, and sometimes vehicle damage, though that
is often paid outside no-fault by utilizing liability in-
surance. No fault does not pay for medical bills
higher than the insured PERSONAL INJURY Protection
(PIP) limits. If medical bills are higher, the insured
must file a liability claim against the driver at fault.
Some states put no restriction on an injured party’s
right to sue under no-fault,; other states require the
injured party to reach a certain threshold of injury,
either monetary or physical, before the party can sue
the other driver.
In addition, no-fault puts restriction on suing for
pain-and-suffering damages. All states that have no-
fault allow recovery for pain and suffering in the
event of death; however, pain and suffering lawsuits
may not be allowed for other injuries. Examples of
injuries which no-fault states allow no or only limited
recovery for pain and suffering include dismember-
ment, loss of bodily function, serious disfigurement,
permanent injury or DISABILITY, serious fracture and
temporary disability or loss of earning capacity.
Two states, Pennsylvania and New Jersey, allow
policy holders to determine if their no-fault insur-
ance gives them the right to sue for pain and suffer-
ing expenses. If the drivers are willing to pay a higher
premium, they have an expanded right to sue for
pain and suffering.
State-By-State Insurance Requirements
The following is a list of state insurance liability re-
quirements as of 2001, showing also whether the
state is a no-fault state and whether uninsured mo-
torist coverage is required. All liability minimums are
in thousands of dollars, and the numbers are listed
in the following order: coverage for injury per per-
son, coverage for total injury, and coverage for prop-
erty damage.
ALABAMA: Liability insurance required; liability mini-
mums 20/40/10
ALASKA: Liability insurance required; liability mini-
mums 50/100/25
ARIZONA: Liability insurance required; liability mini-
mums 15/30/10
ARKANSAS: Liability insurance required; liability
minimums 25/50/25
CALIFORNIA: Liability insurance required; liability
minimums 15/30/5
COLORADO: Liability insurance required; liability
minimums 25/50/15, no-fault state
CONNECTICUT: Liability insurance required; liability
minimums 20/40/10
DELAWARE: Liability insurance required; liability
minimums 15/30/5
AUTOMOBILES—INSURANCE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 55
DISTRICT OF COLUMBIA: Liability insurance re-
quired; liability minimums 25/50/10, uninsured mo-
torist coverage required
FLORIDA: Liability insurance required for property
damage only; liability minimums 10/20/10, no fault
state
GEORGIA: Liability insurance required; liability mini-
mums 25/50/25
HAWAII: Liability insurance required; liability mini-
mums 20/40/10, no fault state
IDAHO: Liability insurance required; liability mini-
mums 25/50/15
ILLINOIS: Liability insurance required; liability mini-
mums 20/40/15, uninsured motorist coverage re-
quired
INDIANA: Liability insurance required; liability mini-
mums 25/50/10
IOWA: Liability insurance required; liability mini-
mums 20/40/15
KANSAS: Liability insurance required; liability mini-
mums 25/50/10, no fault state, uninsured motorist
coverage required
KENTUCKY: Liability insurance required; liability
minimums 25/50/10, no fault state
LOUISIANA: Liability insurance required; liability
minimums 10/20/10
MAINE: Liability insurance required; liability mini-
mums 50/100/25, uninsured motorist coverage re-
quired
MARYLAND: Liability insurance required; liability
minimums 20/40/15, uninsured motorist coverage
required
MASSACHUSETTS: Liability insurance required; lia-
bility minimums 20/40/5, no fault state, uninsured
motorist coverage required
MICHIGAN: Liability insurance required; liability
minimums 20/40/10, no fault state
MINNESOTA: Liability insurance required; liability
minimums 30/60/10, no fault state, uninsured motor-
ist coverage required
MISSISSIPPI: Liability insurance required; liability
minimums 10/20/5
MISSOURI: Liability insurance required; liability mini-
mums 25/50/10, uninsured motorist coverage re-
quired
MONTANA: Liability insurance required; liability
minimums 25/50/10
NEBRASKA: Liability insurance required; liability
minimums 25/50/10
NEVADA: Liability insurance required; liability mini-
mums 15/30/10
NEW HAMPSHIRE: Liability insurance not required;
liability minimums 25/50/25, uninsured motorist cov-
erage required
NEW JERSEY: Liability insurance required; drivers
may choose standard or basic policy. For basic poli-
cy, minimums are 10/10/5 and only property damage
is mandatory. For standard policy, minimums are 15/
30/5 and all liability is mandatory. No fault state, unin-
sured motorist coverage required
NEW MEXICO: Liability insurance required; liability
minimums 25/50/10
NEW YORK: Liability insurance required; liability
minimums 25/50/10, liability must rise to 50/100/10
if injury results in death. No fault state, uninsured
motorist coverage required
NORTH CAROLINA: Liability insurance required; lia-
bility minimums 30/60/25
NORTH DAKOTA: Liability insurance required; liabil-
ity minimums 25/50/25, no fault state, uninsured mo-
torist coverage required
OHIO: Liability insurance required; liability mini-
mums 12.5/25/7.5
OKLAHOMA: Liability insurance required; liability
minimums 10/20/10
OREGON: Liability insurance required; liability mini-
mums 25/50/10, uninsured motorist coverage re-
quired
PENNSYLVANIA: Liability insurance required; liability
minimums 15/30/5, no fault state
RHODE ISLAND: Liability insurance required; liabili-
ty minimums 25/50/25, uninsured motorist coverage
required
SOUTH CAROLINA: Liability insurance required; lia-
bility minimums 15/30/10, uninsured motorist cover-
age required
SOUTH DAKOTA: Liability insurance required; liabili-
ty minimums 25/50/25, uninsured motorist coverage
required
AUTOMOBILES—INSURANCE
56 GALE ENCYCLOPEDIA OF EVERYDAY LAW
TENNESSEE: Liability insurance not required; liabili-
ty minimums 25/50/10
TEXAS: Liability insurance required; liability mini-
mums 20/40/15
UTAH: Liability insurance required; liability mini-
mums 25/50/10, no fault state
VERMONT: Liability insurance required; liability
minimums 25/50/10, uninsured motorist coverage
required
VIRGINIA: Liability insurance required; liability mini-
mums 25/50/20, uninsured motorist coverage re-
quired
WASHINGTON: Liability insurance required; liability
minimums 25/50/10, uninsured motorist coverage
required
WEST VIRGINIA: Liability insurance required; liability
minimums 20/40/10, uninsured motorist coverage
required
WISCONSIN: Liability insurance not required; liabili-
ty minimums 25/50/10, uninsured motorist coverage
required
WYOMING: Liability insurance required; liability
minimums 25/50/20
Additional Resources
Digest of Motor Laws. Compiled by Butler, Charle A., and
Kay Hamada, Editors., American Automobile Associa-
tion, Heathrow, FL, 1996.
http://www.iii.org ‘‘Minimum Levels Of Required Auto In-
surance,’’ Insurance Information Institute, 2002.
http://www.insure.com. ‘‘Auto Insurance,’’ Insure.com,
2002.
http://www.nolo.com. ‘‘Auto Insurance FAQ’s’’ Nolo Press,
2002.
West’s Encyclopedia of American Law. West Publishing
Company, St. Paul, 1998.
Organizations
Insurance Information Institute
110 William Street
New York, NY 10038 USA
Phone: (212) 346-5500
E-Mail: carys@iii.org
URL: http://www.iii.org
Primary Contact: Gordon Stewart, President
National Association of Insurance
Commissioners
2301 McGee St, Suite 800
Kansas City, MO 64108-2660 USA
Phone: (816) 842-3600
URL: http://www.naic.org
Primary Contact: Therese Vaughan, President
National Automobile Dealers Association
8400 Westpark Drive
McLean, VI 22102 USA
Phone: (800) 252-6232
E-Mail: nadainfo@nada.org
URL: http://www.nada.org
Primary Contact: H. Carter Myers, Chairman
AUTOMOBILES—INSURANCE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 57
This Page Intentionally Left Blank
AUTOMOBILES
LEASING A CAR
Sections within this essay:
• Background
• Federal Consumer Laws and Regulations
• Important Terms in Leasing Contracts and
Negotiations
• Disclosures Required Under CLA and Regu-
lation M
• Additional Disclosures Required under Cer-
tain State Laws
• Fraud and Overcharging
• Common Leasing Scams
• Should People Lease or Purchase?
• Additional Resources
Background
Twenty-five percent of all new cars moved off
dealers’ lots are leased. The contract that defines this
relationship between the consumers and the owner
of these vehicles is complicated, subject to regula-
tion, and often the site of misunderstanding and
FRAUDULENT activity. Leasing cars allows people to
drive cars they believe they could not afford to buy.
It appears to give people access to a better class of
cars, while another party remains in charge of the
car’s mechanical problems. For many people, leasing
a car feels like renting an apartment; it’s a way to live
without the responsibilities of personal ownership.
For some people perhaps leasing is a good idea; it
is certainly a good idea for the owners of leased vehi-
cles who profit generally at a rate of about three
times the list price of their vehicles.
A car LEASE is a contract between the party who
owns the car (LESSOR) and the one who will use the
car (leasee). A contract signed between these parties
governs the terms, those conditions under which the
car may be used and the obligation of each party.
Consumers sign their lease agreements with auto-
mobile dealers. Shortly thereafter, the dealers sell
the leased vehicles to a leasing company. The leasing
company may be, in fact, the car dealer, or it may be
a finance company subsidiary to a car manufacturer,
or an independent leasing company. This leasing en-
tity now owns the vehicles and is thus the lessor. Be-
sides profiting from the sale of the car, the dealer en-
joys financial incentives from the leasing company
and manufacturer rebates.
The leasee acquires no equity in the vehicle. Dur-
ing the lease period, in fact, the leasee pays the leas-
ing company for the car’s DEPRECIATION, that is the
difference between the list price of the car new and
the value it has once it has been driven for the leased
period. For this reason, consumers are better off
leasing vehicles that hold their value.
Federal Consumer Laws and Regulations
The Consumer Leasing Act (CLA) covers car leases
of at least four months in duration in which the total
amount of money a leasee owes does not exceed
$25,000 for a vehicle limited to personal use. In 1998,
regulations governing this act, referred to as Regula-
tion M, were established by the Federal Reserve
Board. Regulation M can be found in the CODE OF
FEDERAL REGULATIONS (CFR), Title 12, Part 213.4. The
CFR is available in many law libraries and on the In-
ternet. Leasing law specifies the disclosures which
must be contained in the lease document. For exam-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 59
ple, dealers must reveal the monthly and total cost
of the lease, additional fees, and potential mileage
and early termination penalties. Enforcement of
these disclosures is handled through the Federal
Trade Commission.
Important Terms in Leasing Contracts
and Negotiations
The lease contains terms which the consumer
may not know but which are important to under-
stand since they determine the nature of the contract
the consumer is signing. The following are the im-
portant terms to know.
• Amortized Amounts: These consist of fees a
lessor is required to collect, such as taxes
and registration fees These expenses are
paid off gradually as a part of each monthly
payment. Expenses for insurance and main-
tenance, when provided by the dealer, are
also amortized.
• Base Monthly Payment: This depreciation
amount is the value the vehicle is calculated
to lose each month, plus the amortized
amounts and the interest leasees pay in fi-
nancing charges over the lease term, divided
by the number of months the vehicle is
leased.
• Capitalized Cost: This is the total price of the
car as agreed to by the lessor and the leasee
over the life of the lease term, plus the regis-
tration fees, title fees, and taxes.
• Capitalized NET Cost: This is the amount the
leasee will have paid for the car after all pay-
ments have been made. This is the same fig-
ure as the adjusted capitalized cost as it
takes into account any DOWN PAYMENT made.
• Depreciation plus Amortized Amounts: The
difference between the value of the car at
the beginning of the lease and at the end of
the lease is the car’s depreciation. If the lea-
see does not exercise the option to purchase
the vehicle, the lessor will charge the leasee
a fee averaging between $250 and $400 to
cover the expenses the lessor incurs in pre-
paring the car for sale.
• Open-End Lease: When this lease is termi-
nated, the leasee is liable for the difference
between a lesser FAIR MARKET VALUE and a
comparable residual value given to the value
in the lease. The residual value will be con-
sidered unreasonable if it exceeds the fair
MARKET VALUE by more than triple that
amount.
• Close-End Lease: When this lease is termi-
nated, the leasee is not responsible for pay-
ing the difference between the residual
value given to the vehicle in the lease and a
lesser fair market value.
• Lease Rate: This figure is that percentage of
the monthly payment which is rental charge.
Some dealers will disclose to a lessor what
this amount is. As of 2002, no federal stan-
dard governs how this amount is calculated,
and dealers are not required to disclose how
they arrive at the amount. However, if a
lease rate is used in an advertisement, there
must also be a disclaimer that the lease rate
may not be an accurate reflection of the total
cost leasee will pay for their leases. This fig-
ure is frequently used to deceive customers
into believing they are paying less interest in
financing the lease than they actually are.
• Money Factor: This is a decimal number
used to determine the proportion of the
monthly payment that consists of a rental
charge. This figure is similar to an interest
charge and is not required to be disclosed
under federal law.
• Reasonable Standard: The Consumer Leas-
ing Act stipulates that penalties for early ter-
mination and late payments or ceasing to
make payments must be reasonable accord-
ing to the amount of harm actually experi-
enced or anticipated by the lessor.
Disclosures Required Under CLA and
Regulation M
When dealers and consumers discuss a potential
lease, dealers are required by law to disclose certain
factors. Disclosures include a description of the vehi-
cle, the amount due at signing or delivery, the pay-
ment schedule, and other charges payable by the lea-
see. These charges need to be itemized. Dealers
need to disclose the total dollar amount of the pay-
ments. Also the dealer needs to reveal the leasee’s
responsibility for compensating the owner for the
car’s depreciation. The payment calculation must
disclose the following figures and explain how they
were determined: gross capitalized cost, capitalized
cost reduction, adjusted capitalized cost.
AUTOMOBILES—LEASING A CAR
60 GALE ENCYCLOPEDIA OF EVERYDAY LAW
In addition, dealers need to explain the rules gov-
erning termination and the formula used in calculat-
ing the penalties. Leasees need to be warned that
early termination may result in a PENALTY of several
thousand dollars, the earlier the termination, the
larger the penalty. Excessive wear and tear needs to
be defined, along with all other possible additional
fees. Liability, the right of the leasee to get an inde-
pendent APPRAISAL of damage and the vehicle’s end
value need to be explained. Responsibility for insur-
ing the vehicle and for maintaining it need to be ex-
plained. Purchase options need to be spelled out as
well.
Consumers need to know Regulation M does not
cover all elements involved in the lease design. For
example, it does not make clear that the leasee has
the right to a written explanation of termination fees.
Nor does Regulation M govern the fact that TAXATION
can change over time. Tax rates may change and thus
affect the costs leasees incur.
Additional Disclosures Required under
Certain State Laws
At least 20 states have chosen to adopt their own
disclosure laws on car leases in order to provide
more protection to consumers. These states are: Ar-
kansas, California, Colorado, Florida, Illinois, Hawaii,
Indiana, Iowa, Kansas, Louisiana, Maine, Maryland,
Michigan, New Hampshire, New Jersey, New York,
Oklahoma, Washington, West Virginia, and Wiscon-
sin. Some laws are inconsistent with the CLA or Reg-
ulation M. Where these inconsistencies exist, state
law is superseded by federal law. Moreover, some
state laws give greater protection to the consumer.
These laws require additional notices, warnings, dis-
closures regarding gap insurance and manufacturer
warranties. Also, some newly enacted state laws have
caused consumers confusion which is contrary to the
intention of state reform.
California has enacted extensive reforms of leas-
ing law. For example, the $25,000 maximum limit
stipulated by the CLA and Regulation M does not
apply to cars leased in California. Second, leasees are
free to terminate at any time. Termination penalties
are calculated according to a specified formula that
sets a ceiling on the amount. Moreover, notice must
be given at least ten days in advance by mail that a
vehicle turned in by a leasee will be sold by the les-
sor. This disclosure allows those who terminated
early to obtain an independent appraisal of the vehi-
cle’s worth. If the appraisal gives a value higher re-
garding the residual value, the leasee will owe less in
termination fees.
Fraud and Overcharging
In the 1990s, numerous instances of FRAUD oc-
curred in car leasing transactions. ABC’s Prime Time
reported on an undercover investigation which puts
car dealers under surveillance with hidden cameras.
Half of the ten dealers surveyed attempted to cheat
the undercover investigators. These dealers used
various means, such as secretly raising the purchase
price or capitalized cost of the vehicle or by quoting
low-ball interest rates. In Florida, a probe by the state
attorney general uncovered illegal business practices
in 23.000 leases which overcharged leasees on an av-
erage of $1,450. The terms of the leasing contract are
complicated, and fast talking dealers can all too easily
mislead unsuspecting customers.
Common Leasing Scams
There are a number of ways dealers can illegally
increase the leasing fees they obtain for their vehi-
cles. For example, they can use an undisclosed acqui-
sition fee, concealed in the net capitalized cost of the
car. This fee typically averages $450. Consumers
should ask if the fee has been included in the cost
of the vehicle and if it can be waived. Another way
is for dealers to quote the money factor as an interest
rate. Customers can be easily confused because both
of these figures are quoted in decimal form. For ex-
ample, a dealer may tell the customer that the inter-
est rate is 2.6 percent. The use of a money factor
of.00260 will be mistaken for the interest rate. When
this money factor is used, the actual interest rate is
6.24 percent. If the customer is able to distinguish
between these two figures and voices an objection,
the dealer may say he said 6.2 instead of 2.6 percent.
Dealers may also ‘‘forget’’ to enter the value of the
trade-in into the lease terms. Customers need to
carefully examine the figures of the lease to make
sure the value of their trade-in is listed. Then too
dealers can secretly increase the cost of the vehicle.
Customers need to insist the residual, money factor,
applicable fees, taxes, and dealer incentives are fully
disclosed. Then the customers can calculate the
lease payment themselves. Moreover, termination
penalty wording may be vague enough to allow some
dealers to charge more than the leasee was expect-
ing to pay. Finally, many customers may not know
that so-called LEMON LAWS pertain to leased vehicles
as well, and dealers may not offer that information.
AUTOMOBILES—LEASING A CAR
GALE ENCYCLOPEDIA OF EVERYDAY LAW 61
Should People Lease or Purchase?
Leasing may be a good choice under certain cir-
cumstances. For example, if consumers use a vehicle
in easy-wear situations only and for only the distance
specified in the lease mileage terms. Also, it may pay
to lease a car if the monthly payments for the lease
are lower than those for a car loan to purchase that
car. To calculate how to compare car loan payments
with lease payments, follow these steps:
• Determine through negotiation the lowest
possible price so that it is no more than $200
over the dealer invoice
• Add SALES TAX and other up front costs appli-
cable to purchasing and to leasing
• Add the relevant figures in each case to ar-
rive at the gross purchase price and the capi-
talized cost for the lease
• Subtract from each of these figures the
trade-in value if applicable
• Subtract from each of these figures the
amount of the down payment. Ideally, 20
percent of the figure calculated in the imme-
diately preceding step should be put down
for a purchase and nothing should be put
down for a lease. This calculation gives the
customer the net purchase price for buying
and leasing
• Next add the respective FINANCE CHARGE for
leasing and purchasing. For a lease this
amount will be listed as a rent charge. This
will give the total cost in purchasing and
leasing
• Finally, divide each figure by the number of
payments required
After the comparative costs have been deter-
mined, customers need to remember that if they buy
their cars, they will have a vehicle to sell the next
time they enter the car market as consumers.
Additional Resources
Buying and Leasing Cars on the Internet. Raisglid, Ron et.
al. St. Martin’s Press, 1998.
Car Buyers’ and Car Leasers’ Negotiating. Bible Bragg, W.
James, Random House, 1999.
Car Shopping Made Easy: Buying or Leasing, New or
Used: How to Get the Car You Most Want at the Price
You Want to Pay. Edgerton, Jerry, Warner Books, 2001.
Complete Idiot’s Guide to Buying or Leasing a Car. Nerad,
Jack, Macmillan Spectra, 1996.
Don’t Get Taken Away Every Time: The Insider’s Guide to
Buying or Leasing Your New Car or Truck. Sutton,
Remar, Penguin Books, 1997.
How to Buy or Lease a Car Without Getting Ripped Off.
Lyle, Pique, Adams Media Corp., 1999.
Insider’s Guide to Buying and Leasing. Wesley, John, Del-
mar-Thompson Learning, 2002.
Keys to Leasing: A Consumer’s Guide to Vehicle Leasing.
Board of Governors Federal Reserve System, 1997.
Leasing Lessons for Smart Shoppers. Eskeldson, Mark,
Technews Pub., 1997.
Smart Wheels, Hot Deals: A Layperson’s Guide to Buying,
Leasing, and Insuring the Best Car for the Least Money.
Silver Lake Publishing, 2001.
The Unofficial Guide to Buying or Leasing a Car. Howell,
Donna, Macmillan 1998.
Organizations
American Council on Consumer Interests
240 Stanley Hall
Columbia, MO 65211 USA
Phone: (573) 882-3817
Phone: (573) 884-6571
URL: http://www.consumerinterests.org
Primary Contact: Carrie Paden
Association of Consumer Vehicle Lessors
URL: http://www.acvl.com
Auto Leasing Hot Line Service
Phone: (800) 418-8450
Automotive Consumer Action Program
8400 Westpack Dr.
McLean, VA 22102 USA
Phone: (703) 821-7144
Consumer Action
717 Market St.
San Francisco, CA 94103 USA
Phone: (415) 777-9635
Phone: (415) 777-5267
URL: ttp://www.consumeraction.org
Primary Contact: Ken McEldowney, Director
Consumer Bankers Association
1000 Wilson Blvd.
Washington, DC 22209-3912 USA
Phone: (703) 276-1750
Phone: (703) 528-1290
URL: http://www.cbanet.org/
Primary Contact: Joe Belew, President
AUTOMOBILES—LEASING A CAR
62 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Federal Trade Commission
6th and Pennsylvania Ave.
Washington, DC 20580 USA
Phone: (877) 382-4357
Phone: (202) 326-3676
URL: http://www.ftc.gov
Primary Contact: Robert Pitofsky, Chair
National Vehicle Leasing Association
PO Box 281230
San Francisco, CA 94128 USA
Phone: (650) 548-9135
Phone: 650 548-9155
URL: http://www.nvla.org
Primary Contact: Rodney J. Couts, Executive
Director
AUTOMOBILES—LEASING A CAR
GALE ENCYCLOPEDIA OF EVERYDAY LAW 63
This Page Intentionally Left Blank
AUTOMOBILES
SAFETY
Sections within this essay:
• Background
• Child Passenger Safety
- Proper Child Safety Seat Use
- Booster Seat Safety
- Child Safety Law Exemptions
• Safety Belt Laws
- Standard Enforcement Information
- Highway Safety Grant Programs for
Occupant Protection Activities
• Motorcycle Helmets
• Speeding
• Blood Alcohol Content
- The Repeat Intoxicated Driver
- Intoxicated Drivers Repeat Offender
Laws
- Section 164 of 23 U.S.C.
• Additional Resources
Background
Those who drive cars may not realize the amount
of thought that goes into safety, both in terms of
safety equipment in the vehicle and the require-
ments of safe driving. Safety is incorporated into the
U.S. driving culture in many ways. From safety belts
and air bags, to motorcycle helmet laws and driving
while impaired laws, there is a delicate balance be-
tween the government’s role of protecting the driv-
ing and pedestrian population through safety laws
and regulations and the public’s and the automobile
industry’s privacy interests.
For the most part, market forces determined how
manufacturers addressed safety issues in their vehi-
cles. There was a good deal of tension between obvi-
ous safety hazards and the public’s unwillingness to
pay for vehicle modifications or features that ap-
peared to be ‘‘optional.’’ But in the 1960s, a grass-
roots level movement, led by Ralph Nader and oth-
ers, sought to inform the public, auto manufacturers,
and the government about the serious safety risks in
vehicles.
The late 1960s saw the first regulatory measures
to make cars safer. For example, the threat of a feder-
al mandate for auto manufacturers to install anchors
for front safety belts prompted the industry to install
them ‘‘voluntarily’’ as standard equipment. In hear-
ings in 1965, TESTIMONY from many physicians result-
ed in a recommendation that all cars sold in the state
of New York would have by 1968 the seventeen safe-
ty features already required in federally owned vehi-
cles. Around that time Michigan, Iowa, Illinois, and
Washington also conducted hearings on automobile
safety.
As of 2002, there are large federal agencies that
oversee an enormous array of federal laws and regu-
lations that are intended to safeguard American driv-
ers, passengers, and pedestrians. These are supple-
mented by many additional laws and regulations in
all fifty states, the District of Columbia, and U.S. terri-
tories and possessions.
Child Passenger Safety
Traffic crashes are one of the leading causes of
death in the United States. All 50 states, the District
of Columbia, Puerto Rico, and the U.S. territories
GALE ENCYCLOPEDIA OF EVERYDAY LAW 65
have child passenger safety laws on the books. These
do much to reduce the number of deaths and seri-
ous injuries from vehicle crashes. But the biggest
problem with these laws remains the significant gaps
and exemptions in coverage that diminish the pro-
tection that all children need in motor vehicles.
According to the September 1998 issue of the
Journal of Pediatrics, the best predictor of child oc-
cupant restraint use is adult safety belt use. In other
words, an adult driver who is buckled up is far more
likely to restrain a child passenger than one who is
not buckled.
Proper Child Safety Seat Use
Perhaps the single most important rule about chil-
dren in vehicles is that children should be seated in
the back seat at all times.
The proper seating information for infants, birth
to one year or up to twenty-two pounds is:
• If the car seat also converts to a carrier, the
infant should face the rear
• Harness straps should be at or below the
shoulders
• Infants should never be in the front seat, es-
pecially if the vehicle is equipped with pas-
senger-side air bags
The proper seating information for toddlers,
twenty-two to forty pounds is:
• If the car seat also converts to a carrier, the
child should face forward
• Harness straps should be above shoulder
level
• Toddlers should never be in the front seat,
especially if the vehicle is equipped with pas-
senger-side air bags
The proper seating information for preschool
children, forty to eighty pounds is:
• They need a belt positioning booster seat
• They should face forward
• Their booster seat must be used with both
lap and shoulder belts
• The lap belt should fit low and tight
There are child safety seat laws in every state plus
the District of Columbia. Police and other law en-
forcement officers are allowed to issue a CITATION
when they see a violation of these laws. There are
some 18 states that have gaps in their child passen-
ger restraint laws; in these states, some children are
not covered by either a child safety seat law or a safe-
ty belt law. Additionally, in states where children are
protected under the safety belt law as opposed to
specific child safety seat laws, police may enforce the
law only if a driver violates an additional law.
Safety belt laws do protect children. For example,
the NHTSA found that when Louisiana upgraded its
safety belt law from secondary to standard enforce-
ment, compliance with child restraint rules rose from
45 percent to 82 percent without any other change
in the state’s child passenger safety law.
Booster Seat Safety
Automobile accidents are a leading cause of death
and injury for American children. Approximately 500
of the nearly 19.5 million children in the five to nine
year-old age group die in automobile accidents.
About 100,000 more are injured in automobile crash-
es each year. Although the fatality rate has decreased
for other age groups in the same time period, the fa-
tality rate in automobile crashes for this age group
has remained constant over the past twenty years.
That is why this particular age group is sometimes
known as ‘‘the forgotten child;’’ they have outgrown
toddler-sized child safety seats but do not yet fit into
adult safety belts properly. Despite this problem, nei-
ther government nor industry has made concerted
efforts to address the safety needs of children ages
five to nine.
Booster seats are one answer to this problem;
they provide a proper safety belt fit. Booster seats lift
children up off vehicle seats. This improves the fit of
the adult safety belt on children. If used properly,
boosters should also position the lap belt portion of
the adult safety belt across the child’s legs or pelvic
area. An improper fit of an adult safety belt can ex-
pose a child to abdominal or neck injury because the
lap belt rides up over the stomach and the shoulder
belt cuts across the neck. When a child is restrained
in an age-appropriate child safety seat, booster seat,
or safety belt, his or her chance of being killed or se-
riously injured in a car crash is greatly reduced.
The facts about booster seat laws are sobering.
For example, only seven states have booster seat
laws: Arkansas, California, New Jersey, Oregon,
Rhode Island, South Carolina, and Washington. Thir-
ty-three states and the District of Columbia require
all children up to age 16 to be restrained in every
seating position. The other states require child re-
AUTOMOBILES—SAFETY
66 GALE ENCYCLOPEDIA OF EVERYDAY LAW
straint systems for children up to ages two, three, or
four, with a few more requiring the use of safety belts
after the age of four. According to some estimates,
as many as 630 additional children’s lives would be
saved and 182,000 serious injuries prevented every
year if the states closed all the gaps in their child oc-
cupant protection laws and all children—ages birth
to fifteen years old—were properly restrained.
Child Safety Law Exemptions
Several states have enacted laws which exempt
children from passenger restraint laws in certain cir-
cumstances or under unique circumstances. These
vary widely from state to state. The following is a list
of some of the most common exemptions:
• Overcrowded vehicles. In nearly half of the
states, children can ride unsecured if all safe-
ty belts are otherwise in use.
• ‘‘Attending to the personal needs of the
child.’’ This vague exemption may cover
many activities.
• Medical waivers for children with special
medical needs. These exemptions may dis-
appear as advances in child restraint systems
make it possible to accommodate children
with most types of physical disabilities.
• Out-of-state vehicles, drivers, and children.
Children in many states are frequently ex-
empted if the vehicle or driver is from anoth-
er state.
• Drivers who are not the vehicle owner or
who are not related to the children being
carried. Some states have laws that do not
hold the driver responsible for unrestrained
children.
Safety Belt Laws
It is clear from the statistics that lives are saved
when drivers and passengers in vehicles use safety
belts. This is especially true when safety belt use is
reinforced by meaningful safety belt laws. According
to NHTSA, as of 2002, approximately 61 percent of
passenger vehicle occupants killed in traffic crashes
were not wearing safety belts. This figure is down
from 65 percent in 1998.
Standard Enforcement Information
Every state except New Hampshire has safety belt
laws, but only 17 states and the District of Columbia
have standard enforcement of their belt laws. Stan-
dard enforcement laws allow police officers to stop
vehicles if the driver or front seat passenger is ob-
served not wearing a safety belt; the law also applies
to drivers who have not properly restrained a child.
Secondary enforcement laws allow officers to issue
a citation for failing to wear a safety belt only after
stopping the vehicle for another traffic INFRACTION.
Some have raised concerns that standard enforce-
ment laws could lead to police harassment of minori-
ties. However, according to a 1999 NHTSA report,
surveys in California and Louisiana conducted short-
ly after these states upgraded to standard enforce-
ment found that neither Hispanics (California) nor
African Americans (Louisiana) reported receiving a
greater number of safety belt citations than the pub-
lic as a whole.
Currently, seventeen states, the District of Colum-
bia and Puerto Rico have primary laws in effect. An-
other thirty-two states have secondary enforcement
laws, and New Hampshire has no seat belt use law
at all. Fines for not wearing a safety belt in the United
States currently range from a low of $5 in Idaho to
a high of $75 in Oregon. In twenty-seven states, the
fine is just $20-25.
Highway Safety Grant Programs for
Occupant Protection Activities
Congress passed the Transportation Equity Act for
the 21st Century (TEA-21) in May of 1998. There are
several programs in TEA-21 that make a direct impact
on seat belt use and occupant protection. The three
most important programs funded by the Act are:
1. Section 157 Seat Belt Incentive Grant pro-
gram. This program authorized half a bil-
lion dollars over five years to encourage
states to increase seat belt use rates. States
apply for grant money under this program
and may use grant funds for any eligible
Title 23 project (including approved con-
struction projects). The TEA-21 Act also
encourages innovative state-level projects
that promote increased seat belt use rates
and child passenger safety activities.
2. Section 405 (a) Occupant Protection In-
centive Grant program. This program de-
ploys $83 million over five years to target
specific occupant protection laws and pro-
grams. States can receive grants under this
program if they demonstrate that they
have enacted certain occupant protection
laws and programs, such as primary safety
AUTOMOBILES—SAFETY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 67
belt use laws and special traffic enforce-
ment programs.
3. Section 2003 (b) program. This portion of
the TEA-21 established a two-year program
for year 2000 and 2001. In the program,
states received grants if they implemented
child passenger protection education and
training activities.
Motorcycle Helmets
Motorcycle helmets are proven to save the lives of
motorcyclists, and they help prevent serious brain in-
juries. Twenty states and the District of Columbia re-
quire motorcycle drivers and their passengers to use
helmets. Twenty-seven other states have laws that
apply to some riders only, particularly those younger
than 18. Colorado, Illinois, and Iowa have no motor-
cycle helmet requirements at all.
Helmet laws increase motorcycle helmet use, thus
saving lives and reducing serious injuries. The
NHTSA reports that in 2000 there were 2,862 motor-
cycle riders killed on U.S. roads and highways. This
number represents a 15 percent increase from 1999.
There were 58,000 motorcycle-related injuries in
2000, a 16 percent increase from 1999.
Speeding
Speeding is a factor in nearly one-third of all FATAL
crashes. Speeding entails exceeding the posted
speed limit; it also means driving too fast for condi-
tions (such as in fog, rain, or icy road conditions), re-
gardless of the posted speed limit. Some 6.3 million
vehicular crashes were reported in 2000.
When drivers speed, they cause the following:
• Reduction in the amount of available time
needed to avoid a crash
• Increase the likelihood of a crash
• Increase the severity of a crash once it oc-
curs
According to a report issued by the NHTSA in 2000,
speed was a factor in 30 percent (12,628) of all traffic
fatalities in 1999. It was second only to alcohol (39
percent) as a cause of fatal crashes.
Congress repealed the National Maximum Speed
Limit in 1995. Accordingly, speeds increased on In-
terstate highways in the states that raised their speed
limits. Twenty-four states raised their speed limits in
late 1995 and in 1996. Twenty-nine states have cur-
rently raised speed limits to 70 MPH or higher on
portions of their roads and highways.
Blood Alcohol Content
Motor vehicle crashes are the number one cause
of death for Americans ages six through thirty-three.
Alcohol-related crashes are a big part of this prob-
lem. But alcohol-related accidents account for an in-
ordinately large percentage of all deaths in automo-
bile crashes. In fact, every 33 minutes someone is
killed in an alcohol-related crash.
Individuals absorb alcohol at different rates. The
main reason is body weight, but a number of other
factors affect blood alcohol content (BAC):
• Body type
• Rate of metabolism, medications taken
• The strength of the drinks
• Whether drinkers have eaten recently
Despite these factors, though, just one drink will de-
grade the physical and mental acuity of practically ev-
eryone. A person with a BAC in the range of.08 to.10
is considered legally intoxicated in every state. It
takes just a few drinks to get there, even if drinkers
do not ‘‘feel’’ the effects of the alcohol.
Intoxicated Drivers Repeat Offender Laws
State law uses four general methods to deal with
the problem of repeated offenses by intoxicated driv-
ers. These are:
1. Addressing Alcohol Abuse: Some states re-
quire drivers with repeat violations to be
assessed for their degrees of alcohol
abuse; some also mandate appropriate
treatment.
2. Licensing Sanctions: Suspending or revok-
ing licenses of repeat intoxicated drivers
for a greater period of time than they for
first offenders is the law in most states.
3. Mandatory Sentencing: Some states have
mandatory minimum sentences for repeat
intoxicated drivers.
4. Vehicle Sanctions: Some states impound
or immobilize the vehicles of repeat intoxi-
cated drivers. This can involve installing an
ignition interlock system, or other device
AUTOMOBILES—SAFETY
68 GALE ENCYCLOPEDIA OF EVERYDAY LAW
on their vehicles that prevents a vehicle
from starting if the driver’s blood alcohol
concentration is above a certain amount.
Programs that concentrate on an individual’s alco-
hol-related behavior have also experienced success.
For example, Milwaukee’s Intensive Supervision
PROBATION (MISP) program reduced recidivism by
more than 50 percent. The MISP program includes
a component of behavior monitoring. It seems that
a variety of measures are needed to address this issue
and that states are providing an array of sanctions to
the problem of repeat offenders of impaired driving
laws.
Revoking or suspending a driver’s license is now
a common PENALTY for violations related to impaired
driving. Despite these penalties, many offenders con-
tinue to drive. Too many drivers with a suspended
license receive additional traffic citations or become
involved in crashes during the periods when their li-
censes are suspended. As a way to ameliorate this
problem, many states have enacted legislation that
directly affects the offender’s vehicle or license
plates as a penalty for the impaired driving offense
and/or for driving with a suspended license.
Driver licensing sanctions have proven to help re-
duce the problem of impaired driving. Non-criminal
licensing sanctions have resulted in reductions in al-
cohol-related fatalities of between 6 and 9 percent.
According to a NHTSA study, the following states
have seen significant reductions in alcohol-related
fatal crashes following their implementation of ad-
ministrative license revocation procedures: Colora-
do, Illinois, Maine, New Mexico, North Carolina, and
Utah.
According to the NHTSA, these kinds of sanctions
actually do prevent many repeat DWI offenders from
driving. Those repeat offenders who continue to
drive without a license tend to drive more infre-
quently or at least more carefully.
The NHTSA State Legislative Fact Sheet-Vehicle
and License Plate Sanctions states that a variety of ve-
hicle sanctions programs have been used successful-
ly. For example, California’s vehicle impoundment
program substantially reduced subsequent offenses,
convictions, and crashes for repeat offenders in the
program. These penalties work by either separating
repeat DUI/DWI offenders from their vehicles or by
requiring them to be sober when they drive.
Section 164 of 23 U.S.C.
Section 164 of 23 U.S.C. required states to enact
certain laws regarding repeat intoxicated drivers.
These were to be in place by October 1, 2000. States
without these laws forfeited part of their Federal
highway construction funds. These monies were re-
directed to the state’s highway safety program to be
used for alcohol-impaired driving countermeasures,
or for enforcement of anti-drunk driving laws. Alter-
natively, states could also elect to use the funds for
its hazard elimination program.
To be in compliance with Section 164, a state’s
laws related to subsequent convictions for driving
while intoxicated or driving under the influence of al-
cohol must require the following:
• Behavior ASSESSMENT: States must mandate
assessment of repeat intoxicated drivers’ de-
gree of alcohol abuse and refer them to
treatment when appropriate
• Driver’s License Suspension: suspension
must be for a minimum of one year
• Mandatory Minimum Sentence: These
should be not less than five days of
IMPRISONMENT or 30 days of community ser-
vice for the second offense. For the third or
subsequent offense, the sentence should
not be less than 10 days of imprisonment or
60 days of community service.
• Vehicle Seizure: all vehicles of repeat intoxi-
cated drivers must be impounded or immo-
bilized for some period of time during the li-
cense suspension period
The STATUTE defines a repeat intoxicated driver as
a driver convicted of driving while intoxicated or
driving under the influence of alcohol more than
once in any five-year period. This means that states
need to maintain records on driving convictions for
DWI/DUI for a minimum of five years. Additionally,
states must certify that they are in compliance with
all the provisions of the statute. The following states
and the District of Columbia met the requirements
of Section 164 by the end of 2000: Alabama, Arizona,
Arkansas, Colorado, Florida, Hawaii, Indiana, Idaho,
Iowa, Kentucky, Maine, Michigan, Mississippi, Ne-
braska, Nevada, New Hampshire, New Jersey, North
Carolina, Oklahoma, Pennsylvania, Utah, Virginia,
and Washington.
AUTOMOBILES—SAFETY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 69
Additional Resources
‘‘Advocates for Auto and Highway Safety.’’ Available at
http://www.saferoads.org/. Advocates for Highway &
Auto Safety, 2002.
‘‘Buckle Up America.’’ National Highway Traffic Safety Ad-
ministration, 2002. Available at http://
www.nhtsa.dot.gov/people/injury/airbags/buckleplan/.
2001 Car and Vehicle Safety Data: National Highway
Traffic Safety Administration (NHTSA) Documents
and Reports U.S. Government, Progressive Manage-
ment, 2001.
The Car Book: The Definitive Buyer’s Guide to Car Safety,
Fuel Economy, Maintenance, and Much More. Gillis,
Jack, Clarence M. Ditlow, Amy B. Curran, HarperPeren-
nial, 1998.
Drive to Survive! Rich, Curt, Motorbooks International,
1999.
Human Factors in Traffic Safety. Olson, Paul L. and Rob-
ert E. Dewar, eds. Lawyers & Judges Publishing Compa-
ny, 2001.
‘‘NHTSA State Legislative Fact Sheet-Administrative Li-
cense Revocation.’’ http://www.nhtsa.dot.gov/people/
outreach/stateleg/adminlicense.htm. National Highway
Traffic Safety Administration, 2001.
‘‘NHTSA State Legislative Fact Sheet-Vehicle and License
Plate Sanctions.’’ http://www.nhtsa.dot.gov/people/
outreach/stateleg/veh_lic_sanctions.htm. National
Highway Traffic Safety Administration, 2001.
‘‘Transportation and Vehicle Safety.’’ Safetyforum.com,
2002. Available at http://www.safetyforum.com/
transportation/.
Organizations
AAA Foundation for Traffic Safety
1440 New York Ave., NW, Suite 201
Washington, DC 20005 USA
Phone: (202) 638-5944
Fax: (202) 638-5943
URL: http://www.aaafoundation.org/home/
index.cfm
Center for Auto Safety (CAS)
1825 Connecticut Ave., NW, Suite 330
Washington, DC 20009-5708 USA
Phone: (202) 328-7700
URL: http://www.autosafety.org/
Kids ‘N Cars
918 Glenn Avenue
Washington, MO 63090 USA
Fax: (636) 390-9412
E-Mail: Struttmann@kidsncars.org
URL: http://www.kidsncars.org/
Mothers Against Drunk Driving (MADD)
P.O. Box 541688
Dallas, TX 75354-1688 USA
Phone: (800) 438-6233
URL: http://www.madd.org/home/
National Highway Traffic Safety
Administration (NHTSA)
400 7th St., SW
Washington, DC 20590 USA
Phone: (202) 366-0699
Fax: (202) 366-7882
E-Mail: webmaster@nhtsa.dot.gov
URL: http://www.nhtsa.dot.gov/
Safetyforum.com
P.O. Box 470
Arlington, VA 22210-0470 USA
Phone: (703) 469-3700
Fax: (703) 469-3701
E-Mail: mail@safetyforum.com
URL: http://safetyforum.com
AUTOMOBILES—SAFETY
70 GALE ENCYCLOPEDIA OF EVERYDAY LAW
AUTOMOBILES
SEAT BELT USAGE
Sections within this essay:
• Background
• Types of Seat Belts
• Legislation
- Federal
- State
- Primary versus Secondary Laws
• Why People Ignore Seat Belts
• Seat Belts on School Buses
• Keeping Safe
• Additional Resources
Background
More than 90 percent of Americans age 16 and
above drive a motor vehicle; of those, nearly 80 per-
cent claim to wear their seat belts at all times while
driving. These figures come from the National High-
way Traffic Safety Administration (NHTSA), which
also estimates that seat belts saved more than
135,000 lives between 1975 and 2001. While many
people wear their seat belts because they recognize
the safety factor, others wear them because failure to
do so can result in a fine. Regardless of the reason
one wears a seat belt, the fact is that since the 1950s
they have been proven to save lives.
However, many people refuse to wear seat belts.
They say that the belts are too uncomfortable, or
they say they are only driving a short distance. They
may also say that they simply forget. With the grow-
ing prevalence of state ‘‘primary laws,’’ in which po-
lice officers are allowed to stop cars at random to
perform seat-belt checks, people are clearly more
careful when they know they may be facing a fine.
The first seat belts were not installed in cars by
auto manufacturers. Early automobiles did not go
particularly fast, and there were relatively few cars on
the road. As the number of motor vehicles increased,
so did the amount of danger. In the 1930s, a number
of physicians, seeing the results of traffic accidents,
lobbied car makers to create some sort of restraining
device to keep people from being thrown from a car
in an accident. Several doctors actually designed
their own lap belts and installed them in their autos.
It was not until the 1950s that seat belts began to
appear with some regularity. In 1954 the Sports Car
Club of America began to require drivers to wear lap
belts as they raced. Soon afterward such groups as
the National Safety Council (NSC), American College
of Surgeons, and International Association of Chiefs
of Police issued their own recommendations for the
manufacture and installation of seat belts. The Swed-
ish auto manufacturer Volvo began marketing lap
belt in 1956; that same year both Ford and Chrysler
decided to offer lap belts as well. Seat belts were not
required by law, though, in the United States until
1968.
Types of Seat Belts
The simple belt that was pulled across the lap
(and that only came on the front seats) has long
since been retired. That belt was known as two-point
because of its simple A-to-B design. Today’s seat
belts are three-point; one strap goes across the lap
GALE ENCYCLOPEDIA OF EVERYDAY LAW 71
while another goes over the shoulder and diagonally
across the chest. In some automobiles, the two
straps are connected and the occupant crosses it
over the chest and the lap in one motion. In other
cars, the occupant connects the lap belt while the
shoulder belt slides into place automatically once the
door is closed. A prototype for a four-point is being
developed; it works more like a harness than a typi-
cal seat belt would.
Seat belts are made of lightweight but durable fab-
ric that is designed to withstand impacts and hold
the wearer in place. Of the roughly 40,000 automo-
bile deaths that occur each year, safety experts say
nearly half could have been prevented if a seat belt
was being worn. In many cases, the person is killed
as a result of being thrown from the vehicle upon
crashing. In addition to being durable, seat belts are
also designed to be much more comfortable than
they were in the past. Most seat belts today employ
a mechanism that allows the wearer to move fairly
comfortably while driving; if the car comes to a sud-
den stop the belt locks and holds the wearer firmly
in place.
Legislation
Federal
There is no federal seat belt law; such laws are left
to the individual states. The U. S. Department of
Transportation, through NHTSA, offers grant pro-
grams to states; in 2002, 48 states, the District of Co-
lumbia, and Puerto Rico shared a $44.4 million grant
(Maine and Wyoming declined to take any grant
money). Safety and public awareness campaigns are
also conducted by NHTSA. Probably the best known
is the series of print and broadcast advertisements
that feature Vince and Larry, the crash test dummies.
In 1998, Congress passed the Transportation Eq-
uity Act for the 21st Century (TEA-21), which in-
cludes grant money for states to initiate new seat belt
laws, traffic enforcement programs, and child pas-
senger protection and training activities.
State
Every state except New Hampshire has a seat belt
requirement for adults. All 50 states and the District
of Columbia have seat belt laws that cover children.
These laws require children under a certain age (usu-
ally 3 or 4) to be placed in a child restraint (a baby
seat, a booster seat, etc.); buckling these children up
with adult belts is not permitted by law.
New York is one of the most active proponents of
seat belt regulation. It was the first state to try to pass
seat belt legislation when in 1959 it tried to mandate
seat belts in all new cars sold in the state. In 1985,
New York made seat belt use mandatory for back
seat passengers aged 10 or older; in 1987 it became
the first state to require seat belts on large school
buses.
Primary versus Secondary Laws
Primary seat belt laws are one of the most effective
enforcement tools available. A primary law allows po-
lice to stop an automobile and ticket the driver for
not wearing a seat belt. Seventeen states and the Dis-
trict of Columbia have primary laws.
Secondary laws allow the police to ticket a driver
who is not wearing a seat belt, but the police must
have already stopped the driver for some other rea-
son. A person who is speeding or who goes through
a red light or whose tail light is out can be stopped
and ticketed; a person who is obeying all the laws but
is not wearing a seat belt will not be pulled over in
a state with no primary law.
Proponents of primary legislation point out the
safety factor. More people will wear seat belts if they
know they run the risk of being pulled over and tick-
eted. If the driver of a car is wearing a seat belt,
chances are his or her passengers are too. Moreover,
according to information from the National Safety
Council (NSC), adults who buckle up are more likely
to make sure their children are properly buckled up.
In fact, according to NSC, overall seat belt usage can
be as much as 15 percent higher in states with prima-
ry laws.
Why People Ignore Seat Belts
Of the people who use seat belts, most say their
reason for wearing them was to avoid injury. A study
conducted in 1998 for NHTSA called the Motor Vehi-
cle Occupant Safety Survey (MVOSS) revealed that
97 percent of frequent seat belt users and 77 percent
of occasional users wear their seat belts as a safety
measure. Other reasons cited included wanting to
set a good example, being with other people who are
wearing seat belts, and force of habit. More than 80
percent of the respondents admitted they use them
because doing so is required by law.
Regarding people who do not wear seat belts,
some wear seat belts occasionally and others admit
never wear seat belts. According to the MVOSS study,
AUTOMOBILES—SEAT BELT USAGE
72 GALE ENCYCLOPEDIA OF EVERYDAY LAW
the primary reason occasional seat belt users fail to
buckle up is that they are only driving short distances
(56 percent). More than half said that they simply for-
get on occasion. For those who never wear a seat
belt, the most commonly cited reason (65 percent)
is that seat belts are uncomfortable. Other reasons
people gave for not wearing their seat belts include
the following:
• Being in a hurry and not having time to
buckle up
• Light traffic on the roads when respondent
drives
• Not wanting to get clothing wrinkled
• Resentment at being told what to do
• Knowing someone who died in a crash while
wearing a seat belt
• Resentment at government interference in
personal behavior
• Never having gotten used to seat belts
• The belief that with air bags, seat belts are re-
dundant
Safety experts point out that many of these rea-
sons are based on faulty logic. For example, light traf-
fic may have nothing to do with having to make a
sudden stop. Air bags, while a valuable safety precau-
tion, are limited in how much they can do. Some
overweight people claim that they cannot wear seat
belts because the seat belts do not fit them. Some,
but not all, auto manufacturers offer seat belt extend-
ers to deal with this problem; others offer custom-
ized longer seat belts. The fact remains, however,
that there are people who simply will not wear seat
belts; they are more comfortable risking being ticket-
ed or potential injury or death.
Seat Belts on School Buses
Smaller school buses are treated like passenger
vehicles when it comes to seat belt requirements. Be-
cause of their small size they are more likely to eject
passengers; as a result, they are equipped with seat
belts as a matter of course. As for standard size
school buses, the effectiveness of seat belts has been
a source of debate for several years.
In 1992, five years after New York passed a law re-
quiring seat belts on school buses, New Jersey
passed a similar law. While New York’s law makes use
of the seat belts optional, New Jersey’s law requires
children to buckle up. In 1999, Florida, Louisiana,
and California also enacted laws for what they called
‘‘improved occupant restraint systems’’ on large
school buses, although they have not yet decided ex-
actly what type of restraint they wish to require on
their buses.
It may seem odd that in an atmosphere of in-
creased emphasis on safety there would be any ques-
tion about seat belts on large buses. Yet opponents,
citing data from NHTSA, have said that seat belts on
buses might do little to help children. Rather, they
believe, the improved interior design of school buses
(known as compartmentalization) is more effective.
Since the 1970s, school bus seats have been mandat-
ed by law to be well-padded on both sides, with high
backs and extra-sturdy anchoring, and no exposed
rivets. The design of the modern school bus has
been compared to that of an egg carton; the extra
padding around the seats helps protect the passen-
gers during sudden impacts and keeps them from
being ejected from their seats. Moreover, say oppo-
nents of school bus seat belts, in the event of an acci-
dent, it would be much harder for someone to get
children out of a bus if they are all wearing seat belts.
This issue will not be resolved easily. What both sides
can agree on, however, is that school buses are defi-
nitely safer today than they were in the early 1970s.
Keeping Safe
The bottom line for drivers and automobile pas-
sengers is that in almost all cases it is wiser to buckle
up. From a safety perspective, the EVIDENCE clearly
points to the value of seat belts in saving lives. From
a legal perspective, failure to wear a seat belt can
mean being ticketed. Just as there are people who
continue to smoke, no doubt there will be people
who continue to avoid wearing seat belts. By getting
into the habit of wearing them, say the safety experts,
travelers will become more comfortable with seat
belts, both as drivers and as passengers.
Additional Resources
Baby Seats, Safety Belts, and You. Breitenbach, Robert J.,
Janet B. Carnes, and Judy A. Hammond, U. S. Depart-
ment of Transportation, 1995.
SAE Vehicle Occupant Restraint Systems and Components
Standards Manual. Society of Automotive Engineers,
1995.
Standard Enforcement Saves Lives: The Case for Strong
Seat Belt Laws. NHTSA, National Safety Council, 1999.
AUTOMOBILES—SEAT BELT USAGE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 73
Organizations
Mothers Against Drunk Driving (MADD)
P. O. Box 541689
Dallas, TX 75354 USA
Phone: (800) 438-6233 (GET-MADD)
URL: http://www.madd.org
Primary Contact: Millie I. Webb, President
National Association of Governors’ Highway
Safety Representatives (NAGHSR)
750 First Street NE, Suite 720
Washington, DC 20002 USA
Phone: (202) 789-0942
URL: http://www.statehighwaysafety.org
Primary Contact: Marsha M. Lembke, Chair
National Safety Council
1121 Spring Lake Drive
Itasca, IL 60143 USA
Phone: (630) 285-1121
Fax: (630) 285-1315
URL: http://www.nsc.org
Primary Contact: Alan McMillan, President
National Transportation Safety Board
(NTSB)
490 L’Enfant Plaza SW
Washington, DC 20594 USA
Phone: (202) 314-6000
URL: http://www.ntsb.gov
Primary Contact: Marion C. Blakey, Chairman
Society of Automotive Engineers (SAE)
400 Commonwealth Drive
Warrendale, PA 15096 USA
Phone: (724) 776-5760
URL: http://www.sae.org
Primary Contact: S. M. Shahed, Ph.D., 2002
President
U. S. Department of Transportation,
National Highway Traffic Safety
Administration (NHTSA)
400 Seventh Street SW
Washington, DC 20590 USA
Phone: (888) 327-4236 (Auto Safety Hotline)
URL: http://www.nhtsa.dot.gov
Primary Contact: Jeffrey W. Runge, Administrator
AUTOMOBILES—SEAT BELT USAGE
74 GALE ENCYCLOPEDIA OF EVERYDAY LAW
AUTOMOBILES
TRAFFIC VIOLATIONS
Sections within this essay:
• Background
• Types of Traffic Violations
• Effect of Traffic Violations
- Fines
- Traffic School
- Suspension of License
- Insurance Premiums
• Drunk Driving
- Drunk Driving Laws and Penalties
• Additional Resources
Background
Traffic violations followed the invention of the au-
tomobile: the first traffic ticket in the United States
was allegedly given to a New York City cab driver on
May 20, 1899, for going at the breakneck speed of 12
miles per hour. Since that time, countless citations
have been issued for traffic violations across the
country, and states have reaped untold billions of
dollars of revenue from violators.
Traffic violations can be loosely defined as any acts
that violates a state or municipalities traffic laws.
Most laws are local, though the federal government
does regulate some traffic aspects, and it can deny
federal money in order to coerce states to pass par-
ticular traffic laws. Today, motorists can find them-
selves faced with dozens of traffic laws, depending
on where they are driving. These traffic laws vary by
state, city, highway, and region
Types of Traffic Violations
Traffic violations are generally divided into major
and minor types of violations. The most minor type
are parking violations, which are not counted against
a driving record, though a person can be arrested for
unpaid violations. Next are the minor driving viola-
tions, including speeding and other moving viola-
tions, which usually do not require a court appear-
ance. Then there are more serious moving violations,
such as reckless driving or leaving the scene of an ac-
cident. Finally there is drunk driving, also called Driv-
ing Under the Influence (DUI), which is a classifica-
tion onto itself.
All but the most serious traffic violations are gen-
erally prosecuted as MISDEMEANOR charges; however,
repeat offenses can be prosecuted at the level of felo-
nies. As misdemeanor charges, most traffic violations
require payment of a fine but no jail time. State laws
do not allow a judge to impose a jail sentence for
speeding or failure to stop at a signal. However,
more serious traffic violations, such as drunk or reck-
less driving, can result in jail time at the judge’s dis-
cretion.
The most common type of traffic violation is a
speed limit violation. Speed limits are defined by
state. In 1973, Congress implemented a 55-miles-per-
hour speed limit in order to save on energy costs, but
these were abolished in 1995. Since then, most states
have implemented 65-mph maximum speed limits.
There are two types of speed limits: fixed maximum,
which make it unlawful to exceed the speed limit
anywhere at any time, and prima facie, which allow
drivers to prove in certain cases that exceeding the
speed limit was not unsafe and, therefore, was lawful.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 75
Another common type of traffic violation is a seat
belt violation. Most states now require adults to wear
seatbelts when they drive or sit in the front seat, and
all states require children to be restrained using seat
belts. New York was the first state to make seat belts
mandatory, in 1984.
Effect of Traffic Violations
The effect of a traffic violation depends on the na-
ture of the offense and on the record of the person
receiving the traffic violation. Beyond the possibili-
ties of fines and/or jail, other consequences of traffic
violations can include traffic school, higher insurance
premiums, and the suspension of driving privileges.
Fines
Fines for traffic violations depend on the violation.
Typically, states will have standard fines for a specific
group of moving violations, with the fines increasing
with the seriousness of the violation. Some states will
also increase the fine if violators have other viola-
tions on their record. Courts will occasionally reduce
fines on violations while still recording the violation
as part of the violator’s record.
Traffic School
Virtually every state allows perpetrators of a traffic
violation to attend some sort of traffic school in re-
turn for the violation being wiped off their records.
Traffic school generally consists of a 6-8 hour class
that describes the dangers of committing traffic viola-
tions. Different states have different procedures re-
garding their traffic schools. Some allow traffic
schools in place of paying the fine; others require
payment of the fine in addition to the traffic school
cost of admission. Some allow traffic violators to go
to traffic school once a year, whereas others require
a longer waiting period between traffic school atten-
dances. Also, the type of violation may affect whether
the violator is allowed to go to traffic school: the
more serious the violation, the less likely the violator
will be allowed to go to traffic school to wipe it off
their record.
Procedures for signing up for traffic school also
differ from state to state: some states allow drivers
to sign up with the school directly, others have them
go through the clerk of court or judge in order to
sign-up. Most states require drivers to go to a specific
location for traffic school, although some, such as
California, now offer an Internet option that allows
a student to attend traffic school without leaving the
comfort of home
Suspension of Driving Privileges
A traffic violation not wiped out by traffic school
will count against the suspension of driving privi-
leges. In most states, suspension of driving privileges
is calculated using a point system: the more points
drivers have, the more likely it is their driving privi-
leges could be suspended. Some states calculate the
number of violations drivers have in a straightfor-
ward manner; if drivers reach the requisite number
of violations within a certain time frame, their privi-
leges are automatically suspended. Age can also be
a factor in determining when a driver’s license is sus-
pended. Minor drivers typically see their licenses sus-
pended with fewer violations than adults.
All states entitle persons facing suspended li-
censes to receive a HEARING, typically in front of a
hearing officer for that state’s Department of Motor
Vehicles. At that point, the person whose license is
to be suspended may offer an explanation for why
the violations in question occurred. The hearing offi-
cer usually has discretion in all but the most extreme
cases (i.e. drunk driving) to reduce, defer the sus-
pension, or cancel it entirely.
Insurance Premiums
Beyond the suspension of driving privileges, traf-
fic violators typically can face higher insurance. In-
surance companies will raise insurance rates for
HABITUAL violators of traffic law. In many cases insur-
ance rates will go up for as little as two violations
within a three-year period. Different insurance com-
panies follow different procedures. It is up to the dis-
cretion of the insurance company whether to raise
rates as a result of a traffic violation.
Drunk Driving
Among driving violations, drunk driving is usually
considered a special case. Called by various names,
including Driving Under the Influence (DUI), Driving
While Intoxicated (DWI) and Operating While Intox-
icated (OWI), drunk driving usually results in strong-
er fines and penalties than normal driving violations.
Drunk driving means that the persons driving
have consumed enough alcohol to impair their driv-
ing abilities. This is usually determined either by a
blood-alcohol test, some other sobriety test, or just
the observations of the officer. The test is subjective:
just because drivers do not feel drunk does not mean
they cannot be arrested for drunk driving.
A blood alcohol test measures the amount of alco-
hol in a person’s blood. This can be done directly,
AUTOMOBILES—TRAFFIC VIOLATIONS
76 GALE ENCYCLOPEDIA OF EVERYDAY LAW
through drawing blood from the person, or it can be
done with instruments measuring breath or urine.
Some states allow a choice as to which test to take,
others do not. If persons test above the level of
INTOXICATION for their state (.08 to.10 percent, de-
pending on the state), they are considered drunk
and a prima facie case of drunk driving has been
shown.
A blood alcohol test can be refused, but the conse-
quences can be severe. In most states, refusal to take
a blood alcohol test is prima facie EVIDENCE of drunk
driving. In some states refusal to take the test can re-
sult in the automatic revocation of a license for a
year.
Whether a driver is drunk can also be measured
using a sobriety test, such as requiring the driver to
walk a straight line, stand on one leg, or recite a
group of letters or numbers. A driver failing any of
these tests can usually be arrested for drunk driving,
though often the police officer requests a blood alco-
hol test as a follow up. The officer can also base the
arrest on simple observation of the driver’s behavior,
although a request for a blood alcohol test is a stan-
dard follow-up in these instances as well.
Currently 31 states require a level of.08 or above
in order for drivers to be considered intoxicated.
They are: Alabama, Alaska, Arizona, Arkansas, Califor-
nia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana,
Kansas, Kentucky, Louisiana, Maine, Maryland, Mas-
sachusetts, Missouri, Nebraska, New Hampshire,
New Mexico, North Carolina, Oklahoma, Oregon,
Rhode Island, Texas, Utah, Vermont, Virginia, Wash-
ington, and the District of Columbia. The other
states all require.10 or above in order for a driver to
be considered intoxicated. Currently all states have
zero tolerance laws that make it illegal for drivers
under the age of 21 to operate a motor vehicle with
a blood alcohol level of.02 or less.
Drunk Driving Laws and Penalties
Drunk driving has been considered a traffic viola-
tion since the turn of the century, but in recent years
the penalties for drunk driving in most states have
grown much harsher, as a result of the efforts of
groups such as Mothers Against Drunk Driving
(MADD), founded in 1980. In every state at a mini-
mum, convicted drunk drivers automatically lose
their licenses for a certain amount of time. Some
states require short jail terms for first time offenders,
and most states require drunk-driving offenders to
go through some sort of treatment program.
In addition to the general penalties for drunk driv-
ing, many states have specific laws dealing with as-
pects of drunk driving. The following are some of the
various state laws dealing with drunk driving, along
with a list of the states that have them:
• Anti-Plea Bargaining: A policy that prohibits
plea-bargaining or reducing an alcohol-
related offense to a non-alcohol related of-
fense. Arizona, Arkansas, California, Colora-
do, Florida, Kansas, Kentucky, Mississippi,
Nevada, New Mexico, New York, Oregon,
Pennsylvania, Wyoming
• Child Endangerment: Creates a separate of-
fense or enhances existing DUI/DWI penal-
ties for offenders who drive under the influ-
ence with a minor child in the vehicle.
Alabama, Arizona, California, Colorado, Del-
aware, Florida, Georgia, Hawaii, Idaho, Illi-
nois, Iowa, Kansas, Kentucky, Louisiana,
Maine, Maryland, Michigan, Minnesota, Ne-
vada, New Hampshire, New Jersey, North
Carolina, North Dakota, Ohio, Rhode Island,
South Carolina, Tennessee, Utah, Virginia
West Virginia, Wisconsin
• Dram Shop: A law that makes liable estab-
lishments who sell alcohol to obviously in-
toxicated persons or minors who subse-
quently cause death or injury to third parties
as a result of alcohol-related crashes. Ala-
bama, Alaska, Arizona, Arkansas, California,
Colorado, Connecticut, District of Columbia,
District of Columbia, Florida, Georgia, Ha-
waii, Idaho, Illinois, Indiana, Iowa, Kentucky,
Louisiana, Maine, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana,
New Hampshire, New Jersey, New Mexico,
New York, North Carolina, North Dakota,
Ohio, Oklahoma, Oregon, Pennsylvania,
Rhode Island, South Carolina, Tennessee,
Texas, Utah, Vermont, Washington, West
Virginia, Wisconsin, Wyoming
• FELONY DUI: Makes drunk driving a felony
offense based on the number of previous
convictions. Alabama, Alaska, Arizona, Ar-
kansas, California, Colorado, Connecticut,
Delaware, District of Columbia, Florida,
Georgia, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine,
Massachusetts, Michigan, Mississippi, Mis-
souri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New
AUTOMOBILES—TRAFFIC VIOLATIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 77
York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Rhode Island, South Da-
kota, South Carolina, Tennessee, Texas,
Utah, Vermont, Virginia, Washington, West
Virginia, Wisconsin, Wyoming
• High Blood Alcohol Content Laws: Result in
increased penalties for driving with blood al-
cohol concentration of.15 or higher at time
of arrest. Arizona, Arkansas, Colorado, Con-
necticut, Florida, Idaho, Illinois, Indiana,
Iowa, Kentucky, Maine, Minnesota, Nevada,
New Hampshire, New Mexico, Ohio, Okla-
homa, Tennessee, Virginia, Washington,
Wisconsin
• Hospital Blood Alcohol Content Reporting:
Authorizes hospital personnel to report
blood alcohol test results of drivers involved
in crashes to local law enforcement where
the results are available as a result of treat-
ment. Florida, Hawaii, Illinois, Indiana, Ore-
gon, Pennsylvania, Utah, Vermont
• Increased Penalties for Blood Alcohol Con-
tent Refusal: Provides for increased penalties
for refusing to take a blood alcohol content
test, higher than failing the test would bring.
Arkansas, Georgia, Kansas, Virginia, Wash-
ington.
• Mandatory Alcohol Assessment/Treatment:
Law that mandates that convicted drunk
driving offenders undergo an ASSESSMENT of
alcohol abuse problems and participate in
required treatment program. Alabama, Ari-
zona, Arkansas, Colorado, Connecticut, Del-
aware, Florida, Georgia, Illinois, Kansas,
Kentucky, Maine, Michigan, Mississippi, Mis-
souri, Montana, Nevada, New Hampshire,
New York, North Carolina, North Dakota,
Ohio, Oklahoma, Oregon, Pennsylvania,
Rhode Island, South Carolina, Tennessee,
West Virginia, Wisconsin
• Mandatory Jail, Second Offense: Makes a jail
term mandatory for a second drunk driving
offense. Alabama, Alaska, Arizona, Arkansas,
California, Colorado, Connecticut, Dela-
ware, Florida, Georgia, Hawaii, Idaho, Illi-
nois, Indiana, Iowa, Kansas, Kentucky, Loui-
siana, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hamp-
shire, New Jersey, New Mexico, North Caroli-
na, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Carolina,
Tennessee, Texas, Utah, Vermont, Virginia,
Washington, West Virginia, Wisconsin, Wyo-
ming
• Sobriety Checkpoints: Allows law enforce-
ment officials to establish checkpoints to
stop vehicles and examine their drivers for
intoxication. Alabama, Arizona, Arkansas,
California, Colorado, Connecticut, Dela-
ware, District of Columbia, Florida, Georgia,
Hawaii, Illinois, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts,
Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, New
Mexico, New York, North Carolina, North
Dakota, Ohio, Oklahoma, Pennsylvania,
South Carolina, South Dakota, Tennessee,
Utah, Vermont, Virginia, West Virginia, Wyo-
ming
• Social Host: Imposes potential liability on
social hosts as a result of their serving alco-
hol to obviously intoxicated persons or mi-
nors who subsequently are involved in
crashes causing death or injury to third-
parties. Alabama, Arizona, Colorado, Con-
necticut, Florida, Georgia, Idaho, Indiana,
Iowa, Louisiana, Maine, Massachusetts,
Michigan, Minnesota, Mississippi, Montana,
New Hampshire, New Jersey, New Mexico,
New York, North Carolina, North Dakota,
Ohio, Oregon, Pennsylvania, Texas, Utah,
Vermont, Wisconsin, Wyoming
Additional Resources
Digest of Motor Laws. Butler, Charles A. Editor and Kay
Hamada, eds.Editor, American Automobile Association,
Heathrow, FL, 1996.
http://www.madd.org/home/ ‘‘Stats and Resources,’’ Moth-
ers Against Drunk Driving, 2002
http://www.nolo.com‘‘Cars & Tickets,’’ Nolo Press, 2002
West’s Encyclopedia of American Law. West Publishing
Company, 1998.
Organizations
Mothers Against Drunk Driving (MADD)
P.O. Box 541688
Dallas, TX 75354-1688 USA
Phone: (1-800) 438-6233
URL: URL: http://www.madd.org
AUTOMOBILES—TRAFFIC VIOLATIONS
78 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Primary Contact: Millie Webb, President
National Highway Traffic Safety
Administration (NHTSA)
400 Seventh Street, SW
Washington, DC, DC 20590 USA
Phone: (202) 366-9550
URL: http://www.nhtsa.dot.gov/
Primary Contact: Jeffrey Runge, Administrator
U. S. Department of Transportation
400 Seventh Street, SW
Washington, DC, DC 20590 USA
Phone: (202) 366-4000
URL: http://www.dot.gov/
E-Mail: dot.comments@ost.dot.gov.
Primary Contact: Norman Mineta, Secretary of
Transportation
AUTOMOBILES—TRAFFIC VIOLATIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 79
This Page Intentionally Left Blank
BANKING
BANKING AND LENDING LAW
Sections within this essay:
• Background
• Bank Transactions
- Checks and Other Negotiable Instru-
ments
- Checking Accounts
- Funds Transfers
- Letters of Credit
- Secured Transactions
• Federal Reserve System
• Insurance of Deposits
• Interest Rates Charged by Banks
• Truth in Lending
• Usury Laws
• Crimes Related to Banks and Banking
• State Laws Governing Banks, Banking, and
Lending
• Additional Resources
Background
The law governing banks, bank accounts, and
lending in the United States is a hybrid of federal and
state STATUTORY law. Consumers and businesses may
establish bank accounts in banks and savings associa-
tions chartered under state or federal law. The law
under which a bank is chartered regulates that partic-
ular bank. A mix of state and federal law, however,
governs most operations and transactions by bank
customers.
Article 3 of the UNIFORM COMMERCIAL CODE, as
adopted by the various states, governs transactions
involving negotiable instruments, including checks.
Article 4 of the Uniform COMMERCIAL CODE governs
bank deposits and collections, including the rights
and responsibilities of DEPOSITORY banks, collecting
banks, and banks responsible for the payment of a
check. Other provisions of the Uniform Commercial
Code are also relevant to banking and lending law,
including Article 4A (related to funds transfers), Arti-
cle 5 (related to letters of credit), Article 8 (related
to SECURITIES), and Article 9 (related to secured
transactions).
A number of regulations govern a check when it
passes through the Federal Reserve System. These
regulations govern the availability of funds available
to a depositor in his or her bank account, the delay
between the time a bank receives a deposit and the
time the funds should be made available, and the
process to follow when a check is dishonored for
non-payment. Federal law also provides protection
to bank customers. Prompted by banking crises in
the 1930s, the federal government established the
Federal Deposit Insurance Corporation, which in-
sures bank accounts of individuals and institutions in
amounts up to $100,000.
A number of laws have been passed affecting
banks, banking, and lending. A brief summary of
these is as follows:
• National Bank Act of 1864 established a na-
tional banking systems and chartering of na-
tional banks.
• Federal Reserve Act of 1913 established the
Federal Reserve System. Banking Act of 1933
GALE ENCYCLOPEDIA OF EVERYDAY LAW 81
(GLASS-STEAGALL ACT) established the Feder-
al Deposit Insurance Corporation (FDIC),
originally intended to be temporary.
• Banking Act of 1935 established the FDIC as
a permanent agency.
• Federal Deposit Insurance Act of 1950 re-
vised and consolidated previous laws gov-
erning the FDIC.
• Bank HOLDING COMPANY Act of 1956 set
forth requirements for the establishment of
bank holding companies.
• International Banking Act of 1978 required
foreign banks to fit within the federal regula-
tory framework.
• Financial Institutions Regulatory and Inter-
est Rate Control Act of 1978 created the Fed-
eral Financial Institutions EXAMINATION
Council; it also established limits and report-
ing requirements for insider transactions in-
volving banks and modified provisions gov-
erning transfers of electronic funds.
• Depository Institutions Deregulation and
Monetary Control Act of 1980 began to elimi-
nate ceilings on interest rates of savings and
other accounts and raised the insurance ceil-
ing of insured account holders to $100,000.
• Depository Institutions Act of 1982 (Gar-St.
Germain Act) expanded the powers of the
FDIC and further eliminated ceilings on in-
terest rates. Competitive Equality Banking
Act of 1987 established new standards for
the availability of expedited funds and fur-
ther expanded FDIC authority.
• Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 set forth a number
of reforms and revisions, designed to ensure
trust in the savings and loan industry.
• Crime Control Act of 1990 expanded the
ability of federal regulators to combat FRAUD
in financial institutions.
• Federal Deposit Insurance Corporation Act
of 1991 expanded the power and authority
of the FDIC considerably.
• Housing and Community Development Act
of 1992 set forth provisions to combat MONEY
LAUNDERING and provided some regulatory
relief to certain financial institutions.
• Riegle Community Development and Regu-
latory Improvement Act of 1994 established
the Community Development Financial In-
stitutions Fund to provide assistance to
community development financial institu-
tions.
• Riegle-Neal Interstate Banking and Branch-
ing Efficiency Act of 1994 permitted bank
holding companies that were adequately
capitalized and managed to acquire banks in
any state.
• Economic Growth and Regulatory Paper-
work Reduction Act of 1996 brought forth a
number of changes, many of which related
to the modification of regulation of financial
institutions.
• Gramm-Leach Bliley Act of 1999 brought
forth numerous changes, including the re-
striction of disclosure of nonpublic custom-
er information by financial institutions. The
Act provided penalties for anyone who ob-
tains nonpublic customer information from
a financial institution under false pretenses.
Numerous federal agencies promulgate regula-
tions relevant to banks and banking, including the
Federal Deposit Insurance Corporation, Federal Re-
serve Board, General Accounting Office, National
CREDIT UNION Administration, and Treasury Depart-
ment.
The ability for bank customers to engage in elec-
tronic banking has had a significant effect on the laws
of banking in the United States. Some laws that gov-
ern paper checks and other traditional instruments
are difficult to apply to corresponding electronic
transfers. As technology develops and affects the
banking industry, banking law will likely change even
more.
Banking Transactions
Checks and Other Negotiable Instruments
Article 3 of the Uniform Commercial Code, draft-
ed by the National Conference of Commissioners on
Uniform State Laws and adopted in every state ex-
cept Louisiana, governs the creation and transfer of
negotiable instruments. Since checks are negotiable
instruments, the provisions in Article 3 apply. Be-
cause banks are lending institutions that create notes
and other instruments, Article 3 will also apply in
other circumstances that do not involve checks.
A person who establishes an account at a bank
may make a written order on that account in the
BANKING—BANKING AND LENDING LAW
82 GALE ENCYCLOPEDIA OF EVERYDAY LAW
form of a check. The account holder is called the
drawer, while the person named on the check is
called the payee. When the drawer orders the bank
to pay the person named in the check, the bank is
obligated to do so and reduce the drawer’s account
by the amount on the check. A bank ordinarily has
no obligation to honor a check from a person other
than a depositor. However, both the drawer’s and
payee’s banks generally must honor these checks if
there are sufficient funds to cover the amount of the
check. The payee’s bank must generally honor a
check written to the order of the payee if the payee
has sufficient funds to cover the amount of the
check, in case the drawer of the check does not have
sufficient funds. A drawer may request from the bank
a CERTIFIED CHECK, which means the check is guaran-
teed. Certified checks must be honored by any bank,
and, as such, are considered the same as cash.
A customer’s bank has a duty to know each cus-
tomer’s signature. If another party forges the signa-
ture of the customer, the customer is generally not
liable for the amount of the check. Banks may recov-
er from the forger but may not generally recover
from the innocent customer or a third person who
in GOOD FAITH and without notice of the FORGERY
gave cash or other items of value in exchange for the
check. Drawers have the right to inspect all checks
charged against their accounts to ensure that no for-
geries have occurred. Drawers also have rights to
stop payment on checks that have been neither paid
nor certified by their banks. This is done through a
STOP PAYMENT ORDER issued by the customer to the
bank. If a bank pays a check notwithstanding the
stop payment order, the bank is liable to the custom-
er for the value of the check.
Many of the rules applying the checks apply to all
negotiable instruments. Banks that serve as lending
institutions routinely exchange loans for promissory
notes, which are most likely negotiable instruments.
These instruments are considered property and may
be bought and sold by other entities.
Checking Accounts
Article 4 of the Uniform Commercial Code gov-
erns the operation of checking accounts, though sev-
eral federal laws supplement the provisions of Article
4. The provisions of this uniform law define rights re-
garding bank deposits and collections. It governs
such relationships as those between a depository
bank and a collecting bank and those between a
payor bank and it customers.
Funds Transfers
Article 4A of the Uniform Commercial Code gov-
erns methods of payment whereby a person making
a payment (called the ‘‘originator’’) transmits direct-
ly an instruction to a bank to make a payment to a
third person (called the ‘‘beneficiary’’). Article 4A
covers the issuance and acceptance of a payment
order from a customer to a bank, the EXECUTION of
a payment order by a receiving bank and the actual
payment of the payment order.
Letters of Credit
Article 5 of the Uniform Commercial Code gov-
erns transactions involving the issuance of letters of
credit. Such letters of credit are generally issued
when a party (the ‘‘applicant’’) applies for credit in
a transaction of some sort with a third party (the
‘‘beneficiary’’). The bank will issue a letter of credit
to the BENEFICIARY prior to the transaction. This letter
is a definite undertaking by the bank to honor the let-
ter of credit at the time the beneficiary presents this
letter. Article 5 governs issuance, amendments, can-
cellation, duration, transfer, and assignment of let-
ters of credit. It also defines the rights and obliga-
tions of the parties involved in the issuance of a letter
of credit.
Secured Transactions
When a bank agrees to enter into a loan with a
bank customer, the bank will most likely acquire a se-
curity interest in property owned or purchased by
the customer. This transaction, called a secured
transaction, governed by Article 9 of the Uniform
Commercial Code. Article 9 was substantially revised
in 2000, and the vast majority of states have now
adopted the revised version. The security interest
provides protection for the bank in case the custom-
er fails to pay a debt owed to the bank, even if the
customer enters into BANKRUPTCY. A number of steps
must be followed for the bank to ‘‘perfect’’ the secur-
ity interest, including the filing of documents with
the secretary of state or other appropriate officer in
the state where the customer resides.
Federal Reserve System
The Federal Reserve Board has been delegated
significant responsibility related to the implementa-
tion of laws governing banks and banking. The Board
has issued more than thirty major regulations on a
variety of issues affecting the banking industry. When
a check passes through the Federal Reserve System,
Regulation J applies. This regulation governs the col-
lection of checks and other items by Federal Reserve
BANKING—BANKING AND LENDING LAW
GALE ENCYCLOPEDIA OF EVERYDAY LAW 83
Banks, as well as many funds transfers. This regula-
tion also establishes procedures, responsibilities,
and duties among Federal Reserve banks, the payors,
and other senders of checks through the Federal Re-
serve System, and the senders of wire transmissions.
Regulation J is contained in Title 12 of the CODE OF
FEDERAL REGULATIONS, Part 210.
A second significant regulation promulgated by
the Federal Reserve Board is Regulation CC, which
governs the availability of funds in a bank customer’s
account. This regulation also governs the collection
of checks. Under this regulation, cash deposits made
by a customer into a bank account must be available
to the customer no later than the end of the business
day after the day the funds were deposited. The next-
day rule also applies to several check deposits, as de-
fined by the regulation, although banks are not re-
quired to make funds available for as long as five days
after deposit for many other types of checks. Regula-
tion CC also governs the payment of interest, the re-
sponsibilities of various banks regarding the return
of checks. Liabilities to the bank for failure to adhere
to these rules are defined by the regulation. Regula-
tion CC is contained in Title 12 of the Code of Feder-
al Regulations, Part 229.
Other Federal Reserve Board regulations cover a
variety of transactions under a myriad of statutes.
These include such provisions as those requiring
equal credit opportunity; transfer of electronic
funds; consumer leasing; privacy of consumer finan-
cial information; and truth in lending.
Insurance of Deposits
Congress in 1933 established the Federal Deposit
Insurance Corporation, which is funded by premi-
ums paid by member institutions. If a customer
holds an account at a bank that is a member institu-
tion of the FDIC, the customer’s accounts are in-
sured for an aggregate total of $100,000. Banks that
are member institutions are required to display
prominently signs indicating that the bank is a mem-
ber of the FDIC or a sign that states ‘‘Deposits Feder-
ally Insured to $100,000—Backed by the Full Faith
and Credit of the United States Government.’’ This
applies to many banks that are chartered either fed-
erally or by way of state STATUTE.
Interest Rates Charged by Banks
The federal government until the early 1980s reg-
ulated interest rates charged on bank accounts. In-
terest rates on savings accounts were generally limit-
ed, while interest rates on other types of accounts
were generally prohibited. The Depository Institu-
tions Deregulation Act of 1980 and Garn-St. Germain
Depository Institutions Act eliminated restrictions
and prohibitions on interest rates on savings, check-
ing, money market and other types of accounts.
Truth in Lending
The Truth in Lending Act, which was part of the
CONSUMER CREDIT PROTECTION ACT, provides protec-
tion to consumers by requiring lenders to disclose
costs and terms related to a loan. Most of these dis-
closures are contained in a loan application. Lenders
must include several of the following items:
• Terms and costs of loan plans, including an-
nual percentage rates, fees, and points
• The total amount of principal being financed
• Payment due dates, including provisions for
late payment fees
• Details of variable-interest loans
• Total amount of finance charges
• Details about whether a loan is assumable
• Application fees
• Pre-payment penalties
The Truth in Lending Act also requires lenders to
make certain disclosures regarding advertisements
for loan rates and terms. Specific terms of the credit
must be disclosed, and if the advertisement indicates
a rate, it must be stated in terms of an ANNUAL PERCENT-
AGE RATE, which takes into account additional costs
incurred relating to the loan. Other restrictions on
advertising loan rates also apply. If a bank or other
lending institution fails to adhere to the provision of
the Truth in Lending Act, severe penalties apply.
The Federal Reserve Board has been delegated
authority to prescribe regulations to enforce the pro-
visions of the Truth in Lending Act. These regula-
tions are contained in Regulation Z of the Board.
Usury Laws
Every state establishes a ceiling interest rate that
can be charged by creditors. If a CREDITOR charges an
interest rate higher than the rate established by the
state, the penalties to the creditor can be severe.
BANKING—BANKING AND LENDING LAW
84 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Such penalties may include the FORFEITURE of the
principal debt owed to the creditor by the DEBTOR.
Debtors that are subjected to high interest rates
should consult the USURY laws in that state to deter-
mine whether these laws may apply.
Crimes Related to Banks and Banking
Congress has promulgated a number of criminal
statutes applicable to crimes against banks and bank-
ing institutions. Some crimes are related to more vio-
lent acts, such as robbery, while others focus on non-
violent crimes, such as money laundering. Each of
the crimes listed below is contained in Title 18 of the
United States Code.
• Bank BRIBERY is prohibited under Title 18,
sections 212 through 215.
• Theft by a bank officer or employee is pro-
hibited under Title 18, section 656.
• False bank entry is prohibited under Title 18,
section 1005.
• False statements to the FDIC are prohibited
under Title 18, section 1007.
• Bank fraud is prohibited under Title 18, sec-
tion 1344.
• Obstruction of an examination of a financial
institution is prohibited under Title 18, sec-
tion 1517.
• Money laundering is prohibited under Title
18, sections 1956 through 1960.
• Bank robbery is prohibited under Title 18,
section 2113.
• Crimes involving coins and currency are pro-
hibited under provisions in Title 18, Chapter
17.
State Laws Governing Banks, Banking,
and Lending
All U. S. states have adopted at least a portion of
the Uniform Commercial Code, including Articles 3
(1990 version), 4 (1990 version), 4A (1989 version),
and 5 (1995 version). Article 9 was last revised in
2000, with the previous major revision occurring in
1972. Most state laws governing banks, banking, and
lending are consistent from one state to the next.
Moreover, due to federal regulation of banks and
banking, states are rather limited in their ability to
enact laws that differ from the majority of states.
ALABAMA: Adopted Articles 3 and 4 in 1995; Article
4A in 1992; and Article 5 in 1997. The state has adopt-
ed the Revised Article 9 (2000).
ALASKA: Adopted Articles 3 and 4 in 1993; Article 4A
in 1993; and Article 5 in 1999. The state adopted the
majority of the provisions in the Revised Article 9
(2000) in 2000.
ARIZONA: Adopted Articles 3 and 4 in 1993; Article
4A in 1991; and Article 5 in 1996. The state has adopt-
ed the Revised Article 9 (2000).
ARKANSAS: Adopted Articles 3 and 4 in 1991; Article
4A in 1991; and Article 5 in 1997. The state has adopt-
ed the Revised Article 9 (2000).
CALIFORNIA: Adopted Articles 3 and 4 in 1992; Arti-
cle 4A in 1990; and Article 5 in 1996. The state has
adopted the Revised Article 9 (2000).
COLORADO: Adopted Articles 3 and 4 in 1994; Arti-
cle 4A in 1990; and Article 5 in 1996. The state has
adopted the Revised Article 9 (2000).
CONNECTICUT: Adopted Articles 3 and 4 in 1991;
Article 4A in 1990; and Article 5 in 1996. The state has
adopted the Revised Article 9 (2000).
DELAWARE: Adopted Articles 3 and 4 in 1995; Article
4A in 1992; and Article 5 in 1998. The state adopted
the majority of the provisions in the Revised Article
9 (2000) in 2000.
FLORIDA: Adopted Articles 3 and 4 in 1992; Article
4A in 1991; and Article 5 in 1999. The state has adopt-
ed the Revised Article 9 (2000).
GEORGIA: Adopted Articles 3 and 4 in 1996; Article
4A in 1993. The state has adopted the Revised Article
9 (2000).
HAWAII: Adopted Articles 3 and 4 in 1991; Article 4A
in 1991; and Article 5 in 1996. The state adopted the
majority of the provisions in the Revised Article 9
(2000) in 2000.
IDAHO: Adopted Articles 3 and 4 in 1993; Article 4A
in 1991; and Article 5 in 1996. The state has adopted
the Revised Article 9 (2000).
ILLINOIS: Adopted Articles 3 and 4 in 1991; Article
4A in 1990; and Article 5 in 1996. The state adopted
the majority of the provisions in the Revised Article
9 (2000) in 2000.
INDIANA: Adopted Articles 3 and 4 in 1991; Article
4A in 1991; and Article 5 in 1996. The state adopted
the majority of the provisions in the Revised Article
9 (2000) in 2000.
BANKING—BANKING AND LENDING LAW
GALE ENCYCLOPEDIA OF EVERYDAY LAW 85
IOWA: Adopted Articles 3 and 4 in 1994; Article 4A
in 1992; and Article 5 in 1996. The state adopted the
majority of the provisions in the Revised Article 9
(2000) in 2000.
KANSAS: Adopted Articles 3 and 4 in 1991; Article 4A
in 1990; and Article 5 in 1996. The state adopted the
majority of the provisions in the Revised Article 9
(2000) in 2000.
KENTUCKY: Adopted Articles 3 and 4 in 1996; Article
4A in 1992; and Article 5 in 2000. The state adopted
the majority of the provisions in the Revised Article
9 (2000) in 2000.
LOUISIANA: Adopted Articles 3 and 4 in 1992; Article
4A in 1990; and Article 5 in 1999. The state has adopt-
ed the Revised Article 9 (2000).
MAINE: Adopted Articles 3 and 4 in 1993; Article 4A
in 1992; and Article 5 in 1997. The state adopted the
majority of the provisions in the Revised Article 9
(2000) in 2000.
MARYLAND: Adopted Articles 3 and 4 in 1996; Article
4A in 1992; and Article 5 in 1997. The state has adopt-
ed the Revised Article 9 (2000).
MASSACHUSETTS: Adopted Articles 3 and 4 in 1998;
Article 4A in 1992; and Article 5 in 1998. The state has
adopted the Revised Article 9 (2000).
MICHIGAN: Adopted Articles 3 and 4 in 1993; Article
4A in 1992; and Article 5 in 1992. The state adopted
the majority of the provisions in the Revised Article
9 (2000) in 2000.
MINNESOTA: Adopted Articles 3 and 4 in 1992; Arti-
cle 4A in 1990; and Article 5 in 1997. The state adopt-
ed the majority of the provisions in the Revised Arti-
cle 9 (2000) in 2000.
MISSISSIPPI: Adopted Articles 3 and 4 in 1995; Article
4A in 1992; and Article 5 in 1997. The state has adopt-
ed the Revised Article 9 (2000).
MISSOURI: Adopted Articles 3 and 4 in 1992; Article
4A in 1992; and Article 5 in 1997. The state has adopt-
ed the Revised Article 9 (2000).
MONTANA: Adopted Articles 3 and 4 in 1991; Article
4A in 1991; and Article 5 in 1997. The state has adopt-
ed the Revised Article 9 (2000).
NEBRASKA: Adopted Articles 3 and 4 in 1991; Article
4A in 1991; and Article 5 in 1996. The state has adopt-
ed the Revised Article 9 (2000).
NEVADA: Adopted Articles 3 and 4 in 1993; Article 4A
in 1991; and Article 5 in 1997. The state has adopted
the Revised Article 9 (2000).
NEW HAMPSHIRE: Adopted Articles 3 and 4 in 1993;
Article 4A in 1993; and Article 5 in 1998. The state has
adopted the Revised Article 9 (2000).
NEW JERSEY: Adopted Articles 3 and 4 in 1995; Arti-
cle 4A in 1995; and Article 5 in 1998. The state has
adopted the Revised Article 9 (2000).
NEW MEXICO: Adopted Articles 3 and 4 in 1992; Arti-
cle 4A in 1992; and Article 5 in 1997. The state has
adopted the Revised Article 9 (2000).
NEW YORK: Adopted older uniform law on negotia-
ble instruments in 1897; Article 4A in 1990; and Arti-
cle 5 in 2000. The state has adopted the Revised Arti-
cle 9 (2000).
NORTH CAROLINA: Adopted Articles 3 and 4 in
1995; Article 4A in 1993; and Article 5 in 1999. The
state adopted the majority of the provisions in the
Revised Article 9 (2000) in 2000.
NORTH DAKOTA: Adopted Articles 3 and 4 in 1991;
Article 4A in 1991; and Article 5 in 1997. The state has
adopted the Revised Article 9 (2000).
OHIO: Adopted Articles 3 and 4 in 1994; Article 4A
in 1991; and Article 5 in 1997. The state has adopted
the Revised Article 9 (2000).
OKLAHOMA: Adopted Articles 3 and 4 in 1991; Arti-
cle 4A in 1990; and Article 5 in 1996. The state adopt-
ed the majority of the provisions in the Revised Arti-
cle 9 (2000) in 2000.
OREGON: Adopted Articles 3 and 4 in 1995; Article
4A in 1992; and Article 5 in 1997. The state has adopt-
ed the Revised Article 9 (2000).
PENNSYLVANIA: Adopted Articles 3 and 4 in 1992;
Article 4A in 1992; and Article 5 in 2001. The state has
adopted the Revised Article 9 (2000).
RHODE ISLAND: Adopted Articles 3 and 4 in 2000;
Article 4A in 1991; and Article 5 in 2000. The state
adopted the majority of the provisions in the Revised
Article 9 (2000) in 2000.
SOUTH CAROLINA: Adopted older uniform law on
negotiable instruments in 1914; Article 4A in 1996;
and Article 5 in 2001. The state has adopted the Re-
vised Article 9 (2000).
SOUTH DAKOTA: Adopted Articles 3 and 4 in 1994;
Article 4A in 1991; and Article 5 in 1998. The state
BANKING—BANKING AND LENDING LAW
86 GALE ENCYCLOPEDIA OF EVERYDAY LAW
adopted the majority of the provisions in the Revised
Article 9 (2000) in 2000.
TENNESSEE: Adopted Articles 3 and 4 in 1994; Arti-
cle 4A in 1991; and Article 5 in 1998. The state adopt-
ed the majority of the provisions in the Revised Arti-
cle 9 (2000) in 2000.
TEXAS: Adopted Articles 3 and 4 in 1994; Article 4A
in 1991; and Article 5 in 1998. The state has adopted
the Revised Article 9 (2000).
UTAH: Adopted Articles 3 and 4 in 1993; Article 4A
in 1990; and Article 5 in 1997. The state adopted the
majority of the provisions in the Revised Article 9
(2000) in 2000.
VERMONT: Adopted Articles 3 and 4 in 1994; Article
4A in 1994; and Article 5 in 1998. The state adopted
the majority of the provisions in the Revised Article
9 (2000) in 2000.
VIRGINIA: Adopted Articles 3 and 4 in 1992; Article
4A in 1990; and Article 5 in 1997. The state adopted
the majority of the provisions in the Revised Article
9 (2000) in 2000.
WASHINGTON: Adopted Articles 3 and 4 in 1994; Ar-
ticle 4A in 1991; and Article 5 in 1998. The state
adopted the majority of the provisions in the Revised
Article 9 (2000) in 2000.
WEST VIRGINIA: Adopted Articles 3 and 4 in 1993;
Article 4A in 1990; and Article 5 in 1996. The state
adopted the majority of the provisions in the Revised
Article 9 (2000) in 2000.
WISCONSIN: Adopted Articles 3 and 4 in 1996; and
Article 4A in 1992. The state has adopted the Revised
Article 9 (2000).
WYOMING: Adopted Articles 3 and 4 in 1991; Article
4A in 1991; and Article 5 in 1997. The state has adopt-
ed the Revised Article 9 (2000).
Additional Resources
Banking Law. Matthew Bender & Co., 1981.
Code of Federal Regulations, Title 12: Banks and Bank-
ing. Government Printing Office, 2002. Available at
http://www.access.gpo.gov/nara/cfr/cfr-table-
search.html.
Consumer Banking and Payments Law. Budnitz, Mark,
National Consumer Law Center, 2001.
Lender Liability and Banking Litigation. Mannimo, Ed-
ward F., and Richard E. Kaye, Law Journal Press, 2001.
Truth in Lending, Fourth Edition. 4th ed., Renuart, Eliza-
beth, and Kathleen E. Keest, National Consumer Law
Center, 1999.
U. S. Code, Title 12: Banks and Banking. U. S. House of
Representatives, 1999. Available at http://
uscode.house.gov/title_12.htm.
Organizations
Board of Governors of the Federal Reserve
System, Division of Consumer and
Community Affairs
20th and C Streets, NW, MS 804
Washington, DC 20551 USA
Phone: (202) 452-3667
URL: http://www.federalreserve.gov/
Federal Deposit Insurance Corporation
(FDIC)
550 17th Street, NW
Washington, DC 20429-9990 USA
Phone: (877) ASK-FDIC
URL: http://www.fdic.gov
National Conference of Commissioners on
Uniform State Laws (NCCUSL)
211 E. Ontario Street, Suite 1300
Chicago, IL 60611 USA
Phone: (312) 915-0195
Fax: (312) 915-0187
E-Mail: nccusl@ nccusl.org
URL: http://www.nccusl.org/
Office of the Comptroller of the Currency,
Customer Assistance Group
1301 McKinney, Suite 3710
Houston, TX 77010 USA
Phone: (800) 613-6743
URL: http://www.occ.treas.gov/
Office of Thrift Supervision, Consumer
Program Division
1700 G Street, NW
Washington, DC 20552 USA
Phone: (800) 842-6929
URL: http://www.ots.treas.gov
BANKING—BANKING AND LENDING LAW
GALE ENCYCLOPEDIA OF EVERYDAY LAW 87
This Page Intentionally Left Blank
BANKING
BANKS, SAVINGS & LOANS, CREDIT
UNIONS
Sections Within This Essay:
• Background
• Types of Financial Institutions
- Banks
- Savings and Loans
- Credit Unions
• Automated Teller Machines (ATMs)
• Federal Laws
• Additional Resources
Background
Banks are only one of several kinds of financial in-
stitutions that offer financial services to their pa-
trons. The term ‘‘bank’’ is often used as a collective
term to describe any one of the numerous forms of
financial institutions. Banks, like most other bank-
like financial institutions, are established by charters.
A charter is official permission from a regulating au-
thority (like a state) to accept deposits and/or to pro-
vide financial services. Charters provide the specifics
of a bank’s powers and obligations. State and federal
governments closely regulate banks and bank ac-
counts. Accounts for customers may be established
by national and state financial institutions, all of
which are regulated by the law under which they are
established.
The federal government regulated and controlled
interest rates on bank accounts for many decades.
There was a cap on interest rates for savings ac-
counts, and most interest bearing payments–on–
demand deposit accounts (e.g. checking accounts)
were prohibited. Banks were also prevented from of-
fering money market accounts. But sweeping
changes in banking law in the early 1980s trans-
formed the way banks and other financial institutions
do business. For example, interest rate controls on
savings accounts were eliminated by the DEPOSITORY
Institutions Deregulation Act of 1980 (DIDRA), and
the Garn-St Germain Depository Institutions Act and
the DIDRA lifted restrictions on checking and money
market accounts.
One common and important service offered by
banking institutions is the checking accounts. Feder-
al and state laws govern the operation of checking ac-
counts. Article 4 of the UNIFORM COMMERCIAL CODE,
which has been adopted at least in part by every
state, enumerates the rights and obligations between
financial institutions and their customers with re-
spect to bank deposits and collections. The five prin-
cipal sections of Article 4 cover the following:
1. General provisions and definitions
2. The actions of one bank in accepting the
check of another and those of other banks
that handle the check but are not respon-
sible for its final payment
3. The actions of the bank responsible for
payment of the check
4. The relationship between the bank re-
sponsible for payment of the check and its
customers
5. The handling of documentary drafts,
which are checks or other types of drafts
GALE ENCYCLOPEDIA OF EVERYDAY LAW 89
that will only be honored if certain papers
are first presented to the institution re-
sponsible for payment of the draft
Checks are commercial documents called ‘‘nego-
tiable instruments.’’ Negotiable instruments are
mainly governed by Article 3 of the Uniform COM-
MERCIAL CODE. All states have adopted Article 3 of the
Uniform Commercial Code (UCC), with some modi-
fications, as the law governing negotiable instru-
ments. Other types of negotiable instruments in-
clude drafts and notes. Drafts are documents
ordering some type of payment to be made to a per-
son or an institution. Checks are one kind of draft.
Notes are documents promising payment will be
made. A MORTGAGE is a kind of note. Money, invest-
ment SECURITIES, and some forms of payment orders
are not considered negotiable instruments under Ar-
ticle 3.
In the Great Depression, banks that could not
meet their financial obligations to their customers or
their creditors failed (became bankrupt). Because
the deposits were not insured, individuals and busi-
nesses with money on deposit at the time a bank
failed lost whatever was in the account at the time
the bank failed. The depression and the banking cri-
sis of the 1930’s gave rise to the development of fed-
eral insurance for deposits administered by the Fed-
eral Deposit Insurance Corporation (FDIC). The
program is funded from premiums paid by member
institutions. Under the FDIC, individual bank ac-
counts at insured institutions are protected up to
$100,000. Multiple accounts in a single financial insti-
tution and belonging to the same customer are com-
bined for purposes of the FDIC limits.
Banks are strictly regulated by three federal agen-
cies. Banks are also subject to regulation by state
bank regulators.
The federal agencies are given below:
• COMPTROLLER of the Currency (for national
banks)
• Federal Deposit Insurance Corporation
• Federal Reserve Board
States regulate banks through their banking commis-
sion or department of banking and finance. An offi-
cial called the Commissioner or Director or Superin-
tendent of Banks manages the state’s banking
commission or department of banking and finance.
These state banking authorities may regulate only
banks that have been chartered by the state.
The Gramm-Leach-Bliley Act, signed into law on
November 12, 1999, is one of the most significant
pieces of banking legislation in over fifty years. This
law is the result of decades of effort to restructure
the U. S. financial system. The Gramm-Leach-Bliley
Act is complex and far-reaching, and contains a host
of banking and financial services issues. Perhaps the
most important feature of the Act is that it permits
formal affiliations among banks, securities firms, and
insurance companies. With the passage and imple-
mentation of these laws, the entire U. S. banking in-
dustry has been transformed. The U. S. banking sys-
tem is innovative, yet it remains one of the safest,
most secure systems in the world. It is also one of the
most complex.
Types of Financial Institutions
Banks
In common parlance the term ‘‘bank’’ refers to
many types of financial institutions. In addition to a
bank, the term can refer to a TRUST COMPANY, a sav-
ings bank, savings and loan institution, CREDIT UNION,
thrift, thrift and loan, or trust company
There is a wide variety of banking institutions. The
differences among these financial institutions is the
result of both history and politics. Some banks may
be regulated and supervised by different federal and/
or state agencies. While these institutions may ap-
pear quite similar, they actually have different rights,
powers, and obligations; they may even have differ-
ent tax obligations. Savings and loan associations
must invest more of their assets in home mortgages
than traditional banks. Trust companies manage and
administer trust funds of individuals and PENSION
plans but may not take deposits into checking or sav-
ings accounts. Credit unions enjoy certain tax advan-
tages. Some banking institutions have special depos-
it insurance arrangements. Some financial
institutions can sell other financial services or prod-
ucts—like insurance—and other financial institu-
tions may not. And some financial institutions must
put significant cash reserves on deposit with the fed-
eral government, whereas others do not.
Banks that are chartered by the Comptroller of
the Currency are called ‘‘National banks.’’ National
banks usually bear the words ‘‘national’’ or ‘‘national
association’’ in their titles; sometimes they carry the
letters N. A. or N. S. & T. in their titles.
Savings and Loan Institutions
The primary function of savings and loan associa-
tions is the financing of long-term residential mort-
BANKING—BANKS, SAVINGS & LOANS, CREDIT UNIONS
90 GALE ENCYCLOPEDIA OF EVERYDAY LAW
gages. Savings and loan associations accept deposits
in savings accounts, pay interest on these accounts,
and make loans to residential home buyers. They do
not make business loans of any kind, nor do they
provide many of the other business services one
finds in commercial banks. A privately managed
home financing institution, a savings and loan ac-
cepts savings accounts from individuals and other
sources. This money is then principally invested in
loans for the construction, purchase, or improve-
ment of homes.
Savings and loan associations are primarily in-
volved in making residential loans. Consequently,
they may be good sources of indirect business fi-
nancing for homeowners who own substantial equity
in their homes. For example, if homeowners need
money for their businesses, they can refinance their
homes or take out a second mortgage on the equity
through a SAVINGS AND LOAN ASSOCIATION. The home
equity loan application process at a savings and loan
association is generally simpler than it is for a com-
mercial bank because it is made on the equity of the
home up to a maximum percentage of the equity,
usually between 75 percent to 80 percent. The sav-
ings and loan association bears little risk if the home
is located in a stable or appreciating MARKET VALUE
area. If the borrower defaults on the loan, the savings
and loan association can foreclose the mortgage and,
sell the property to retire the loan, doing so often for
a profit.
Credit Unions
The first credit union in the United States was
formed in Manchester, New Hampshire, in 1909. As
of 2002, there are over 10,000 credit unions in the
United States. They control assets of nearly one–half
a trillion dollars and serve about one–quarter of the
population. Credit unions are members–only institu-
tions. Individuals must join a credit union to take ad-
vantage of its services. But they cannot join just any
credit union— they must first be eligible for mem-
bership. Most credit unions are organized to serve
members of a particular community, group or
groups of employees, or members of an organization
or association. Large CORPORATIONS, unions, or edu-
cational institutions are some of the groups who
commonly form credit unions for their members or
employees.
Federal credit unions are nonprofit, cooperative
financial institutions owned and operated by their
members. Credit unions are democratically con-
trolled with members given the opportunity to vote
on important issues that affect the running of the
credit union. For example, the board that runs a
credit union is elected by its members. Credit unions
provide an alternative to banks and savings and loan
associations as safe places in which to place savings
and borrow at reasonable rates. Credit unions pool
their members’ funds to make loans to one another.
In addition to typical credit unions that serve
members and provide banking and lending services,
there are a few special types of credit unions:
• Community development credit unions:
The NCUA established the Office of Commu-
nity Development Credit Unions in early
1994. These credit unions serve mostly low-
income members in economically distressed
and/or financially deprived areas. Part of
their function is to educate their members
in fundamental money management con-
cepts. At the same time, they provide an eco-
nomic base in order to stimulate economic
development and renewal to their commu-
nities.
• CORPORATE credit unions: These institutions
do not provide services to individuals, but
they serve as a sort of credit union for credit
unions. Nationwide, there are over thirty
federally insured corporate credit unions;
they provide investment, liquidity, and pay-
ment services for their member credit
unions.
Automated Teller Machines (ATMs)
Not all banks or financial institutions have ATMs.
Before ATMs, banks employed tellers to help their
customers conduct all their banking business. Be-
cause ATMs can inexpensively perform many of the
functions formerly done by tellers, ATMs have re-
placed many tellers in the banking institution. There
are no laws requiring banks or other financial institu-
tions to have ATMs. Instead, having one is a business
decision for each bank. ATMs offer distinct advan-
tages over traditional teller operations in terms of
their locations and hours of operation. ATMs are rel-
atively small and can be placed where banks would
not ordinarily open a branch (gas stations, hotel lob-
bies, airports). Furthermore, ATMs are open when
banks are closed; ATMs can function for twenty-four
hours a day, seven days a week.
There has been a process of homogenization in
the banking and financial industries. Services appear
BANKING—BANKS, SAVINGS & LOANS, CREDIT UNIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 91
to be similar in many types of institutions. Neverthe-
less, some important differences among institutions
remain. These differences may exist among banking
institutions within a single state, and among the
same type of institution from state to state. For exam-
ple, a Missouri state chartered bank may have author-
ity to conduct certain forms of business that are very
different from those of a Missouri savings bank. Like-
wise, a Missouri savings and loan may have different
powers from a Missouri national bank. These various
rules and powers result in a difference in services
among the spectrum of financial institutions. These
differences can affect factors like interest rates, issu-
ance of credit cards, ATM services, and so forth.
ATMs can be cost effective to operate when com-
pared to the cost of hiring and training bank tellers.
Even so, there are costs associated with owning and
operating ATMs, including the costs for the follow-
ing:
• Buying the machine
• Renting space for the ATM
• Maintaining the ATM’s mechanical parts
• Paying personnel to load it with money and
remove deposits (if any)
Banks or other financial institutions may charge
patrons for using their bank’s ATM as long as the
bank or financial institution informs patrons of the
terms and conditions of their accounts, and all appli-
cable charges. This information is often contained in
the monthly statements. On the other hand, if indi-
viduals use an ATM that does not belong to their own
bank, the ATM’s owner can charge them for using it.
This is true even though they are gaining access to
their own money kept in their own bank. Likewise,
a bank can also charge its patrons for using someone
else’s ATM machine. In this way, individuals may
incur two charges for using an ATM that does not be-
long to the bank or financial institution at which they
are customers.
Federal Laws
There are many laws that apply to financial institu-
tions. Most of these are found in Title 12 of the Unit-
ed States Code. Some of the most important laws
are:
• 12 USC §§ 1461-1470: Laws regulating Feder-
al Savings and Loan Associations
• 12 USC §§ 4001-4010: The Expedited Funds
Availability Act
• 12 USC § 371a: Garn-St. Germain Depository
Institutions Act
• 12 USC §§ 1811-1832: Federal Deposit Insur-
ance Corporation
• 12 USC: Banks and Banking
• 28 USC § 1348: Banking Associations as Par-
ties to Civil Litigation
In addition to statutes, there are administrative
rules that govern financial institutions. These rules
have the same force and effect as actual laws passed
by Congress. Title 12 of the CODE OF FEDERAL
REGULATIONS is the site of most federal agency regu-
lations that deal with banks and banking.
Additional Resources
‘‘Bank and Thrift Rating Services for Consumers.’’ http://
www.fdic.gov/bank/individual/bank/index.html. FDIC,
2002.
Banking Law. Graham, Ann, ed., Matthew Bender, Inc.,
1981.
‘‘Consumer Rights: Federal Laws.’’ http://www.fdic.gov/
consumers/consumer/rights/index.html. FDIC, 2002.
‘‘Federal Financial Institutions Examination Council.’’
http://www.ffiec.gov/.
Organizations
American Bankers Association (ABA)
1120 Connecticut Avenue, N.W.
Washington, DC 20036 USA
Phone: (800) 226-5377
E-Mail: custserv@aba.com
URL: http://www.aba.com/default.htm
Conference on State Bank Supervisors
(CSBS)
1015 18th Street NW, Suite 1100
Washington, DC 20036 USA
Phone: (202) 296-2840
Fax: (202) 296-1928
URL: http://www.csbs.org/
Federal Depository Insurance Corporation
(FDIC)
550 Seventeenth Street, NW
Washington, DC 20429 USA
URL: http://www.fdic.gov/
BANKING—BANKS, SAVINGS & LOANS, CREDIT UNIONS
92 GALE ENCYCLOPEDIA OF EVERYDAY LAW
National Credit Union Administration
(NCUA)
1775 Duke Street
Alexandria, VA 22314 USA
Phone: (703) 518-6300
URL: http://www.ncua.gov/
Office of the Comptroller of the Currency
(OCC)
1301 McKinney Street, Suite 3710
Houston, TX 77010 USA
URL: http://www.occ.treas.gov/
Office of Thrift Supervision (OTS)
1700 G Street, NW
Washington, DC 20552 USA
Phone: (800) 842-6929
E-Mail: consumer.complaint@ots.treas.gov
URL: www.ots.treas.gov
BANKING—BANKS, SAVINGS & LOANS, CREDIT UNIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 93
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BANKING
FDIC
Sections within this essay:
• Background
• History
• How the FDIC Works
• Definitions
• Additional Resources
Background
Congress created the Federal Deposit Insurance
Corporation (FDIC) in 1933 to protect consumers
who hold their money in banks from bank failures.
Depositors—persons who hold money in savings ac-
counts, checking accounts, certificates of deposit,
money market accounts, Individual Retirement Ac-
counts (IRAs), or Keogh accounts—have FDIC pro-
tection of up to $100,000 in the event of a bank fail-
ure. The FDIC regulates all banks that are members
of the Federal Reserve System and certain banks that
are not members of the Federal Reserve System. It
is the FDIC’s mission to monitor and regulate the
banking industry, making certain that banks operate
safely and legally, and to prevent bank failures while
encouraging healthy competition within the indus-
try. When a bank does fail by not having sufficient as-
sets, the FDIC uses its money to reimburse the
bank’s depositors. It then sells the failed bank’s as-
sets and uses the profits to assist when other banks
fail.
The FDIC employs approximately 8,000 people
throughout the country. The headquarters are in
Washington, D.C., but regional offices exist in Atlan-
ta, Boston, Chicago, Dallas, Kansas City, Memphis,
New York City, and San Francisco. In addition, field
examiners, whose job is to conduct on-site inspec-
tions of banks, have field offices in 80 more locations
throughout the country.
The FDIC has JURISDICTION over banks in the 50
states, the District of Columbia, Guam, Puerto Rico,
and the Virgin Islands. It regulates banks, enforcing
rules such as the Equal Credit Opportunity Act that
prohibits certain forms of DISCRIMINATION in lending,
and inspects banks to be sure they are operating
profitably and legally. Banks that are insured by the
FDIC pay an ASSESSMENT four times per year to the
FDIC. The amount of assessment paid by the bank
depends in part on the amount of funds deposited
with the bank.
History
Banking history in the United States changed for-
ever with the Great Depression. The Great Depres-
sion began when the stock market crashed in Octo-
ber 1929, causing numerous banks to fail, which in
turn caused bank depositors in many cases to lose
most or all of their money. U. S. President Franklin
Delano Roosevelt and Congress responded by creat-
ing the FDIC to guarantee the safety of bank deposits
and regain the public’s confidence in the banking in-
dustry. The history of the FDIC, however, may be
traced back even before the Great Depression.
When the United States was formed in 1776, the
thirteen original colonies each had their own bank-
ing systems, with no uniform currency and little gov-
ernment involvement in the banking systems. In
GALE ENCYCLOPEDIA OF EVERYDAY LAW 95
1791, Congress created the First Bank of the United
States, a bank in Philadelphia that closed in 1811. As
the country grew, banking remained largely unregu-
lated and inconsistent. Following the Civil War, the
economy in the North prospered while the economy
in the South floundered. To encourage economic
stability and consistency throughout the country, the
National Banking Act of 1864 created national banks
as well as the Office of the COMPTROLLER of the Cur-
rency (OCC), and the dollar became the national cur-
rency. Bank failures in the early twentieth century led
the creation of the Federal Reserve System, a central
bank that continues to oversee and regulate national
banks throughout the country.
The economy grew rapidly in the 1920s until the
stock market crash in 1929. Stocks quickly lost their
value, and as a result, banks lost money, farm prices
fell, unemployment soared, and consumers began
taking their money out of banks. Many banks failed
and closed, lacking sufficient funds to pay their lend-
ers and depositors. Finally, in 1933, President Roose-
velt closed all banks temporarily and enacted the
Banking Act. The Banking Act of 1933 established the
FDIC, giving it authority to regulate and oversee
banks and to provide insurance to bank depositors.
In early 1934, the maximum amount of insurance
offered by the FDIC was $2,500, but by the end of the
year the maximum amount increased to $5,000. Also
in 1934, Congress created an entity similar to the
FDIC to protect depositors from failures of federal
savings and loan institutions. This entity was known
as the Federal Savings and Loan Insurance Corpora-
tion (FSLIC).
The Banking Act of 1935 made the FDIC a perma-
nent and independent corporation. Banks continued
to fail throughout the 1930s, and the FDIC honored
its promise to depositors by reimbursing them up to
$5,000 for money lost in bank failures. Gradually, the
number of bank failures declined, and by the late
1930s banks were becoming more profitable. In
1950, the FDIC maximum amount of insurance rose
from $5,000 to $10,000.
In 1960, only four banks insured by the FDIC
failed. The FDIC at that time employed approximate-
ly 2,500 bank examiners, and by 1962, no banks in-
sured by the FDIC failed. In 1966, the FDIC maxi-
mum amount of insurance rose to $15,000, and in
1969, it rose again to $20,000. In 1980, the maximum
amount of insurance was $100,000. It remained at
that amount as of 2002.
Inflation skyrocketed to 14 percent by 1981, and
the interest rates for home mortgages were extreme-
ly high at 21 percent. In 1983, the FDIC continued
to collect more in premiums from member banks
than it paid out for bank failures, but that same year,
48 banks insured by the FDIC failed. By 1984, the
FDIC was paying more on bank failures than it col-
lected in bank assessments, with 79 banks failing. In
1985, 125 banks failed, and in 1986, 138 banks, with
assets totaling $7 billion, failed. What was worse, sav-
ings and loans were failing at an unprecedented rate,
prompting Congress to act in 1989 with the Financial
Institutions Reform, Recovery, and Enforcement Act
(FIRREA). This act created the Resolution Trust Cor-
poration (RTC) as a temporary agency charged with
administering and cleaning up the savings and loan
failures. The act also established the Savings Associa-
tion Insurance Fund (SAIF), which insures deposits
in savings and loan associations and charged the
FDIC with administering the SAIF. The SAIF replaced
the FSLIC.
In 1990, the FDIC began to increase its premium
rate for the first time in its history, charging banks
more to remain FDIC insured. The Federal Deposit
Insurance Corporation Improvement Act of 1991 al-
lowed the FDIC to borrow additional funds from the
U. S. Treasury to rebuild its coffers. It also instructed
the FDIC to set premiums for banks based upon
each bank’s level of risk and to close failing banks in
more cost-effective ways. No longer was the FDIC
permitted to repay all deposits to encourage con-
sumer confidence; rather, Congress strictly limited
the FDIC to reimburse only insured depositors and
only to the maximum amount allowed by law. Con-
gress also mandated that the Federal Reserve System
not lend money to banks in financial trouble. By
1993, bank failure rates were down to their lowest
number in twelve years. Congress dissolved the RTC
and transferred its duties back to the FDIC that same
year.
How the FDIC Works
Provided a financial institution is insured by the
FDIC, the FDIC protects any depositor—individual
or entity—regardless of whether the depositor is a
U. S. citizen or resident. Federally chartered banks,
as well as some state chartered banks, are protected
by the FDIC. If a banking institution is FDIC-insured,
it must display an official FDIC sign at each teller sta-
tion. The FDIC insures deposits that are payable in
the United States; deposits that are only payable
BANKING—FDIC
96 GALE ENCYCLOPEDIA OF EVERYDAY LAW
overseas do not receive FDIC protection. Invest-
ments such as stocks or mutual funds are not FDIC
protected. Deposits into accounts such as savings,
checking, Christmas Club, certificates of deposit
(CDs) are FDIC insured, as are cashiers’ checks, ex-
pense checks, loan disbursement checks, interest
checks, money orders, and other negotiable instru-
ments.
A depositor who has more than $100,000 in de-
posits is protected only to the extent of $100,000 per
FDIC insured institution. This means that consumers
who have assets exceeding $100,000 are best served
by keeping no more than $100,000 in any one FDIC
insured bank. A bank with more than one branch is
considered to be one institution, so merely keeping
funds in different branch locations may not be safe.
For purposes of determining deposit insurance cov-
erage, the FDIC will add all deposits from all branch
offices of the same bank for each depositor. Deposits
of more than $100,000 maintained in a single bank-
ing institution are protected so long as they are main-
tained in different categories of legal ownership. Ex-
amples of different categories of legal ownership
include single ownership versus joint accounts, or in-
dividual retirement accounts (IRAs), Keogh ac-
counts, or PENSION or profit-sharing accounts. Differ-
ent types of accounts, however—checking, savings,
certificates of deposit—are not categories of legal
ownership. Money contained in separate types of ac-
counts is added together for purposes of determin-
ing FDIC insurance coverage.
The FDIC determines legal ownership of bank de-
posits by examining the bank deposit account re-
cords. Assuming those records are unambiguous, the
FDIC insurance goes to the individual or entity
named. FDIC protection continues for up to six
months following the death of a depositor as though
the depositor were alive. This protection is impor-
tant in cases in which the funds of the deceased are
left to a survivor whose own bank deposits, com-
bined with those of the deceased, exceed $100,000.
Without this protection, the survivor would only re-
ceive $100,000 in FDIC insurance; with this protec-
tion, the survivor may receive the insurance afforded
the deceased depositor as well.
Some states have COMMUNITY PROPERTY laws,
meaning that the property of one spouse may legally
be considered as the property of the other spouse
as well. Community property laws, however, do not
affect the coverage afforded by the FDIC. Even in
states that have community property laws, an ac-
count held solely in the name of one spouse will not
be considered by the FDIC as also belonging to the
other spouse. Accounts held in the name of both
spouses will be insured by the FDIC as joint ac-
counts. With joint accounts, the interests of each in-
dividual are added together and insured by the FDIC
to the extent of $100,000. This means that if Mary
and Bill have a joint savings account totaling
$200,000, the FDIC would completely insure Mary’s
portion of $100,000 and would also completely in-
sure Bill’s portion of $100,000.
In the case of retirement funds, such as IRAs and
Keogh accounts, the FDIC considers the accounts to
be insured separately from other non-retirement
funds held by the depositor at the same financial in-
stitution. If a depositor has both IRA and Keogh ac-
counts at the same institution, however, those funds
will be added together and insured only to the ex-
tend of $100,000. Roth IRAs are treated in the same
manner as traditional IRAs.
In the case of business accounts, funds deposited
in the name of a corporation or other business entity
receive the same FDIC protection—up to
$100,000—as do individual accounts. A business en-
tity must not exist merely to increase the FDIC pro-
tection afforded an individual depositor; the busi-
ness entity must exist to perform an ‘‘independent
activity’’ to receive FDIC protection. When a busi-
ness entity owns more than one account, even when
each account is designated for different purposes,
the FDIC will add the total amounts of all accounts
and insure the business entity to a maximum of
$100,000. This rule also applies if a corporation has
separate units or divisions that are not separately in-
corporated. If a business entity is a SOLE
PROPRIETORSHIP, the FDIC treats deposits of the sole
proprietorship as the funds of the individual who is
the sole proprietor. Those funds will be added to any
other insured accounts held by the individual, and
the FDIC will insure no more than $100,000.
In addition to its powers of insuring bank and sav-
ings and loan deposits, the FDIC regulates the bank-
ing industry and may, after proper notice and a
HEARING, discontinue its insurance coverage if a bank
engages in overly risky banking practices. When this
happens, the FDIC requires the bank to provide
timely notice to its depositors of the termination of
FDIC coverage.
BANKING—FDIC
GALE ENCYCLOPEDIA OF EVERYDAY LAW 97
Definitions
Bank: a financial institution, chartered by the state
or federal government, that exists to keep and pro-
tect the money of depositors, disburse funds for pay-
ment on checks, issue loans to businesses and con-
sumers, and perform other money-related functions.
Savings and loan: a financial institution, similar to
a bank, whose primary purpose it to make loans to
customers, most often for the purchase of homes or
other real estate.
Additional Resources
FDIC: Your Insured Deposit www.fdic.gov, 2002.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
Board of Governors of the Federal Reserve
System Division of Consumer and
Community Affairs
20th and C Streets, NW MS 804
Washington, DC 20551 USA
Phone: (202) 452-3667
URL: www.federalreserve.gov
Federal Deposit Insurance Corporation
(FDIC)
550 Seventeenth Street, NW
Washington, DC 20409 USA
Phone: (877) ASK-FDIC
URL: www.fdic.gov
Office of the Comptroller of the Currency
1301 McKinney Suite 3710
Houston, TX 77010 USA
Phone: (800) 613-6743
URL: www.occ.treas.gov
Office of Thrift Supervision Consumer
Program Division
1700 G Street, NW
Washington, DC 20552 USA
Phone: (800) 842-6929
URL: www.ots.treas.gov
BANKING—FDIC
98 GALE ENCYCLOPEDIA OF EVERYDAY LAW
BANKING
INTEREST RATES
Sections within this essay:
• Background
• History
• Interest and Inflation
• State Usury Laws
• Additional Resources
Background
In the world of banking and finance, interest is
money that is paid by a borrower to a lender in ex-
change for the use of the credit. Money held in an
account, such as a bank savings or checking account,
may earn interest also because the bank has use of
the money while it is held in the account and the in-
terest constitutes payment to the account holder for
the temporary use of the money.
Typically, interest is computed as a percentage of
the amount borrowed, which is known as the princi-
pal. Interest may be computed on a yearly basis,
which is known as simple interest. For example, if a
borrower borrows $1,000 at a simple interest rate of
12 percent, with the loan due to be repaid in one
year, the total interest owed on the loan is $120. Al-
ternatively, interest may be compounded. With com-
pounded interest, the calculation of interest occurs
periodically and unpaid interest is added to the pre-
mium. For example, assuming a loan of $1,000 with
a 12 percent interest rate compounded monthly, the
interest that accrues during the first month of the
loan is $120. That amount is added to the principal,
making the total amount $1,120. The interest accru-
ing during the second month of the loan—12 per-
cent of $1,120—is $134.40. With compounded inter-
est, the interest rate stays the same but the amount
of interest may increase periodically.
History
Interest on borrowed funds has existed since an-
cient times, but interest was not always an acceptable
means of conducting business. Religious groups in
the Middle Ages—Jewish, Christian, and Islamic—
forbade the use of interest, considering it reprehen-
sible. Romans in ancient times also outlawed the
practice of charging interest, as did the English gov-
ernment until the thirteenth century. In time, and
with increasing demands for credit to support the
growth of commerce and trade, a distinction was
made between moderate interest rates and excessive
interest rates. Chinese and Hindu laws prohibited ex-
cessive interest rates, known as USURY, and in 1545,
England set a maximum rate of interest. Other coun-
tries followed England’s practice. In the United
States as of 2002, the payment of interest for loans
is a widely accepted business practice, with illegal
usury reserved for interest rates exceeding the maxi-
mums set by law.
Interest and Inflation
Interest rates fluctuate constantly. They are con-
trolled by supply and demand and other economic
indicators. Other factors that help determine an in-
terest rate include the length of the loan and any
COLLATERAL used to secure the loan in the event the
borrower cannot repay the loan. Low interest rates
GALE ENCYCLOPEDIA OF EVERYDAY LAW 99
can stimulate the economy; consumers are attracted
to low interest rates on consumer goods, cars, and
houses and may spend more when interest rates are
low. High interest rates usually have the opposite ef-
fect. Consumers are reluctant or unable to spend
money, or spend as much money, when interest
rates climb.
The Federal Reserve Board of Governors, part of
the Federal Reserve System, sets a benchmark inter-
est rate known as the prime rate. The Federal Re-
serve, the central bank of the United States, was
founded in 1913 to help regulate the country’s
money supply. The goals of the Federal Reserve
Board are to control inflation, maintain stable prices,
and promote maximum employment and output of
products for a favorable economy. This is done, in
part, by raising and lowering interest rates. Low inter-
est rates spur the economy but may lead to inflation,
which harms the economy in the long term. The Fed-
eral Reserve Board looks at a range of economic indi-
cators to help it determine what its policies should
be and whether to raise, lower, or maintain the
prime interest rate.
Any national bank must be a member of the Fed-
eral Reserve System and is governed by its FISCAL pol-
icies. State banks may belong to the Federal Reserve
System but are not required to; state agencies regu-
late state banks. Savings and loans, which are similar
to banks in many ways, are regulated at the federal
level by the Federal Home Loan Banks System. How-
ever, regardless of the Federal Reserve’s
JURISDICTION over any financial entity, the prime in-
terest rate is often the ARBITER of interest rates.
Interest rates have a profound effect on the na-
tional and worldwide economies and are affected by
economic changes as well. Economists like Adam
Smith and David Ricardo theorized that interest rates
are the key in balancing investments with savings.
Marxist economists believe that interest benefits only
capitalists, leaving other classes exploited, since no
service is rendered to those who pay interest. Other
economic theorists have deemed interest as a sort of
reward for those who save, rather than spend, their
money, since bank accounts and other investment
vehicles typically pay interest to account holders.
State Usury Laws
ALABAMA: Legal rate of interest is 6 percent. Usury
limit is 8 percent. Judgment rate is 12 percent.
ALASKA: Legal rate of interest is 10.5 percent. Usury
limit is 5 percent above the Federal Reserve interest
rate as of the date of the loan.
ARIZONA: Legal rate of interest is 10 percent.
ARKANSAS: Legal rate of interest is 6 percent. For
consumers, the usury limit is 17 percent; for non-
consumers, the usury limit is 5 percent above the
Federal Reserve interest rate. Judgment rate is 10
percent per annum or the lawful agreed upon rate,
whichever is higher.
CALIFORNIA: Legal rate of interest is 10 percent for
consumers. Usury limit is 5 percent above the Feder-
al Reserve Bank of San Francisco rate.
COLORADO: Legal rate of interest is 8 percent. Usury
limit is 45 percent. Maximum rates to consumers is
12 percent per annum.
CONNECTICUT: Legal rate of interest is 8 percent.
Usury rate is 12 percent. Interest allowed in civil suits
is 10 percent.
DELAWARE: Legal rate of interest is 5 percent over
the Federal Reserve Rate.
DISTRICT OF COLUMBIA: Legal rate of interest is 6
percent. General usury limit is 24 percent.
FLORIDA: Legal rate of interest is 12 percent. Gener-
al usury limit is 18 percent. For loans exceeding
$500,000, the maximum rate is 25 percent.
GEORGIA: Legal rate of interest is 7 percent. Usury
limit for loans less than $3,000 is 16 percent; other-
wise 5 percent. For loans below $250,000, interest
rate must be specified in writing and in simple inter-
est.
HAWAII: Legal rate of interest is 10 percent. Usury
limit for consumers is 12 percent.
IDAHO: Legal rate of interest is 12 percent. Judg-
ment interest is 5 percent above U. S. Treasury
SECURITIES rate.
ILLINOIS: Legal rate of interest is 5 percent. General
usury limit is 9 percent. Judgment rate is 9 percent.
INDIANA: Legal rate of interest is 10 percent. Judg-
ment rate is 10 percent.
IOWA: Legal rate of interest is 10 percent. Maximum
rate for consumer transactions is 12 percent.
KANSAS: Legal rate of interest is 10 percent. Usury
limit is 15 percent. Judgment rate is 4 percent above
BANKING—INTEREST RATES
100 GALE ENCYCLOPEDIA OF EVERYDAY LAW
federal discount rate. For consumer transactions,
maximum rate of interest for first $1,000 is 18 per-
cent; otherwise 14.45 percent.
KENTUCKY: Legal rate of interest is 8 percent. Usury
limit is 4 percent above Federal Reserve rate or 19
percent, whichever is less. No limit for loans exceed-
ing $15,000. Judgment rate is 12 percent compound-
ed annually or at a rate set by the court.
LOUISIANA: Legal rate of interest 1 percent above av-
erage prime rate, not exceeding 14 percent or less
than 7 percent. Usury limit is 12 percent.
MAINE: Legal rate of interest is 6 percent. Judgment
rate is 15 percent for judgments below $30,000; oth-
erwise the 52 week average discount rate for T-Bills
plus 4 percent.
MARYLAND: Legal rate of interest is 6 percent. Usury
limit is 24 percent. Judgment rate is 10 percent.
MASSACHUSETTS: Legal rate of interest is 6 percent.
Usury limit is 20 percent. Judgment rate is 12 percent
of 18 percent if the court finds a frivolous defense.
MICHIGAN: Legal rate of interest is 5 percent. Usury
limit is 7 percent. Judgment rate is 1 percent above
the five year T-note rate.
MINNESOTA: Legal rate of interest is 6 percent.
Usury limit is 8 percent. Judgment rate is secondary
market yield for one year T-Bills.
MISSISSIPPI: Legal rate of interest is 9 percent. Usury
limit is 10 percent or 5 percent above the federal re-
serve rate. No usury limit on commercial loans ex-
ceeding $5,000. Judgment rate is 9 percent or legally
agreed upon rate.
MISSOURI: Legal rate of interest is 9 percent. Judg-
ment rate is 9 percent.
MONTANA: Legal rate of interest is 10 percent. Gen-
eral usury limit is 6 percent above New York City
bank’s prime rate. Judgment rate is 10 percent.
NEBRASKA: Legal rate of interest is 6 percent. Usury
limit is 16 percent. Judgment rate is 1 percent above
bond yield equivalent to T-Bill auction price.
NEVADA: Legal rate of interest is 12 percent. No
usury limit.
NEW HAMPSHIRE: Legal rate of interest is 10 per-
cent. No general usury limit.
NEW JERSEY: Legal rate of interest is 6 percent.
Usury limit generally is 30 percent for individuals and
50 percent for CORPORATIONS.
NEW MEXICO: Legal rate of interest is 15 percent.
Judgment rate is determined by the court.
NEW YORK: Legal rate of interest is 9 percent. Gener-
al usury limit is 16 percent.
NORTH CAROLINA: Legal rate of interest is 8 per-
cent. General usury limit is 8 percent.
NORTH DAKOTA: Legal rate of interest is 6 percent.
General usury limit is 5.5 percent above six-month
treasury bill interest rate. Judgment rate is 12 per-
cent.
OKLAHOMA: Legal rate of interest is 6 percent. Con-
sumer loans may not exceed 10 percent unless lend-
er is licensed; usury limit on non-consumer loans is
45 percent. Judgment rate is 4 percent above T-Bill
rate.
OREGON: Legal rate of interest is 9 percent. Judg-
ment rate is 9 percent or agreed upon rate, whichev-
er is higher. Usury limit is 12 percent for loans less
than $50,000.
PENNSYLVANIA: Legal rate of interest is 6 percent.
General usury limit is 6 percent for loans less than
$50,000. Criminal usury limit is 25 percent. Judgment
rate is 6 percent.
PUERTO RICO: Legal rate of interest is 6 percent.
RHODE ISLAND: Legal rate of interest is 12 percent.
Judgment rate is 12 percent. Usury limit is 21 percent
or 9 percent above the interest rate charged for T-
Bills.
SOUTH CAROLINA: Legal rate of interest is 8.75 per-
cent. Judgment rate is 14 percent.
SOUTH DAKOTA: Legal rate of interest is 15 percent.
Judgment rate is 12 percent.
TENNESSEE: Legal rate of interest is 10 percent.
Judgment rate is 10 percent. General usury limit is
24 percent, or 4 percent above average prime rate,
whichever is less.
TEXAS: Legal rate of interest is 6 percent. Judgment
rate is 18 percent or contracted rate, whichever is
less.
UTAH: Legal rate of interest is 10 percent. Judgment
rate is 12 percent or contracted rate.
VERMONT: Legal rate of interest is 12 percent. Judg-
ment rate is 12 percent. General usury limit is 12 per-
cent.
BANKING—INTEREST RATES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 101
VIRGINIA: Legal rate of interest is 8 percent. Judg-
ment rate is 8 percent or contracted rate. No usury
limit for corporation or business loans.
WASHINGTON: Legal rate of interest is 12 percent.
General usury limit is 12 percent or 4 percent above
average T-Bill rate, whichever is greater. Judgment
rate is 12 percent or contracted rate, whichever is
higher.
WEST VIRGINIA: Legal rate of interest is 6 percent.
WISCONSIN: Legal rate of interest is 5 percent. Judg-
ment rate is 12 percent.
WYOMING: Legal rate of interest is 10 percent. Judg-
ment rate is 10 percent or contracted rate, whichever
is less.
Additional Resources
Lectric Law Library. Lectric Law Library, 2002. Available at
www.lectlaw.com.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Bankers Association
1120 Connecticut Avenue, NW
Washington, DC 20036 USA
Phone: (800) 226-5377
URL: www.aba.com
bankrate.com
11811 U.S. Highway 1
North Palm Beach, FL 33408 USA
Phone: (561) 630-2400
URL: www.bankrate.com
United States Federal Reserve
20th Street and Constitution Avenue, NW
Washington, DC 20551 USA
Phone: (202) 452-3819
URL: www.federalreserve.gov
BANKING—INTEREST RATES
102 GALE ENCYCLOPEDIA OF EVERYDAY LAW
BUSINESS LAW
CORPORATIONS
Sections within this essay:
• Background
• History
• Forming a Corporation
• Shareholders, Directors, and Officers
• Additional Resources
Background
A corporation is a distinct legal entity created by
STATUTE. CORPORATIONS have many of the same legal
rights and obligations as do individuals. They can
own and sell property, they can hold profits or ac-
quire debts, they can enter into contracts and sue or
be sued, and governments can tax them. Corpora-
tions are advantageous primarily because they be-
come legal entities that are separate and distinct
from the individuals who own and control them. This
separation is important because in most cases these
individuals have limited or no legal liability for the
corporation’s wrongdoings.
History
Roman law first developed the concept of corpo-
rations, and England adopted the concept long be-
fore the founding of the United States. As the states
became independent from England in 1776, they too
adopted corporations as distinct legal entities and as-
sumed JURISDICTION over them. Today, the federal
government continues to leave the control of corpo-
rations primarily to the states.
Corporations did not become commonplace in
the United States until the Industrial Revolution at
the turn of the nineteenth century. They then quick-
ly developed as an efficient manner in which to con-
duct a large enterprise while at the same time offer-
ing a degree of protection to investors and owners
from legal liability. Investors and owners increasingly
were drawn to the idea of the corporation, and
today, corporations are a mainstay in domestic and
international business.
There are several types of corporations. Private
corporations exist to make money for their investors
and owners. Non-profit corporations, such as chari-
ties, exist to help a certain group of citizens or the
general public. Municipal corporations are cities.
Quasi-public corporations are entities such as tele-
phone or electric companies that exist to make a
profit as well as provide a service to the general pub-
lic. A public corporation exists to make a profit, but
it is distinguishable because it has a large number of
investors known as shareholders. Shareholders own
portions, known as shares, of the public corpora-
tions and may buy, sell, or trade their shares. Closely-
held corporations have shareholders also but usually
a much smaller group of shareholders. Often, close-
ly-held corporations are owned by members of a
family. Shareholders in closely-held corporations
usually run the business, whereas shareholders in
public corporations usually do not.
Forming a Corporation
An individual who wishes to start a corporation is
known as a promoter. The promoter must find the
money to start a corporation. This financing is
known as capital and can be the promoter’s own
GALE ENCYCLOPEDIA OF EVERYDAY LAW 103
money, a loan from a bank or other financial institu-
tion, or money from an investor or group of investors
who lend money to the promoter typically in ex-
change for future CORPORATE profits. Before legally
forming the corporation, or incorporating, the pro-
moter often locates office or building space to house
the corporation, identifies the people who will run
the corporation, and then prepares the documents
to make the corporation a legal entity. The work ac-
complished by the promoter prior to incorporation
often necessitates contractual arrangements such as
leases and loans. Because the corporation does not
officially exist yet, the promoter must be the entity
that enters into contracts. Later, when the corpora-
tion is legally formed, the corporation is considered
as having assented to those contracts that were
formed to benefit it prior to its official birth.
Corporation laws vary from state to state, but
most states have the same basic requirements for
forming a corporation. Promoters must file a docu-
ment called the ARTICLES OF INCORPORATION with the
secretary of state. These articles must include the
corporation’s name, whether the corporation will
exist for a limited period of time or perpetually, the
lawful business purpose of the corporation, the num-
ber of shares that the corporation will issue to share-
holders as well as the types and preferences of the
shares, the corporation’s registered agent and ad-
dress for the purpose of accepting service of process
in the event that the corporation is sued, and the
names and addresses of the corporation’s directors
and incorporators.
A corporation must also have BYLAWS, although
states generally do not require that corporations file
the bylaws with the secretary of state. Bylaws are
rules that dictate how the corporation is going to be
run. Bylaws are fairly easy to amend. They may in-
clude rules regarding the conduct of corporate offi-
cers, directors, and shareholders, and typically they
designate times, locations, and voting requirements
for corporate meetings.
Small corporations frequently incorporate in the
state in which they operate. However, promoters can
incorporate in any state they wish. Delaware is the
most popular state for corporations because its his-
tory of legislation is particularly friendly to corpora-
tions. With other states recently adopting laws mod-
eled after Delaware’s, Delaware has lost some of its
competitive edge in recent years. Still, Delaware con-
tinues to lead the nation in incorporations largely be-
cause corporate attorneys throughout the country
are familiar with the laws in that state, because Dela-
ware infrequently changes its corporate laws, and be-
cause Delaware courts specialize in legal issues re-
garding corporations.
Shareholders, Directors, and Officers
Shareholders are the individuals or groups that in-
vest in the corporations. Each portion of ownership
of a corporation is known as a share of stock. An indi-
vidual may own one share of stock or several shares.
Shareholders have certain rights when it comes to
the corporation. The most important one is the right
to vote, for example, to elect the corporation’s board
of directors or change the corporation’s bylaws.
Shareholders vote on only a very limited number of
corporate issues, but they nevertheless have the
right to exert some control over the corporation’s
dealings. Shareholder voting typically takes place at
an annual meeting, which states usually require of
corporations. Corporations or shareholders may also
request special meetings when a shareholder voting
issue arises. It is not always practical for sharehold-
ers, who may live in various parts of the country or
the world, to attend corporate meetings. For this rea-
son, states permit shareholders to vote by authoriz-
ing, in writing, that another person may vote on be-
half of the shareholder. This manner of voting is
known as proxy.
Shareholders also have the right to investigate the
corporation’s books. So long as the shareholder
seeking to investigate the corporation’s records is
doing so for a proper purpose or a purpose that rea-
sonably relates to the shareholder’s financial inter-
ests, the corporation must allow the inspection. In
some cases, a corporation may require that the
shareholder hold a minimum number of shares or
that the shares be held for a certain period of time
before allowing a shareholder to inspect the corpora-
tion’s books and records.
A corporation is governed by a board of individu-
als known as directors who are elected by the share-
holders. Directors may directly manage the corpora-
tion’s affairs when the corporation is small, but when
the corporation is large, directors primarily oversee
the corporation’s affairs and delegate the manage-
ment activities to corporate officers. Directors usual-
ly receive a salary for their work on the corporate
board, and directors have a FIDUCIARY duty to act in
the best interests of the corporation. These fiduciary
duties require the directors to act with care toward
the corporation, to act with loyalty toward the corpo-
BUSINESS LAW—CORPORATIONS
104 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ration, and to act within the confines of the law. A di-
rector who breaches this fiduciary duty may be sued
by the shareholders and held personally liable for
damages to the corporation.
The articles of incorporation or the corporate by-
laws determine how many directors will serve on the
board of directors and how long the directors’ terms
will be. Directors hold meetings at regular intervals
as defined in the corporate bylaws and, in addition,
may also call special board meetings when needed.
At board meetings, directors discuss issues affecting
the corporation and make decisions about the cor-
poration. Before the board can make a decision af-
fecting the corporation, however, there must be a
quorum, or certain minimum number of directors,
present at the meeting. The precise number consti-
tuting a quorum may be determined by the bylaws
or by statute.
The fiduciary duty held by directors requires them
to act with due care, which means that the director
must act reasonably to protect the corporation’s best
interests. Courts will find a breach of the fiduciary
duty when a director engages in self-dealing or
NEGLIGENCE. Self-dealing occurs when the director
makes a decision on behalf of the corporation that
simultaneously benefits the director’s personal inter-
ests. For example, assume a director for a wholesale
foods corporation also owns separately a grocery
store. At a corporate board meeting, the director
votes to reduce by fifty percent the cost of wholesale
apples sold by the corporation to independent gro-
cery stores. Such an act would likely benefit the di-
rector’s grocery store and could hurt the corpora-
tion’s profitability. A court would likely determine
such an act to be a breach of the director’s fiduciary
duty toward the corporation.
Directors are not in breach of their fiduciary duty
merely because a decision they make on behalf of
the corporation results in trouble for the corpora-
tion. Directors who base their decisions on reason-
able information and who act rationally in making
their decisions may not be held personally liable
even if those decisions turn out to be poor ones. This
legal emphasis on protecting a director’s decision-
making process is known as the business judgment
rule.
The roles of corporate officers—typically the cor-
poration’s president, vice presidents, treasurer, and
secretary—are defined by the corporate by-laws, arti-
cles of incorporation, and statutes. The president
acts as the primary officer and sometimes is called
the chief executive officer or CEO. The vice presi-
dent is second in command and makes decisions in
the president’s absence. The secretary keeps track of
the corporate records and takes minutes at corpo-
rate meetings. The treasurer keeps track of corpo-
rate finances. Corporate officers act as agents of the
corporation and have the responsibility of negotiat-
ing contracts to which the corporation is a party.
When a corporate officer signs a contract on behalf
of the corporation, the corporation is legally bound
to the terms of the contract. Officers, like directors,
also have a fiduciary duty toward the corporation and
may be held personally liable for acts taken on behalf
of the corporation.
When a corporation engages in wrongdoing, such
as FRAUD, fails to pay taxes correctly, or fails to pay
debts, the people behind the corporation generally
are protected from liability. This protection results
from the fact that the corporation takes on a legal
identity of its own and becomes liable for its acts.
However, courts will in some cases ignore this sepa-
rate corporate identity and render the shareholders,
officers, or directors personally liable for acts they
have taken on the corporation’s behalf. This assign-
ment of liability is known as piercing the corporate
veil. Courts will pierce the corporate veil if a share-
holder, officer, or director has engaged in fraud, ille-
gality, or misrepresentation. Courts also will pierce
the corporate veil when the corporation has not fol-
lowed the STATUTORY requirements for incorporation
or when corporate funds are commingled with the
PERSONAL PROPERTY of an individual or when a corpo-
ration is undercapitalized or lacks sufficient funding
to operate.
Shares and Dividends
The articles of incorporation define how many
shares, or ownership portions, the corporation will
issue as well as what types of stock the corporation
will issue. A corporation that issues only one type of
stock issues common shares, or COMMON STOCK.
Common shareholders have the right to vote and
also the right to the corporation’s NET assets, also
known as dividends. A corporation may designate
different classes of common stock, with different vot-
ing and DIVIDEND rights for those shareholders. PRE-
FERRED STOCK is a type of stock issued by corpora-
tions that in most cases do not grant the shareholder
the right to vote. However, owners of preferred
stock usually have greater rights to receive dividends
than do owners of common stock.
BUSINESS LAW—CORPORATIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 105
Additional Resources
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
Delaware Division of Corporations
401 Federal Street, Suite 4
Dover, Delaware 19901 USA
Phone: (302) 739-3073
URL: http:\\www.state.de.us.corp
BUSINESS LAW—CORPORATIONS
106 GALE ENCYCLOPEDIA OF EVERYDAY LAW
BUSINESS LAW
LIMITED LIABILITY COMPANIES
Sections within this essay:
• Background
• Characteristics of Limited Liability Compa-
nies
- Comparisons with Other Business
Entities
- Member-Managed Limited Liability
Companies
- Manager-Managed Limited Liability
Companies
• Formation of Limited Liability Companies
- Articles of Organization
- Number of Members in Limited Lia-
bility Companies
- Operating Agreement
- Naming a Limited Liability Company
• Liability of Limited Liability Companies and
Members
- Nature of Limited Liability
- ‘‘Piercing’’ a Limited Liability Compa-
ny’s ‘‘Veil’’
- Tax Liability of Limited Liability Com-
panies
• Duties and Rights of Members of Limited Lia-
bility Companies
- Fiduciary Duties
- Indemnity and Contribution Rights
- Distributions
- Transferring Interests
• Dissolution of Limited Liability Companies
• State Laws Governing Limited Liability Com-
panies
• Additional Resources
Background
Limited liability companies (LLCs) developed in
the 1990s as a very popular form of business in the
United States. This form of business is a hybrid of
components of partnerships and CORPORATIONS. Like
partnerships, LLCs can be managed completely by
owners of the business, who are called members.
These businesses are now generally taxed in the
same category as partnerships, rather than corpora-
tions. Owners of an LLC also enjoy limited liability
similar to that of a corporation. The LLC business
form provides flexibility that is not generally available
in other types of business forms, thus making the
LLC a favorite of many business owners.
The federal government in 1997 eliminated some
tax concerns regarding LLCs with the enactment of
so-called ‘‘check-the-box’’ regulations. Owners of
LLCs can choose to be taxed as a partnership, which
is beneficial because the company itself is not taxed;
only the owners themselves must pay taxes. Since
the passage of these tax regulations, owners of an
LLC could establish a business with management
functionally identical to that of a corporation, yet the
company will be taxed as a partnership.
Every state now permits the LLC as a business
form. The National Conference of Commissioners on
Uniform State Laws drafted the Uniform LIMITED LIA-
BILITY COMPANY Act in 1995, with subsequent amend-
ments that were necessary after the enactment of
check-the-box tax regulations. Though only eight
states have adopted this act, several states have mod-
ified their statues to be consistent with the uniform
law. Although LLC statutes are often similar from one
state to the next, a person should check the laws gov-
erning LLCs in his or her individual state.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 107
Characteristics of Limited Liability
Companies
Comparisons with Other Business Entities
Limited liability companies can take a form similar
to almost any other business entity. Member-
managed LLCs, discussed below, are most analogous
to the various partnership forms, including general
partnerships, limited partnerships, limited liability
partnerships, or limited liability limited partnerships.
Manager-managed LLCs, discussed below, may now
be formed in every state and are most analogous to
corporations. By forming an LLC, members can gen-
erally establish the business form that best suits their
company, without suffering the drawbacks associat-
ed with other business forms, such as lack of limited
liability or double TAXATION.
Member-Managed Limited Liability
Companies
The DEFAULT form of a limited liability company in
most jurisdictions is the member-managed LLC. This
is based on the idea that the LLC in its basic form is
managed similarly to a partnership, rather than a cor-
poration. Under partnership law, all general partners
have an equal right to manage the business, unless
the partners agree otherwise in a partnership agree-
ment. Similarly, LLC members generally have equal
management rights, unless the members agree oth-
erwise in the articles of organization or the operating
agreement. Members in an LLC, like partners in a
partnership, also have equal voting rights in several
jurisdictions, including those that have adopted the
Uniform Limited Liability Company Act. However,
some states divide voting rights proportionately
based on the financial interests of each of the mem-
bers. Such an allocation is more similar to voting
rights in a corporation. It should be noted that most
of the rules regarding management may be modified
by the members in the operating agreement. The
state laws are often ‘‘default’’ rules that apply in the
absence of such an agreement. Members in a mem-
ber-managed LLC have the authority to act as an
agent of the LLC.
Manager-Managed Limited Liability
Companies
In a manager-managed LLC, members employ
managers to operate the company. A manager-
managed LLC must be established in the articles of
organization in about half of the states. A manager-
managed LLC resembles a corporation, rather than
a partnership, because some or all of the owners of
the company do not make day-to-day management
decisions. These decisions are rather left to agents of
the company, some of whom may be members. If an
owner serves as a member, but not as a manager, in
this form of business, that owner does not generally
have the authority to act as an agent of the company.
Formation of Limited Liability Companies
Articles of Organization
To form an LLC, owners must generally file a doc-
ument called the articles of organization, which are
similar to ARTICLES OF INCORPORATION for a
CORPORATE form of business. The contents of the arti-
cles vary slightly from one state to the next, but gen-
erally contain the following information:
• The name of the LLC
• The address of the LLC
• The name and address of the registered
agent for service of process
• The name and address of each prospective
member of the LLC
• An indication of whether the LLC will exist
only for a specific term
• An indication of whether the LLC is manag-
er-managed
• An indication of whether an LLC’s members
will be personally liable for the debts and ob-
ligations of the company
Number of Members in Limited Liability
Companies
It is possible to establish an LLC with only one
member in most jurisdictions. By comparison, it is
not possible to form a single-member partnership,
since partnership law contemplates an agreement
between two or more persons. An owner of a single-
member LLC can enjoy limited liability and will be
taxed as a SOLE PROPRIETORSHIP under federal tax
laws.
Operating Agreement
While articles of organization are the most basic
documents prepared by an LLC, the operating agree-
ment is the focal point of most LLCs. This agreement
is similar to a partnership agreement in that it reflects
the decisions made by the members of the LLC with
respect to the operation of the company. It may con-
tain provisions regarding management and gover-
nance of the company, maintenance of capital ac-
counts, compensation and distributions, admission
BUSINESS LAW—LIMITED LIABILITY COMPANIES
108 GALE ENCYCLOPEDIA OF EVERYDAY LAW
or withdrawal of members, and a number of other
provisions. Although the operating agreement is not
generally mandatory, it is a necessary document for
practical purposes.
Naming a Limited Liability Company
The Uniform Limited Liability Company Act and
many states require that an LLC’s name include the
words ‘‘limited liability company’’ or ‘‘limited com-
pany,’’ or the abbreviations ‘‘L.L.C.,’’ ‘‘LLC,’’ ‘‘L.C.,’’
or ‘‘LC’’. Such a requirement exists so that individu-
als and other businesses will know they are dealing
with a limited liability entity in a business transaction.
Liability of Limited Liability Companies
and Members
Nature of Limited Liability
Providing limited liability to members of an LLC
does not completely shield members from any liabili-
ty. The most basic shield is that members are not
personally liable for the debts, obligations, and liabili-
ties of the LLC. Members may agree that some mem-
bers are personally liable for the debts and other ob-
ligations of the company, and the members can
include a provision regarding personal liability in the
articles of organization. To hold a member personal-
ly liable, the member must generally consent in writ-
ing to this provision.
In addition to a member consenting to personal
liability, members can also be liable in several other
instances. The most notable exceptions are as fol-
lows:.
• Members are always liable for their own
torts, even when members are acting on be-
half of the LLC. Thus, for example, if a mem-
ber is negligent when performing some act
for the LLC, and this NEGLIGENCE causes
harm to a third party, the member is person-
ally liable.
• Members are liable when they agree to con-
tribute to the LLC. Members may also be re-
quired to return money or property to the
company if the company is insolvent.
• Members who seek to bind the LLC without
the authority to do so may be liable for an
obligation created, such as a contract with a
third person. The member in such a case will
be liable to both the LLC and the third per-
son.
• Members are personally liable in some situa-
tions involving collection and payment of
employment taxes.
‘‘Piercing’’ a Limited Liability Company’s
‘‘Veil’’
In laws governing corporations, the protection
against personal liability of owners is often referred
to as the ‘‘veil’’ of limited liability. Corporation laws
permit, in some circumstances, permit third parties
to ‘‘pierce the veil’’ of limited liability, usually when
owners use the corporate form of business to perpet-
uate FRAUD. One of the more interesting issues that
has arisen with respect to limited liability companies
is whether a court could pierce the veil of a limited
liability company if the owners of the LLC engage in
improper conduct that would allow a corporation’s
veil to be pierced. This issue has not be completely
resolved, though some states now provide provi-
sions permitting the piercing of an LLCs veil on
grounds similar to that of a corporation.
Tax Liability of Limited Liability Companies
Prior to January 1, 1997, owners of limited liability
companies had to consider their tax classification
when they organized their companies. If an LLC were
too similar to a corporation, the LLC may have been
taxed as a corporation under the former tax regula-
tions (the ‘‘Kintner’’ regulations). The regulations
that went into effect in 1997 allow owners of LLCs to
select the tax treatment of their company. Under the
‘‘check-the-box’’ regulations, owners of an LLC may
elect to be taxed as a partnership even if the business
is organized similar to a corporation. Since these tax
regulations came into effect, the process of forming
an LLC has been simplified, and many states have re-
moved provisions in state statutes governing LLCs
that were designed to allow LLCs avoid similarities
with corporations.
Duties and Rights of Members of Limited
Liability Companies
Fiduciary Duties
If a member of an LLC is also a manager, then that
member is in a position of trust. To protect other
owners of the LLC, these members owe the LLC the
duty of loyalty and the duties of care. The duty of loy-
alty prevents a member from competing with the
LLC in another business. A member must refrain
from dealing with a person or business with interests
adverse to those of the LLC and account for any ben-
efits received from use of LLC property or from the
BUSINESS LAW—LIMITED LIABILITY COMPANIES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 109
winding up of LLC affairs. The duty of care requires
a member to refrain from grossly negligent, reckless,
or intentional misconduct. The duties of loyalty and
care are similar in partnership law. Managers of an
LLC who are not owners are held to the same stan-
dard. However, a member who is not a manager of
a manager-managed LLC is not bound by the same
FIDUCIARY duties, since such a manager is not in-
volved in the day-to-day activities of the company.
Indemnity and Contribution Rights
The Uniform Limited Liability Company Act pro-
vides that a member must be reimbursed for pay-
ments made on behalf of the LLC and indemnified
for liabilities incurred by the member during the or-
dinary course of the LLC’s business. These rights are
similar to those provided to partners in a general
partnership. However, most state statutes do not ad-
dress indemnity rights. Similarly, the ULLCA provides
that members are required to make contributions ac-
cording to the agreement of the owners of the com-
pany, which is similar to rights provided in partner-
ship laws. An operating agreement will often set
forth such indemnity and contribution rights.
Distributions
The default rules regarding distributions to mem-
bers differ among the states. Some states provide
that members receive a share of distributions in the
same proportion as their contributions to the LLC
(pro rata distribution). Other states, including those
that have adopted the ULLCA, provide for equal dis-
tribution among the members (PER CAPITA distribu-
tion). These provisions can be altered in the operat-
ing agreement.
Transferring Interests
A member may transfer his or her financial rights
to profits and losses, and the right to receive distribu-
tions, in all states. However, a member cannot trans-
fer full ownership interests, such as those related to
the right to manage the company, without unani-
mous agreement of all of the other members. Rights
related to transferability of interests can be modified
in the operating agreement.
Dissolution of Limited Liability
Companies
In most states, an LLC is dissolved when an event
occurs that is specified in the operating agreement:
the requisite number of members consents to
DISSOLUTION, as provided by the operating agree-
ment; some event occurs that renders the LLC’s busi-
ness unlawful; a term set forth in the operating
agreement expires; or a judicial DECREE dissolves the
LLC due to misconduct or frustration of an LLC’s
business purpose. When an LLC dissolves, the wind-
ing up process commences. The LLC’s assets are liq-
uidated, creditors are paid, and members received
distributions in a manner specified by the operating
agreement or state law. Once dissolution has oc-
curred, the LLC may file articles of termination with
the state, indicating that the LLC is no longer in busi-
ness.
State Law Governing Limited Liability
Companies
Many laws governing limited liability companies
are similar from one state to the next. However,
some differences exist that could affect the forma-
tion or management of a limited liability company.
A number of the laws governing LLCs provide default
provisions that can be modified by in the organizing
agreement of the LLC.
ALABAMA: Alabama adopted the Uniform Limited Li-
ability Company Act in 1999. Articles of organization
are filed first with a PROBATE judge in the county in
which the registered office of the LLC is located, then
with the Secretary of State. Single member LLCs are
not permitted. Distributions are made proportion-
ately to the interests of the members by default.
ALASKA: Articles of organization are filed with the
Department of Commerce and Economic Develop-
ment. Single member LLCs are permitted. Distribu-
tions are made equally by default.
ARIZONA: Articles of organization are filed with the
state’s corporation commission. Single member LLCs
are permitted. Other provisions are generally gov-
erned by operating agreements of the LLCs.
ARKANSAS: Articles of organization are filed with the
office of Secretary of State. Single member LLCs are
permitted. Voting and distribution rights are general-
ly equal among the members by default.
CALIFORNIA: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
are permitted. Third parties may pierce the veil of
LLC liability in provisions provided in laws governing
corporations. Voting and distribution rights are pro-
portionate with the contributions of members by de-
fault.
COLORADO: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
BUSINESS LAW—LIMITED LIABILITY COMPANIES
110 GALE ENCYCLOPEDIA OF EVERYDAY LAW
are permitted. Third parties may pierce the veil of
LLC liability using the same standards as corporate
laws. Distributions are made as agreed by all of the
members by default.
CONNECTICUT: Articles of organization are filed
with the office of Secretary of State. Single member
LLCs are permitted. Voting rights are equal among
members by default. Distributions are made based
on the value of contributions by each member by de-
fault.
DELAWARE: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
are permitted. Voting rights are equal among mem-
bers by default. Distributions are proportionate with
the contributions of members by default.
FLORIDA: Articles of organization are filed with the
Department of State. Single member LLCs are per-
mitted. Under 1999 amendments, the corporate veil
piercing doctrine is applied to LLCs. Voting and dis-
tribution rights are proportionate with the capital ac-
counts of the members by default.
GEORGIA: Articles of organization are filed with the
office of Secretary of State. Single member LLCs are
permitted. Voting and distributions rights are equal
among members by default.
HAWAII: Hawaii adopted the Uniform Limited Liabili-
ty Company Act in 1999. Articles of organization are
filed with the office of Secretary of State. Single mem-
ber LLCs are permitted. Voting and distribution
rights are equal among members by default.
IDAHO: Articles of organization are filed with the of-
fice of Secretary of State. Single member LLCs are
permitted. Voting and distribution rights are equal
among members by default.
ILLINOIS: Illinois adopted the Uniform Limited Lia-
bility Company Act in 1997. Articles of organization
are filed with the office of Secretary of State. Single
member LLCs are permitted. The corporate veil
piercing doctrine is applied to LLCs by STATUTE. Vot-
ing and distribution rights are equal among members
by default.
INDIANA: Articles of organization are filed with the
office of Secretary of State. Single member LLCs are
permitted. Voting rights are equal among members
by default. Distribution rights are proportionate with
the value of the contributions by default.
IOWA: Articles of organization are filed with the of-
fice of Secretary of State. Single member LLCs are not
permitted. Voting and distribution rights are propor-
tionate with the value of capital contributions by de-
fault.
KANSAS: Articles of organization are filed with the of-
fice of Secretary of State. Single member LLCs are
permitted. Distribution rights are proportionate with
the value of capital contributions by default.
KENTUCKY: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
are permitted. Voting rights are equal among mem-
bers by default. Distribution rights are proportionate
with the value of capital contributions by default.
LOUISIANA: Articles of organization are filed with the
office of Secretary of State. Single member LLCs are
not permitted. Voting and distribution right are
equal among members by default.
MAINE: Articles of organization are filed with the of-
fice of Secretary of State. Single member LLCs are
permitted. The corporate veil piercing doctrine is ap-
plied to LLCs by statute. Distribution rights are equal
among members by default.
MARYLAND: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
are permitted. Voting rights are proportionate with
members’ interests in profits by default. Distribution
rights are proportionate with rights to share in prof-
its by default.
MASSACHUSETTS: Articles of organization are filed
with the office of Secretary of State. Single member
LLCs are not permitted. The decision of members
owning more than 50 percent of unreturned contri-
butions controls many of the actions of the LLC. Dis-
tribution rights are proportionate with the value of
capital contributions by default.
MICHIGAN: Articles of organization are filed with the
chief officer of the Department of Commerce. Single
member LLCs are not permitted. Voting and distribu-
tion rights are proportionate with the value of the
capital contributions by default.
MINNESOTA: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
are permitted. Voting and distribution rights are pro-
portionate with the value of the capital contributions
by default.
MISSISSIPPI: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
are permitted. Voting rights are equal among mem-
bers by default. Distribution rights are proportionate
with the value of capital contributions by default.
BUSINESS LAW—LIMITED LIABILITY COMPANIES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 111
MISSOURI: Articles of organization are filed with the
office of Secretary of State. Single member LLCs are
permitted. Voting rights are equal among members
by default. Distribution rights are proportionate with
the value of capital contributions by default until all
members have received the value of their contribu-
tions. Once all members have received their contri-
butions, remaining distributions are divided equally.
MONTANA: Montana adopted the Uniform Limited
Liability Company Act in 1999. The ability to pierce
the veil of an LLC is restricted considerably by stat-
ute. Distribution rights are proportionate with the
value of capital contributions by default.
NEBRASKA: Articles of organization are filed with the
office of Secretary of State. Single member LLCs are
permitted. Voting rights are proportionate with the
value of capital contributions by default.
NEVADA: Articles of organization are filed with the
office of Secretary of State. Single member LLCs are
permitted. Voting rights are proportionate with the
value of capital contributions by default.
NEW HAMPSHIRE: Articles of organization are filed
with the office of Secretary of State. Single member
LLCs are not permitted. Voting rights are equal
among members by default. Distribution rights are
proportionate with the value of capital contributions
by default.
NEW JERSEY: Parties file a certificate of formation
with the office of Secretary of State. Single member
LLCs are permitted. Voting and distribution rights
are proportionate with the value of capital contribu-
tions by default.
NEW MEXICO: Articles of organization are filed with
the state corporation commission. Single member
LLCs are permitted. Voting and distribution rights
are proportionate with the value of capital contribu-
tions by default.
NEW YORK: Articles of organization are filed with the
office of Secretary of State. Single member LLCs are
permitted. Distribution rights are proportionate with
the value of capital contributions. Voting rights are
proportionate with members’ rights to share profits.
NORTH CAROLINA: Articles of organization are filed
with the office of Secretary of State. Single member
LLCs are permitted.
NORTH DAKOTA: Articles of organization are filed
with the office of Secretary of State. Single member
LLCs are permitted. The corporate veil piercing doc-
trine is applied to LLCs by statute. Voting rights are
proportionate with the value of capital contributions
by default.
OHIO: Articles of organization are filed with the of-
fice of Secretary of State. Single member LLCs are
permitted. Distribution rights are proportionate with
the value of capital contributions by default.
OKLAHOMA: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
are permitted. Voting and distribution rights are pro-
portionate with the value of capital contributions by
default.
OREGON: Articles of organization are filed with the
office of Secretary of State. Single member LLCs are
permitted. Voting rights are equal among members
by default. Distribution rights are proportionate with
members’ shares by default.
PENNSYLVANIA: Articles of organization are filed
with the Department of State. Single member LLCs
are permitted. Voting and distribution rights are
equal among members by default.
RHODE ISLAND: Articles of organization are filed
with the office of Secretary of State. Single member
LLCs are permitted. Voting and distribution rights
are proportionate with the value of capital contribu-
tions by default.
SOUTH CAROLINA: South Carolina adopted the Uni-
form Limited Liability Company Act in 1996. Articles
of organization are filed with the office of secretary
of state. Single member LLCs are not permitted. Vot-
ing and distribution rights are equal among members
by default.
SOUTH DAKOTA: South Dakota adopted the Uni-
form Limited Liability Company Act in 1998. Articles
of organization are filed with the office of Secretary
of State. Single member LLCs are not permitted. Vot-
ing and distribution rights are equal among members
by default.
TENNESSEE: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
are permitted. Voting and distribution rights are
equal among members by default.
TEXAS: Articles of organization are filed with the of-
fice of Secretary of State. Single member LLCs are
permitted. Distributions rights are proportionate
with the value of capital contributions by default.
BUSINESS LAW—LIMITED LIABILITY COMPANIES
112 GALE ENCYCLOPEDIA OF EVERYDAY LAW
UTAH: Articles of organization are filed with the Divi-
sion of Corporations and COMMERCIAL CODE of the
Department of Commerce. Single member LLCs are
permitted. Voting and distribution rights are propor-
tionate with the value of capital contributions by de-
fault.
VERMONT: Vermont adopted the Uniform Limited
Liability Company Act in 1996. Articles of organiza-
tion are filed with the office of Secretary of State. Sin-
gle member LLCs are permitted. Voting and distribu-
tion rights are equal among members by default.
VIRGINIA: Articles of organization are filed with the
State Corporation Commission. Single member LLCs
are permitted. Voting and distribution rights are pro-
portionate with the value of capital contributions by
default.
WASHINGTON: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
are permitted. The corporate veil piercing doctrine
is applied to LLCs by statute. The decision of mem-
bers owning more than 50 percent of unreturned
contributions controls many of the actions of the
LLC. Distribution rights are proportionate with the
value of capital contributions by default.
WEST VIRGINIA: West Virginia adopted the Uniform
Limited Liability Company Act in 1996. Single mem-
ber LLCs are not permitted. Articles of organization
are filed with the office of Secretary of State. Voting
and distribution rights are equal among members by
default.
WISCONSIN: Articles of organization are filed with
the office of Secretary of State. Single member LLCs
are permitted. The corporate veil piercing doctrine
is applied to LLCs by statute. The decision of mem-
bers owning more than 50 percent of unreturned
contributions controls many of the actions of the
LLC. Distribution rights are proportionate with the
value of capital contributions by default.
WYOMING: Articles of organization are filed with the
office of Secretary of State. Single member LLCs are
not permitted. Voting and distribution rights are pro-
portionate with the value of capital contributions by
default.
Additional Resources
Agency, Partnership, and the LLC in a Nutshell. Hayes, J.
Dennis, West Group, 2001.
Limited Liability Companies: A State by State Guide to Law
and Practice. Callison, J. William, and, Maureen A. Sulli-
van West Group, 2001.
Limited Liability Company Handbook. Sargent, Mark A.,
and Walter D. Schwidetzky, West Group, 2001.
Uniform Limited Liability Company Act. National Confer-
ence of Commissioners on Uniform State Laws, 1996.
Available at http://www.law.upenn.edu/bll/ulc/fnact99/
1990s/ullca96.htm.
Your Limited Liability Company: An Operating Manual.
Mancuso, Anthony, Nolo Press, 1999.
Organizations
Council of Better Business Bureaus (CBBB)
4200 Wilson Blvd., Suite 800
Arlington, VA 22203-1838 USA
Phone: (703) 276-0100
Fax: (703) 525-8277
URL: http://www.bbb.org/
National Conference of Commissioners on
Uniform State Laws (NCCUSL)
211 E. Ontario Street, Suite 1300
Chicago, IL 60611 USA
Phone: (312) 915-0195
Fax: (312) 915-0187
E-Mail: nccusl@nccusl.org
URL: http://www.nccusl.org/
Small Business Advancement National
Center (SBANC)
University of Central Arkansas
College of Business Administration
UCA Box 5018
201 Donaghey Avenue
Conway, AR 72053-0001 USA
Phone: (501) 450-5300
Fax: (501) 450-5360
URL: http://www.saber.uca.edu/
United States Chamber of Commerce
1615 H Street, NW
Washington, DC 20062-2000 USA
Phone: (202) 659-6000
E-Mail: custsvc@uschamber.com
URL: http://www.uschamber.com
BUSINESS LAW—LIMITED LIABILITY COMPANIES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 113
This Page Intentionally Left Blank
BUSINESS LAW
PARTNERSHIPS
Sections within this essay
• Background
• Forming and Managing a General Partner-
ship
- Characteristics of a General Partner-
ship
- Consent and the Partnership Agree-
ment
- Profit Sharing
- Loss Sharing
- Ownership and Management
• Liability and Duties of Partners in a General
Partnership
- Partner as an Agent of a Partnership
- Tort Liability to Third Parties
- Contract Liability to Third Parties
- Tax Liability of Partners and Partner-
ships
- Ownership of Property
• Duties of the Partners
- Duty of Loyalty
- Duty of Care
• Dissociation and Dissolution
• State Laws Governing Partnerships
• Additional Resources
Background
When two or more people carry on a business for
profit, the law recognizes the existence of a general
partnership. Unlike CORPORATIONS, limited liability
companies, limited partnerships, and limited liability
partnerships, owners of a business do not need to
follow specific formalities to form a general partner-
ship. At the same time, however, partners are not
protected from liability for the business’ debts. Sole
proprietorships and general partnerships are consid-
ered the ‘‘default’’ forms of business when an indi-
vidual or more than one individual establish a busi-
ness, since one form of business entity or the other
is generally established if the parties do not choose
an alternate form.
Partnerships are governed in the vast majority of
states by one of the versions of the Uniform Partner-
ship Act (UPA), which was originally drafted by the
Uniform Law Commissioners in 1914. Prior to 1994,
every state, with the exception of Louisiana, adopted
the UPA. The National Conference of Commissioners
on Uniform State Laws significantly revised the UPA
in 1994, with subsequent modifications in 1995,
1996, and 1997. The majority of states have adopted
the 1997 version of the act, which is generally re-
ferred to as the Revised Uniform Partnership Act
(RUPA). The RUPA revised the UPA in several key
areas, though many of the basic rules governing part-
nerships did not change from the older law to the
new law.
The UPA and RUPA, in many ways, provide ‘‘de-
fault’’ rules that govern general partnerships. That is,
the rules in the UPA and RUPA govern the partner-
ship, unless the partners agree otherwise. Thus, each
partner generally has a right to manage the partner-
ship that is equal to the rights of other partners. Simi-
larly, partners can agree how they will share profits,
how they will contribute to pay for losses, how they
will divide the labor, and how the partnership will
GALE ENCYCLOPEDIA OF EVERYDAY LAW 115
DISSOLVE when the partnership ends. Parties cannot,
however, agree to shield personal liability from one
or more of the partners. If a partner or partners want
to avoid personal liability for the debts of the partner-
ship, they will need to form one of the business enti-
ties that provide limited liability.
Forming and Managing a General
Partnership
Several of the rules related to general partner-
ships vary between the UPA and the RUPA. Individu-
als who are forming a general partnership or are con-
cerned about management issues should consult
their state statutes to determine which law is in effect
in that state.
Characteristics of a General Partnership
A general partnership must consist of two or more
individuals or entities, including another partnership
or corporation. Thus, it is possible that two very large
corporations could form a partnership between the
two entities, though in the modern business world,
when large entities agree to form a new business en-
tity between them, they most often form some kind
of limited liability entity. In order to form a general
partnership, the business must be unincorporated
and intended to make a profit. The ‘‘unincorporat-
ed’’ requirement is obvious; an entity that has com-
plied with the formalities to form a corporation can-
not be a partnership. Partnership law is limited to
entities organized to make a profit, since partnership
law is a subcategory of commercial law. Other busi-
ness entities, such as corporations, do not need to
be formed to seek a profit. Agreeing to share a profit
creates a rebuttable presumption under the RUPA
that a partnership exists.
Generally, each partner in a partnership has
something to offer the business, including labor,
ideas, money, and/or property. Each of the partners
in a general partnership co-owns the business and
has a right to manage the business with other part-
ners. This right, however, can be modified by agree-
ment of the partners. Similarly, partners have a gen-
eral right to share profits and contribute to pay for
losses, though either of these can be modified by
agreement of the parties.
Many partnerships are formed when one or more
partners agree to provide money, property, and
other types of capital to the business (‘‘capital part-
ners’’), while one or more of the other partners
agree to provide work and other labor expertise
(‘‘labor partners’’). For example, assume that two
people agree to form a business to build custom fur-
niture. One partner agrees to provide the work facili-
ty and office and also agrees to supply $100,000 to
finance the business. The other partner, who is an
expert in building furniture, agrees to build all of the
furniture and manage the business. The first partner
is the capital partner, while the latter is the labor
partner. This general partnership can be beneficial to
both parties if the business is successful but can
cause significant problems if the business fails. Many
of these problems are cause for disputes over which
party should bear the burden of the losses suffered
by the partnership.
Partnerships are generally categorized in three
types, which are defined by the agreement of the
partners. In a partnership at will, every partner has
the right to end the partnership, subject to some re-
strictions. In a partnership for a term, the partners’
agreement determines the time when a partnership
will end. In a partnership for a particular undertak-
ing, the partners’ agreement indicates that comple-
tion of a particular task or goal will cause the partner-
ship to end.
Consent and the Partnership Agreement
As noted above, forming a partnership requires
few specific formalities, such as a written agreement
or registration with a state agency. Nevertheless, all
parties that are considered partners must consent to
be such. The consent may be express, such as sign-
ing a written partnership agreement or implied by
the conduct of the parties. Parties do not need to
agree specifically to form a ‘‘partnership;’’ rather,
their agreement or conduct must be such that they
agree to run a business for profit. Even if the parties
agree that their business will not be labeled a part-
nership, the business may be found to be one if it
meets the definition of a partnership.
If two or more individuals enter a partnership
without a partnership agreement, problems are like-
ly to arise. The DEFAULT rules found in the UPA and
the RUPA may not be sufficient for the parties based
on their wants and needs when they formed the busi-
ness. Similarly, the rules in the UPA and RUPA may
not reflect the understanding of the parties when
they entered into the business. Since all partners are
liable for the debts of the partnership, if a partner-
ship is formed inadvertently, it may cause significant
problems for the partner who was not aware of the
legal consequences of his or her decision. Should an
individual wish to enter into a business that has not
BUSINESS LAW—PARTNERSHIPS
116 GALE ENCYCLOPEDIA OF EVERYDAY LAW
been registered as a limited liability entity, he or she
should be sure to demand the drafting of a written
partnership agreement so that the understanding
and agreement of the parties can be reflected more
clearly in a document.
Profit Sharing
Agreeing to share profits is a precondition for the
formation of a partnership. Sharing profits is not the
same as sharing revenues. Revenues refer to all of the
money received by a business, including income, re-
ceipts, or proceeds. Profits are the amount remain-
ing of the revenue after expenses incurred by the
business are subtracted. If one party agrees to share
revenues with another party, but the agreement
makes not stipulation for profits, then a partnership
has not been formed. The focus on profits requires
the partners to pay attention to the management of
the entire business, not only the amount of money
taken in by the business. By comparison, a person
who receives revenues, but not profits, is much more
likely to focus on the sales of a business but not the
costs in doing business.
Partners do not need to share profits equally.
Under both the UPA and the RUPA, partners can
agree to the division of profits made by a business.
In a situation where there is a capital partner and a
labor partner, the partnership agreement will most
likely include a salary for the labor partner, with the
capital partner receiving the profits.
Loss Sharing
An agreement to share losses in all jurisdictions is
strong EVIDENCE that a partnership exists. Though
neither the UPA nor the RUPA expressly requires an
agreement to share losses to find that a partnership
exists, some jurisdictions require a finding of such an
agreement as a prerequisite for a finding that a part-
nership has been formed. Under both the UPA and
the RUPA, the definition of partnership does not in-
clude sharing losses but rather requires that losses
be shared in the same proportion as profits. Like
many other rules in the UPA and the RUPA, the par-
ties can agree otherwise.
Ownership and Management
All partners in a general partnership are consid-
ered co-owners. By default, partners also have equal
rights to manage the partnership. If an agreement
contemplates joint ownership of a business for prof-
it, as well as joint decision-making regarding the part-
nership’s business, then the likelihood increases that
a partnership exists. More difficult questions are
raised when co-ownership and co-management are
considered in the context of control of the partner-
ship. For example, under the default rules in the UPA
and RUPA, both a capital partner and a labor partner
have equal rights to manage the partnership, even if
the labor partner is much more qualified to manage
the business. Similarly, all partners have the authori-
ty to bind a partnership by transacting partnership
business. In almost all situations, it is beneficial to in-
clude management and control provisions in a part-
nership agreement to avoid conflicts.
Liability and Duties of Partners in a
General Partnership
Partner as an Agent of a Partnership
Under both the UPA and the RUPA, all partners
serve as general agents of the partnership. Accord-
ingly, partners may bind the partnership through
their actions. They often have the actual authority to
conduct partnership business, though the extent of
this authority often focuses on the language included
in a partnership agreement. Authority may be im-
plied through the action or inaction of other part-
ners in the management of the business. For exam-
ple, if one partner has entered into contracts on
behalf of the partnership in the past, and none of the
partners has objected (assuming they have knowl-
edge of the transaction), the partner most likely has
implied authority to enter into the contract.
Tort Liability to Third Parties
Since partners are considered agents of the part-
nership, a partner’s wrongful act or omission can
bind the partnership if the wrongdoing partner has
acted within the ordinary course of the partnership’s
business. Such liability is referred to as vicarious lia-
bility, a term that is also used when a business is lia-
ble for the acts of an employee acting within the
scope of his or her employment. Moreover, partners
in a partnership generally are jointly and severally lia-
ble for torts charged against the partnership. Thus,
any or all of the partners in a partnership can be sued
individually for the entire amount of the injury
caused by the partner. For example, if two lawyers
form a general partnership, and one lawyer is liable
for MALPRACTICE, then the person injured by the mal-
practice may sue the partnership, the lawyer who
committed malpractice, and/or the other lawyer in
the partnership. In this situation, the person who is
injured could chose to sue only the lawyer who did
not commit malpractice, since that lawyer is jointly
and severally liable for the torts of the other partner
acting in the partnership’s business.
BUSINESS LAW—PARTNERSHIPS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 117
Well-planned businesses will usually avoid the
seemingly harsh consequences caused by joint and
several liability. One of the more obvious solutions
is for the partnership to form a limited liability entity,
such as a LIMITED LIABILITY PARTNERSHIP. Other solu-
tions may be provided in a partnership agreement,
such as the inclusion of a provision requiring the
wrongdoing partner to indemnify the other partners
if the other partners are vicariously liable for the torts
of the wrongdoing partner.
Contract Liability to Third Parties
Under the UPA, partners are jointly liable for con-
tractual liability of the partnership. The RUPA modi-
fies this provision so that partners are jointly and sev-
erally liable for the contractual liability of the
partnership. The difference between the two types
of liability is really procedural. If partners are jointly
liable, all of the partners must be sued at the same
time, and omission of a partner means that the suit
must be dropped. By comparison, if partners are
jointly and severally liable, suits may proceed against
individual partners even if some partners are omitted
from the suit.
Tax Liability of Partners and Partnerships
One of the most practical benefits of forming a
partnership, as opposed to a corporation, is the tax
treatment of partnerships by the federal government
in the Internal Revenue Code. Owners of a corpora-
tion, in effect, pay double taxes. The corporation it-
self must pay taxes on business income. The money,
which has already been taxed, is eventually distribut-
ed to pay salaries, dividends, and other forms of in-
come to those involved in the corporation. These in-
dividuals must pay tax on the money received, even
though the corporation was initially taxed. Partner-
ships, by comparison, are treated as so-called ‘‘pass-
through’’ entities. The partnership itself does not
pay taxes. The partnership’s income ‘‘passes
through’’ the partnership and is distributed to the
partners. When the partners pay taxes on their in-
come, this money has not yet been taxed.
Ownership of Property
Since partners often contribute property for the
use of the partnership, the question of ownership of
this property is sometimes difficult. For example, if
a partner purchases PERSONAL PROPERTY with his own
money, but the property is used exclusively by the
partnership, then it could be questionable whether
this property is the partner’s separate property or
whether it is the partnership’s property. The UPA
creates a presumption that property acquired with
partnership funds is partnership property, unless the
partners intend otherwise. The RUPA extends this
presumption and adds a presumption that if one or
more partners purchase property in their own name
and without use of partnership funds, the property
is considered the separate property of the partner or
partners. This is true even if the property is used for
partnership purposes.
Both the partnership and individual partners can
hold legal title to real property, and both the UPA
and the RUPA contain provisions prescribing the
conveyance of real property by partners or the part-
nership. Under the RUPA, partners and partnerships
have the option of filing and recording a statement
indicating the authority of the partners to transfer
real property in the name of the partnership.
Duties of the Partners
Partners in a partnership owe each other certain
FIDUCIARY duties. One of the more significant
changes between the UPA and the RUPA was the clar-
ification of fiduciary duties in the RUPA. Under the
revised act, partners owe each other the duty of loy-
alty and the duty of care. The RUPA restricts the abili-
ty of partners to waive these fiduciary duties.
Duty of Loyalty
The duty of loyalty refers to the duty of a partner
to refrain from competing with the partnership in an-
other endeavor or profiting individually from a trans-
action related to the partnership. This duty does not
mean that a partner cannot further his or her own in-
terests; a partner may not further his or her own in-
terests to the detriment of the partnership. Applica-
tion of this duty may arise when one of the partners
owns several businesses, and the potential for com-
petition between a separate business and the part-
nership arises. Another situation occurs when one
the partners wants to leave the partnership. It is not
uncommon that the partner may take steps to set up
a separate business, and establishing the new busi-
ness may conflict with the interests of the partner-
ship.
Duty of Care
The duty of care does not refer to acts of mere
NEGLIGENCE by a partner. For example, if a partner
unintentionally makes a bad business decision, his or
her negligence will not necessarily violate the duty
of care. On the other hand, the duty of care pro-
scribes GROSS NEGLIGENCE, recklessness, intentional
misconduct, or knowing violation of the law on the
BUSINESS LAW—PARTNERSHIPS
118 GALE ENCYCLOPEDIA OF EVERYDAY LAW
part of each of the partners. Though partners cannot
waive the duty of care under the RUPA, partners can
hold themselves to a higher standard of care, includ-
ing ordinary negligence.
Dissociation and Dissolution
The RUPA made other significant changes with re-
spect to the DISSOLUTION of a partnership and wind-
ing up of partnership affairs. Under the UPA, if a part-
ner withdraws from the partnership, an event occurs
that ends the partnership, the partners agree to end
the partnership, or any of a number of situations oc-
curs, the partnership dissolves. When dissolution oc-
curs, the partnership’s business generally ends, the
affairs of the business wind up, and partnership
property is sold. Partnership agreements, even be-
fore the enactment of the RUPA, often provide a
method whereby the withdrawing partner’s interests
are purchased and the partnership continued. In the
absence of such an agreement, the remaining part-
ners may continue the partnership’s business, but
the resulting business is considered a completely
new partnership.
The RUPA altered this situation, providing that
when certain events occur, such as a partner’s with-
drawal from the partnership, the partnership is not
necessarily dissolved. The RUPA introduced dissocia-
tion, whereby a partner can be dissociated from a
partnership without the partnership ending. If a part-
ner dissociates from a partnership, the partnership
will not necessarily dissolve. The remaining partners
can instead purchase the interests of the dissociating
partner and continue partnership business.
When a partnership is dissolved, it enters into a
stage called winding up. Both the UPA and the RUPA
provide rather detailed provisions for winding up the
affairs of the partnership. One restriction is that part-
ners who have wrongfully caused the dissolution of
the partnership or have wrongfully dissociated from
the partnership cannot participate in the winding up
process. The most significant part of the winding up
process is the LIQUIDATION of partnership assets and
payment of partnership creditors. When the assets
are liquidated, creditors who are not also partners
are generally paid first. If a partner is also a CREDITOR
of the partnership, he or she is then reimbursed.
Once each of the creditors is reimbursed, partners
may recover their capital contributions. Finally, if as-
sets remain, the partners will receive their share, in
accordance with a partnership agreement or accord-
ing to the provisions of the UPA or the RUPA.
State Laws Governing Partnerships
The majority of states have adopted the Revised
Uniform Partnership Act, though some have retained
the Uniform Partnership Act. Some states have modi-
fied certain provisions of their versions of the
UNIFORM ACTS, so researchers should be sure to
check their states’ versions of the act to determine
which provisions may differ from the uniform law.
The only state that has not adopted the uniform law
is Louisiana.
ALABAMA: Adopted the Revised Uniform Partnership
Act in 1998. Previously adopted the Uniform Partner-
ship Act in 1972.
ALASKA: Adopted the Uniform Partnership Act in
1917.
ARIZONA: Adopted the Revised Uniform Partnership
Act in 1996. Previously adopted the Uniform Partner-
ship Act in 1954.
CALIFORNIA: Adopted the Revised Uniform Partner-
ship Act in 1996. Previously adopted the Uniform
Partnership Act.
COLORADO: Adopted the Revised Uniform Partner-
ship Act in 1997. Previously adopted the Uniform
Partnership Act in 1931.
CONNECTICUT: Adopted the Revised Uniform Part-
nership Act in 1995. Previously adopted the Uniform
Partnership Act in 1961.
DELAWARE: Adopted the Revised Uniform Partner-
ship Act in 1999. Previously adopted the Uniform
Partnership Act in 1947.
DISTRICT OF COLUMBIA: Adopted the Revised Uni-
form Partnership Act in 1997. Previously adopted the
Uniform Partnership Act in 1962.
FLORIDA: Adopted the Revised Uniform Partnership
Act in 1995. Previously adopted the Uniform Partner-
ship Act in 1973.
GEORGIA: Adopted the Uniform Partnership Act.
HAWAII: Adopted the Revised Uniform Partnership
Act in 1999. Previously adopted the Uniform Partner-
ship Act in 1972.
IDAHO: Adopted the Revised Uniform Partnership
Act in 1998. Previously adopted the Uniform Partner-
ship Act in 1919.
ILLINOIS: Adopted the Uniform Partnership Act in
1917.
BUSINESS LAW—PARTNERSHIPS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 119
INDIANA: Adopted the Uniform Partnership Act in
1949.
IOWA: Adopted the Revised Uniform Partnership Act
in 1998. Previously adopted the Uniform Partnership
Act in 1971.
KANSAS: Adopted the Revised Uniform Partnership
Act in 1998. Previously adopted the Uniform Partner-
ship Act in 1972.
LOUISIANA: Louisiana is the only state that has
adopted neither the Uniform Partnership Act nor the
Revised Uniform Partnership Act. Though many of
the provisions of the Louisiana law governing part-
nership are similar to the UPA and RUPA, individuals
in Louisiana should consult the Louisiana Civil Code
to determine the law of Louisiana with respect to
partnerships.
MAINE: Adopted the Uniform Partnership Act in
1973.
MARYLAND: Adopted the Revised Uniform Partner-
ship Act in 1997. Previously adopted the Uniform
Partnership Act in 1916.
MASSACHUSETTS: Adopted the Uniform Partner-
ship Act in 1922.
MICHIGAN: Adopted the Uniform Partnership Act in
1917.
MINNESOTA: Adopted the Revised Uniform Partner-
ship Act in 1997. Previously adopted the Uniform
Partnership Act in 1921.
MISSISSIPPI: Adopted the Uniform Partnership Act
in 1976.
MISSOURI: Adopted the Uniform Partnership Act in
1949.
MONTANA: Adopted the Revised Uniform Partner-
ship Act in 1997. Previously adopted the Uniform
Partnership Act in 1947.
NEBRASKA: Adopted the Revised Uniform Partner-
ship Act in 1997. Previously adopted the Uniform
Partnership Act in 1943.
NEVADA: Adopted the Uniform Partnership Act in
1931.
NEW HAMPSHIRE: Adopted the Uniform Partnership
Act in 1973.
NEW JERSEY: Adopted the Revised Uniform Partner-
ship Act in 2001. Previously adopted the Uniform
Partnership Act in 1919.
NEW MEXICO: Adopted the Revised Uniform Part-
nership Act in 1997. Previously adopted the Uniform
Partnership Act in 1947.
NEW YORK: Adopted the Uniform Partnership Act in
1919.
NORTH CAROLINA: Adopted the Uniform Partner-
ship Act in 1941.
NORTH DAKOTA: Adopted the Revised Uniform
Partnership Act in 1997. Previously adopted the Uni-
form Partnership Act in 1959.
OHIO: Adopted the Uniform Partnership Act in 1949.
OKLAHOMA: Adopted the Revised Uniform Partner-
ship Act in 1997. Previously adopted the Uniform
Partnership Act in 1959.
OREGON: Adopted the Revised Uniform Partnership
Act in 1997. Previously adopted the Uniform Partner-
ship Act in 1939.
PENNSYLVANIA: Adopted the Uniform Partnership
Act in 1915.
RHODE ISLAND: Adopted the Uniform Partnership
Act in 1957.
SOUTH CAROLINA: Adopted the Uniform Partner-
ship Act in 1950.
SOUTH DAKOTA: Adopted the Revised Uniform
Partnership Act in 2001. Previously adopted the Uni-
form Partnership Act in 1923.
TENNESSEE: Adopted the Revised Uniform Partner-
ship Act in 2001. Previously adopted the Uniform
Partnership Act in 1917.
TEXAS: Adopted the Revised Uniform Partnership
Act in 1998. Previously adopted the Uniform Partner-
ship Act in 1961.
UTAH: Adopted the Uniform Partnership Act in 1921.
VERMONT: Adopted the Revised Uniform Partner-
ship Act in 1998. Previously adopted the Uniform
Partnership Act in 1941.
VIRGINIA: Adopted the Revised Uniform Partnership
Act in 1996. Previously adopted the Uniform Partner-
ship Act in 1918.
WASHINGTON: Adopted the Revised Uniform Part-
nership Act in 1998. Previously adopted the Uniform
Partnership Act in 1945.
WEST VIRGINIA: Adopted the Revised Uniform Part-
nership Act in 1995. Previously adopted the Uniform
Partnership Act in 1953.
BUSINESS LAW—PARTNERSHIPS
120 GALE ENCYCLOPEDIA OF EVERYDAY LAW
WISCONSIN: Adopted the Uniform Partnership Act
in 1915.
WYOMING: Adopted the Revised Uniform Partner-
ship Act in 1993. Previously adopted the Uniform
Partnership Act in 1917.
Additional Resources
Agency and Partnerships: Examples and Explanations.
Kleinberger, Daniel S., Aspen Law and Business, 1995.
Agency, Partnership, and the LLC in a Nutshell. Hayes, J.
Dennis, West Group, 2001.
Partnerships: Laws of the United States. Sitarz, Daniel,
Nova Publishing Company, 1999.
Partnership Laws of the United States: Introduction and
List of Articles. USLaw.com, 1999. Available at http://
www.uslaw.com/library/article/noparIntro.html
Uniform Partnership Act. National Conference of Com-
missioners on Uniform State Laws, 1997. Available at
http://www.law.upenn.edu/bll/ulc/upa/upa1200.htm
Organizations
Council of Better Business Bureaus (CBBB)
4200 Wilson Blvd., Suite 800
Arlington, VA, VA 22203-1838 USA
Phone: (703) 276-0100
Fax: (703) 525-8277
URL: http://www.bbb.org/
National Conference of Commissioners on
Uniform State Laws (NCCUSL)
211 E. Ontario Street, Suite 1300
Chicago, IL, IL 60611 USA
Phone: (312) 915-0195
Fax: (312) 915-0187
E-Mail: nccusl@nccusl.org
URL: http://www.nccusl.org/
Small Business Advancement National
Center (SBANC)
University of Central Arkansas
College of Business Administration
UCA Box 5018
201 Donaghey Avenue
Conway, AR, AR 72053-0001 USA
Phone: (501) 450-5300
Fax: (501) 450-5360
URL: http://www.saber.uca.edu/
U. S. Chamber of Commerce
1615 H Street, NW
Washington, DC, DC 20062-2000 USA
Phone: (202) 659-6000
E-Mail: custsvc@uschamber.com
URL: http://www.uschamber.com
BUSINESS LAW—PARTNERSHIPS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 121
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BUSINESS LAW
SHAREHOLDER RIGHTS
Sections within this essay:
• Background
• Ownership of Stock
- Common Stock
- Preferred Stock
- Bonds and Debentures
• Shareholder Meetings and Voting Rights
• Shareholder Rights, Actions, and Liabilities
- Shareholder Direct Litigation
- Shareholder Derivative Litigation
- Shareholder Preemptive Rights
- Shareholder Liabilities
• Transfer of Stock Ownership
- Securities Laws
- Conversion Rights
- Redemption Rights
• Sharing Proceeds Upon Liquidation of Cor-
porate Assets
• State Laws Governing Shareholder Rights
• Additional Resources
Background
Investors who purchase CORPORATE stock enjoy a
number of rights pertaining to their ownership. Un-
like partnership law, where the owners of businesses
are also the primary managers of the businesses,
owners of a corporation generally do not run the
company. Shareholders in a corporation are shielded
from personal liability for the debts and obligations
of the corporation. However, shareholders can lose
their investments should the corporation fail.
Laws governing CORPORATIONS in the United
States are fairly standard from one state to the next.
The commissioners on uniform state laws drafted
the Uniform Business Corporations Act in 1928,
though only three states adopted this act. The Ameri-
can BAR ASSOCIATION in 1950 drafted the Model Busi-
ness Corporation Act, which subsequently has been
modified numerous times. The last major redrafting
occurred in 1984. Thirty-one states have adopted all
or a significant portion of the Model Act. Other states
have modified their own state corporation statutes
to contain sections similar to the Model Act. Dela-
ware’s corporation STATUTE is also significant, since
most large, public corporations are incorporated in
that state.
The rights of shareholders depend largely on pro-
visions in a corporation’s charter and by-laws. These
are the first documents which a shareholder should
consult when determining his or her rights in a cor-
poration. Shareholders also generally enjoy the fol-
lowing types of rights:
• Voting rights on issues that affect the corpo-
ration as a whole
• Rights related to the assets of the corpora-
tion
• Rights related to the transfer of stock
• Rights to receive dividends as declared by
the board of directors of the corporation
• Rights to inspect the records and books of
the corporation
• Rights to bring suit against the corporation
for wrongful acts by the directors and offi-
cers of the corporation
GALE ENCYCLOPEDIA OF EVERYDAY LAW 123
• Rights to share in the proceeds recovered
when the corporation liquidates its assets
Ownership of Stock
The two broad types of financing available to a
corporation include equity financing and debt fi-
nancing. Equity financing involves the issuance of
stock, which investors purchase and which represent
a share in the ownership of the corporation. The two
basic types of stock are COMMON STOCK and PREFERRED
STOCK. Debt financing involves a loan of money from
an investor to the corporation in exchange for debt
SECURITIES, such as a bond. Holders of debt securities
generally do not enjoy the same rights as sharehold-
ers in terms of voting rights, participating rights, or
other rights related to the ownership of stock.
Common Stock
The lowest level of stock in a corporation is com-
mon stock. The rights related to common stock de-
pend largely on the ARTICLES OF INCORPORATION and
by-laws of the corporation. In general, owners of
common stock have voting rights in a corporation as
well as rights to receive distributions of money from
the corporation (dividends). In a successful corpora-
tion, common stock ownership can be very lucrative.
However, if a corporation is unsuccessful, common
stock owners are usually the last in line to receive a
distribution of the corporation’s assets when the cor-
poration’s assets are liquidated.
State statutes often vary with respect to the
DEFAULT rights of common stock owners. The corpo-
ration may also issue multiple classes of common
stock, such as nonvoting common stock or common
stock with special DIVIDEND rights.
Preferred Stock
Unlike common stock, holders of preferred stock
are entitled to fixed dividends and fixed rights to re-
ceive a percentage of a corporation’s assets are liqui-
dated. With respect to the dividend rights, an exam-
ple of such stock would include a name such as ‘‘$20
preferred,’’ which means the shareholder has a right
to receive $20 in dividends per share before divi-
dends are paid to common stock owners.
It is noteworthy that the board of directors in a
corporation usually has the discretion to decide
whether dividends are issued in a given year. If divi-
dends are not distributed during one year, whether
preferred stock owners receive dividends in a subse-
quent year depends on whether the preferred stock
is cumulative or noncumulative. If the rights are cu-
mulative, the corporation must be dividends during
some subsequent year. If the rights are noncumula-
tive, the rights to receive dividends are lost if the cor-
poration does not issue dividends in a given year.
Preferred stock owners generally do not have the
same rights to vote as common stock owners. How-
ever, a corporation may grant voting rights and addi-
tional rights in its articles of incorporation or other
provisions. State statutes also provide some rights to
preferred stock owners by default.
Bonds and Debentures
Corporations may seek to borrow money in addi-
tion to (or in lieu of) issuing stock. One method for
borrowing money is to exchange the loan for a debt
security that can be traded on a public market.
BONDS are long-term debt securities that are secured
by corporate assets. Debentures are unsecured debt
securities. Owners of debt securities generally do not
enjoy the same types of rights are owners of stock.
However, a corporation may grant voting rights to
the owners of debt securities. These owners may also
have the right to redeem debt securities in exchange
for stock.
Shareholder Meetings and Voting Rights
Shareholders hold general meetings on an annual
basis or at fixed times according to the by-laws of the
corporation. The primary purpose of these meetings
is for shareholders to elect the directors of the cor-
poration, though shareholders may also vote on a
number of additional issues. Persons with authority
to do so may also call special meetings on matters
that require immediate attention, though only those
issues set forth in the notice of the special meeting
may be the subject of the vote.
A quorum must be present at the shareholder
meeting for a decision to be binding. The typical
quorum consists of more than half of the outstand-
ing shares of the corporation. This percentage may
be increased or decreased in the by-laws of the cor-
poration. Prior to each shareholder meeting, a list of
shareholders eligible to vote must be prepared.
Shareholders have the right to inspect the voting list
at any time.
Shareholders may appoint proxies to vote their
shares, which is common in publicly-held corpora-
tions. Most states prescribe few specific rules with re-
spect to the proxy appointment, other than the issue
BUSINESS LAW—SHAREHOLDER RIGHTS
124 GALE ENCYCLOPEDIA OF EVERYDAY LAW
of whether this appointment may be revoked. Proxy
appointments must be in writing, and the proxy does
not need to be a fellow shareholder. Since the rela-
tionship between the shareholder and the proxy is
one of principal and agent, the proxy must abide by
the instructions of the shareholder.
Shareholders by unanimous consent may conduct
business without holding a shareholder meeting.
Such actions are more common in closely held cor-
porations, where shareholder actions are typically
unanimous. In a larger, publicly held corporation,
such actions are much less practical, especially be-
cause decisions of the shareholders affect a larger
number of people.
Matters upon which shareholders vote, in addi-
tion to the election of the directors, depend on the
issues affecting the corporation. The following are
the most significant of these matters.
• Approval or disapproval of changes in the ar-
ticles of incorporation
• Approval or disapproval of a merger with an-
other corporation
• Approval or disapproval of the sale of sub-
stantially all of the corporation’s assets that
is not in the ordinary course of the corpora-
tion’s business
• Approval or disapproval of the voluntary
DISSOLUTION of the corporation
• Approval or disapproval of corporate trans-
actions where some directors have a conflict
of interest
• Approval or disapproval of amendments to
BYLAWS or articles of incorporation
• Make nonbinding recommendations about
the governance and management of the cor-
poration to the board of directors
Shareholder Rights, Actions, and
Liabilities
As noted above, many of the rights afforded to
shareholders are contained in each corporation’s ar-
ticles of incorporation or bylaws. It is also notewor-
thy that shareholders generally do not have the right
to vote on management issues that occur in the ordi-
nary course of the corporation’s business. Many deci-
sions of the corporation must be made by the board
of directors or officers of the corporation, and in
most cases, shareholders may not compel the board
or officers to take or refrain from taking any action.
Shareholder Direct Litigation
Shareholders can protect their ownership rights
in their shares by bringing a direct action against a
corporation. Such cases may involve contract rights
related to the shares; rights granted to the share-
holder in a statute; rights related to the recovery of
dividends; and rights to examine the books and re-
cords of a corporation. Some cases are not appropri-
ate for direct actions by a shareholder against a cor-
poration, however. For example, a shareholder may
not bring a direct action against a corporation by al-
leging that an officer has breached a FIDUCIARY duty
owed to the corporation. Such a case involves all
shareholders and is more appropriate as a derivative
action. By comparison, a shareholder may bring a di-
rect action if he or she has been prevented from vot-
ing his or her shares in a vote.
Shareholder Derivative Litigation
Shareholders may bring suit as representatives of
the corporation in a derivative action. Such an action
is designed to prevent wrongdoing by the officers or
directors of the corporation or to seek a remedy for
such wrongdoing. These suits are generally brought
when the corporation itself (through its officers and
directors) refuses to bring suit itself. A party bringing
a derivative suit acts as a representative of an appro-
priate class of shareholders, and in the action the
shareholders enforce claims that would be appropri-
ate between the corporation and the officers and di-
rectors of the corporation. For example, if the offi-
cers of the corporation have breached a fiduciary
duty owed to the corporation, shareholders may
bring a derivative action to protect the interests of
the corporation on behalf of the corporation. While
these actions in many cases protect the rights of the
corporation and shareholders of the corporation,
these actions are often controversial. Shareholders
should study the procedural and substantive provi-
sions of state statutes to determine whether the ac-
tion is appropriate and determine which formalities
should be followed with respect to these actions.
Shareholder Preemptive Rights
Corporations retain the right to issue new shares
of stock, which could dilute the ownership of exist-
ing stockholders. Existing shareholders often hold
preemptive rights, which allow the shareholders to
purchase these new shares of stock before they are
made available to the public. Thus, if a shareholder
owns 10 percent of a corporation, and the corpora-
tion issues new stock, the shareholder would own
less than 10 percent if he or she did not purchase
new stock. If the shareholder exercises preemptive
BUSINESS LAW—SHAREHOLDER RIGHTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 125
rights, he or she may purchase as many new shares
as necessary to retain that 10 percent interest.
Shareholder Liabilities
As the owners of a limited liability entity, share-
holders are generally shielded from personal liability
for claims against the corporation. Thus, if a corpora-
tion incurs a debt or obligation against it, creditors
cannot recover the personal assets of the sharehold-
ers. However, the average life of a corporation in the
United States is only seven years, and more than half
fail before seven years have elapsed. A shareholder
can lose his or her entire investment if the corpora-
tion fails.
Transfer of Stock Ownership
Securities Laws
Federal and state securities laws govern the distri-
bution and exchange of stock in a corporation. Many
of these laws are designed to avoid FRAUD by the cor-
poration to the detriment of prospective or existing
shareholders, so shareholders should consult rele-
vant securities laws if they believe they have been de-
frauded in the sale or exchange of stock. The sale
and exchange of stock through electronic media
have provided new methods for defrauding inves-
tors, and new securities laws have been enacted in
the past ten years to address these issues.
Conversion Rights
Owners of one type of stock may want, at some
point, to convert their stock to a different type of
stock in the same corporation, rather than sell the
stock outright. For example, an owner of preferred
nonvoting stock may want to own common stock
that has voting rights. If the shareholder has conver-
sion rights, he or she may convert the preferred
stock for the common stock. These rights can, and
often are, limited by the corporation.
Redemption Rights
Shareholders may also possess redemption rights,
which permit the shareholders to redeem their stock
to the corporation for a value specified in the articles
of incorporation or set by the board. In other words,
the shareholder can demand that the corporation re-
purchase the shareholder’s stock. This right may be
limited by the corporation.
Sharing Proceeds Upon Liquidation of
Corporate Assets
When a corporation dissolves, one of its first ac-
tions is the LIQUIDATION of corporate assets. Credi-
tors of the corporation are the first to be paid with
the funds received from the liquidation. Owners of
debt securities are also paid before shareholders.
Once these debts are paid, the remainder is paid to
the stockowners. Preferred stock is paid before com-
mon stock. Some preferred stock includes a liquida-
tion preference that fixes a price per share of pre-
ferred stock. If preferred stock includes this
preference, it must be paid before the corporation
pays any amount to the common stock. Common
stock owners do not have any special liquidation
rights and will receive assets on dissolution only after
senior claims have been paid.
State Laws Governing Shareholder Rights
Since the majority of states have adopted the
Model Business Corporation Act, shareholder rights
are generally consistent from one state to the next.
State statutes should be consulted to determine
whether an individual state has granted any specific
rights to shareholders of businesses incorporated in
that state.
ALABAMA: Alabama statute is based on the Model
Business Corporation Act. Shareholders are granted
preemptive rights in the statute. Shareholders may
bring derivative actions for fraud, dishonesty, or
gross abuse on the part of the directors. Holders of
10 percent of the votes may call a special meeting.
ALASKA: A shareholder may bring a derivative action
on behalf of the corporation. Each record sharehold-
er is entitled to written notice of meetings.
ARIZONA: Arizona statute is based on the Model
Business Corporation Act. Corporations must pro-
vide shareholders with a stock certificate upon re-
quest. Shareholders may petition for a special meet-
ing.
ARKANSAS: Arkansas statute is based on the Model
Business Corporation Act. Shareholders are entitled
to notice of annual and special shareholder meet-
ings. The statute grants preemptive rights to share-
holders.
CALIFORNIA: The statute provides special rights to
shareholders who dissent to corporate reorganiza-
tion or merger.
COLORADO: Colorado statute is based on the Model
Business Corporation Act. Statute provides special
rules regarding entitlement to voting with respect to
fractional shares. The statute provides specific rules
regarding derivative actions.
BUSINESS LAW—SHAREHOLDER RIGHTS
126 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CONNECTICUT: The articles of incorporation of a
corporation must provide preemptive rights. The
statute governs derivative suits brought by share-
holders.
DELAWARE: The statute provides specific rules re-
garding derivative actions. The statute prescribes
specific rules shareholder meetings and voting, in-
cluding voting agreements and voting by proxy.
DISTRICT OF COLUMBIA: The statute is based on
the Model Business Corporation Act. The statute per-
mits derivative actions brought by shareholders, and
prescribes specific rules for such actions.
FLORIDA: Florida statute is based on the Model Busi-
ness Corporation Act. The statute permits derivative
actions and prescribes specific rules for such actions.
The statute prescribes specific rules for voting by
shareholders, including voting trusts and voting
agreements.
GEORGIA: Georgia statute is based on the Model
Business Corporation Act. The statute does not pro-
vide preemptive rights to shareholders, except those
in close corporations or in those corporations in ex-
istence prior to July 1, 1989. The statute permits de-
rivative actions by shareholders.
HAWAII: Hawaii statute is based on the Model Busi-
ness Corporation Act. The statute provides preemp-
tive rights to shareholders. The statute permits deriv-
ative actions by shareholders and prescribes specific
rules for such.
IDAHO: Idaho statute is based on the Model Busi-
ness Corporation Act.
ILLINOIS: The statute permits derivative actions by
shareholders. The statute requires vote of sharehold-
ers to approve mergers, acquisitions, and other sig-
nificant and fundamental changes in the corporate
structure.
INDIANA: Indiana statute is based on the Model Busi-
ness Corporation Act. The statute restricts preemp-
tive rights, except those provided under prior law.
Shareholder derivative action is permitted, subject to
some restrictions. The statute permits the creation
of a disinterested committee of the corporation to
consider a derivative action.
IOWA: The statute does not provide preemptive
rights, which may only be granted by the articles of
incorporation. The statute provides specific rules re-
garding shareholder meetings and shareholder vot-
ing.
KANSAS: The statute provides specific rules regard-
ing derivative actions. The statute prescribes specific
rules shareholder meetings and voting, including
voting agreements and voting by proxy.
KENTUCKY: Kentucky statute is based on the Model
Business Corporation Act. The statute permits deriv-
ative actions by shareholders and provides specific
rules regarding representation of the corporation’s
rights.
LOUISIANA: The statute does not provide preemp-
tive rights, which may only be granted in the articles
of incorporation. The statute provides specific rules
regarding shareholder meetings and voting, includ-
ing the creation of voting trusts.
MAINE: Maine statute is based on the 1960 version
of the Model Business Corporation Act. The statute
grants limited preemptive rights in some circum-
stances. The statute permits derivative actions and
prescribes specific rules regarding such actions.
MARYLAND: Maryland statute is based on the Model
Business Corporation Act. The statute prescribes
specific rules regarding shareholder meeting and
voting, including voting by proxy.
MASSACHUSETTS: The statute does not provide pre-
emptive rights to shareholders. The statute permits
derivative suits by shareholders under appropriate
circumstances.
MICHIGAN: Shareholders are permitted to bring an
action to establish that the acts of directors or other
managers are illegal, FRAUDULENT, or willfully unfair
or oppressive to the shareholders or corporation.
The statute sets forth detailed rules regarding share-
holder meetings and voting, including voting with-
out a meeting and voting trusts.
MINNESOTA: The statute sets forth detailed rules re-
garding shareholder meetings and voting and the
rights of shareholders to inspect the books and re-
cords of the corporation.
MISSISSIPPI: Mississippi statute is based on the
Model Business Corporation Act.
MISSOURI: The statute permits shareholders to
bring suit to enjoin ultra vires acts. The statute pro-
vides detailed rules regarding shareholder meetings
and voting, including voting trusts.
MONTANA: Montana statute is based on the Model
Business Corporation Act. The statute provides spe-
cific rules regarding shareholder meetings and vot-
BUSINESS LAW—SHAREHOLDER RIGHTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 127
ing, including a provision that permits shareholders
to participate by telephone if the corporation con-
sists of 50 or fewer shareholders.
NEBRASKA: Nebraska’s statute is based on the Model
Business Corporation Act.
NEVADA: The statute provides specific rules regard-
ing shareholder meetings and voting, including vot-
ing trusts.
NEW HAMPSHIRE: New Hampshire statute is based
on the Model Business Corporation Act.
NEW JERSEY: Statute does not provide preemptive
rights for shareholders. The statute permits deriva-
tive suits subject to some restrictions, and provides
specific rules regarding shareholder meetings and
voting, including voting trusts and voting by proxy.
NEW MEXICO: New Mexico statute is based on the
Model Business Corporation Act. The statute permits
shareholder derivative suits, subject to some restric-
tions.
NEW YORK: In some limited circumstances, majority
shareholders may incur personal liability for corpora-
tion’s debts. The statute provides detailed rules re-
garding shareholder meetings and voting, including
voting trusts.
NORTH CAROLINA: North Carolina statute is based
on the Model Business Corporation Act. Sharehold-
ers under current statute do not have preemptive
rights. The statute provides detailed rules regarding
shareholder meetings and voting, including voting
trusts and voting by proxy.
NORTH DAKOTA: Shareholder meetings are held on
an annual or other periodic basis, but do not need
to be held unless required by the articles of incorpo-
ration or the by-laws. A shareholder with more than
5 percent of voting power may demand a meeting.
OHIO: The statute permits derivative actions
brought by shareholders. Shareholders provide de-
tailed rules regarding shareholder meetings and vot-
ing, including voting trusts.
OKLAHOMA: The statute permits derivative actions
brought by shareholders. Statute and provides de-
tailed rules regarding shareholder meetings and vot-
ing, including voting trusts.
OREGON: Oregon statute is based on the Model
Business Corporation Act. The statute provides de-
tailed rules regarding shareholder meetings and vot-
ing, including voting trusts.
PENNSYLVANIA: The statute permits derivative ac-
tions brought by shareholder and provides detailed
rules regarding these actions. The statute provides
detailed rules regarding shareholder meetings and
voting, including voting trusts.
RHODE ISLAND: Rhode Island statute is based on
Model Business Corporation Act. The statute permits
derivative actions brought by shareholders and pro-
vides some limitation for voting trusts and share-
holder agreements.
SOUTH CAROLINA: South Carolina statute is based
on the Model Business Corporation Act. The statute
provides detailed rules on shareholder meetings and
voting, including voting trusts and voting by proxy.
SOUTH DAKOTA: South Dakota statute is based on
the Model Business Corporation Act.
TENNESSEE: The statute contains special rules re-
garding derivative actions brought by shareholders.
TEXAS: The statute permits shareholder agreements,
subject to a number of restrictions and provides de-
tailed rules regarding shareholder meetings and vot-
ing, including voting trusts.
UTAH: Utah statute is based on the Model Business
Corporation Act. The statute provides detailed rules
regarding shareholder meetings and voting, includ-
ing voting entitlement, voting trusts, voting agree-
ments, and other shareholder agreements.
VERMONT: The statute does not provide preemptive
rights to shareholders. The statute provides specific
rules regarding voting trusts and voting by proxy and
permits derivative actions brought by shareholders.
VIRGINIA: Virginia statute is based partially on the
Model Business Corporations Act. The statute pro-
vides preemptive rights to shareholder by default.
Statute and permits derivative actions brought by
shareholders.
WASHINGTON: Washington statute is based on the
Model Business Corporations Act. The statute pro-
vides preemptive rights to shareholders by default.
WEST VIRGINIA: The West Virginia statute is based
primarily on the Model Business Corporation Act.
The statute provides detailed rules regarding share-
holder meetings and voting, including voting trusts.
WISCONSIN: The statute does not provide preemp-
tive rights to shareholders. Statute and provides de-
tailed rules regarding shareholder meetings and vot-
ing, including voting by proxy and voting trusts.
BUSINESS LAW—SHAREHOLDER RIGHTS
128 GALE ENCYCLOPEDIA OF EVERYDAY LAW
WYOMING: Wyoming’s statute is based on the Model
Business Corporations Act.
Additional Resources
The Active Shareholder: Exercising Your Rights, Increas-
ing Your Profits, and Minimizing Your Risks. Ma-
honey, William F., Wiley, 1993.
Corporate Governance. Monks, Robert A.G., and Nell
Minow, Blackwell Publishers, 2001.
Corporations: Examples and Explanations, 3rd ed., Solo-
man, Lewis D., and Alan R. Palmiter, Aspen Law & Busi-
ness, 1999.
Law of Corporations in a Nutshell. Hamilton, Robert W.,
West Group, 2000.
Model Business Corporation Act Annotated, 3rd ed.,
American Bar Association, 1998/1999.
Organizations
American Bar Association, Section of
Business Law
740 15th Street, NW
Washington, DC 20005-1019 USA
Phone: (312) 988-5522
URL: http://www.abanet.org/buslaw/home.html
E-Mail: businesslaw@abanet.org
Center for Corporate Law, University of
Cincinnati College of Law
P.O. Box 210040
Cincinnati, OH 45221-0040 USA
Phone: (513) 556-6805
Fax: (513) 556-2391
URL: http://www.law.uc.edu/CCL/
Primary Contact: Peter Letsou, Director
Council of Better Business Bureaus (CBBB)
4200 Wilson Blvd., Suite 800
Arlington, VA 22203-1838 USA
Phone: (703) 276-0100
Fax: (703) 525-8277
URL: http://www.bbb.org/
United States Chamber of Commerce
1615 H Street, NW
Washington, DC 20062-2000 USA
Phone: (202) 659-6000
E-Mail: custsvc@uschamber.com
URL: http://www.uschamber.com
BUSINESS LAW—SHAREHOLDER RIGHTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 129
This Page Intentionally Left Blank
CIVIL RIGHTS
AFFIRMATIVE ACTION
Sections within this essay:
• Background
• Affirmative Action Defined
• History of Affirmative Action
• Supreme Court Decisions on Affirmative Ac-
tion
- Griggs v. Duke Power Co.
- Regents of the University of Califor-
nia v. Bakke
- United Steel Workers of America v.
Weber and Fullilove v. Klutznick
- Johnson v. Santa Clara County
Transportation Agency
- City of Richmond v. J.A. Croson
- Adarand Construction v. Pena
• Forms of Affirmative Action
- Affirmative Action at the State Level
- Required Affirmative Action For Fed-
eral Contractors
- Voluntary Implementation of Affir-
mative Action
- What An Affirmative Action Plan
Should Include
• Abolishing Affirmative Action
• Additional Resources
Background
AFFIRMATIVE ACTION has been the most conten-
tious area of CIVIL RIGHTS law during the past 30
years. Despite several Supreme Court decisions, nu-
merous EXECUTIVE ORDERS, and laws passed by legis-
lators at the state and federal level, it is still consid-
ered an unsettled area of law. Because of this current
lack of resolution, any article written about affirma-
tive action may soon become outdated with the lat-
est law or court decision. Nevertheless, the broad
outlines of what affirmative action has been and pre-
sumably will be in the future can be established.
Affirmative Action Defined
Although the term ‘‘affirmative action’’ can be
used in a variety of contexts, the most popular defini-
tion currently is within the arena of civil rights.
There, affirmative action has been held to provide a
special boost to qualified minorities, women, and
disabled individuals in order to make up either for
past DISCRIMINATION or for their under representa-
tion in a specific area of the work force or academia.
Though these categories of individuals have histori-
cally benefited most, affirmative action programs can
also apply to other areas of discrimination, such as
age, nationality, and religion.
Affirmative action can be administered in several
ways. One way is through ‘‘quotas,’’ defined as a
strict requirement for a proportion or share of jobs,
funding, or other placement to go to a specific
group, e.g. 50 percent of all new hires must be
women. Another is ‘‘goals,’’ which require agencies
and institutions to exert a good-faith effort toward
reaching the assigned proportion or share goal but
do not require that the proportion be reached. Affir-
mative action can also take the form of intangible
‘‘boosts’’ for the respective beneficiaries of the pro-
gram; for example, all men shorter than 5’8’’ will be
given ten extra points on the physical fitness exam.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 131
The reasons for affirmative action are myriad and
tend to overlap, but generally two justifications have
stood out. One is that the group has been discrimi-
nated against in the past, e.g. black Americans, and
needs affirmative action in order to ‘‘catch up’’ to the
majority that has not suffered discrimination. The
other is that the group is under represented in what-
ever area is being scrutinized, e.g. women in con-
struction jobs, and needs to be helped to achieve
some sort of representation in the area. Even in this
situation, however, there is the tacit admission that
discrimination might be the underlying cause of the
under representation.
History of Affirmative Action
Affirmative action has its origins in the civil rights
movement of the late 1950s and early 1960s. The
movement brought a dramatic change to U. S. social
life through protests, court decisions, and legislative
action, culminating in the passage of the 1964 Civil
Rights Act, popularly known as Title VII.
But Title VII mentioned affirmative action in a pos-
itive sense only in the context of the American Indi-
an. It allowed preferential treatment to be given ‘‘to
individuals because they are Indians living on or near
a reservation.’’ Otherwise, Title VII outlawed discrim-
ination in a ‘‘color blind’’ fashion. The relevant part
of Title VII states: ‘‘Nothing contained in this [law]
shall be interpreted to require any employer, em-
ployment agency, labor organization, or joint labor-
management committee subject to this [law] to
grant preferential treatment to any individual or to
any group because of the race, color, religion, sex,
or national origin of such individual or group on ac-
count of an imbalance which may exist with respect
to the total number or percentage of persons of any
race, color, religion, sex, or national origin employed
. . . in comparison with the total number or percent-
age of persons of such race, color, religion, sex, or
national origin in any community, State, section, or
other area, or in the available work force in any com-
munity, State, section, or other area.’’
This part of Title VII was passed to assuage the
concerns of moderate members of Congress that the
Civil Rights Act would become a quota bill, requiring
reverse discrimination against whites. Civil rights
leaders, who for the most part felt distinctly ambiva-
lent about affirmative action, did not object to the in-
clusion of this passage. Many saw affirmative action
as a way of dividing working class whites from blacks
and the civil rights movement from its natural allies
in the labor movement.
But the riots of the mid and late-1960s convinced
more and more civil rights leaders that a color-blind
policy of enforcing civil rights was not enough and
that there had to be steps taken to ensure blacks
could complete equally with whites. President Lyn-
don Johnson endorsed this view in a speech before
Howard University in 1965 in which he stated: ‘‘You
do not take a person who for years has been hobbled
by chains and liberate him, bring him to the starting
line and say you are free to compete with all the oth-
ers.’’
That same year, Johnson issued Executive Order
11246, requiring firms under contract with the feder-
al government not to discriminate, and to ‘‘take affir-
mative action to ensure that applicants are employed
and that employees are treated during employment,
without regard to their race, creed, color, or national
origin.’’ Although not specifying what would consti-
tute affirmative action and not applying to any firms
outside the federal government, this order is consid-
ered the first attempt at positive affirmative action by
a governmental entity. The order also created the Of-
fice of Federal Contract Compliance (OFCC) to en-
force this policy.
Because the term, affirmative action, was left in-
tentionally vague by the executive order, however,
the OFCC was unsure how to enforce it. The OFCC
formulated several plans in cities, such as Cleveland
and Philadelphia, to facilitate the hiring of minorities
for federal government work, but for various reasons
these plans were determined to be illegal or never
seriously enforced. Johnson left office without any
definite affirmative action plan put forth on his
watch.
It was left to the Nixon administration, ironically
considered an administration not particularly friend-
ly to civil rights interests, to pick up the issue and
promote the first serious affirmative action plan that
required government-determined, numerically spe-
cific percentages of minorities to be hired.
In 1969, the Nixon administration picked up a
plan that the Johnson administration had put forth
for the construction industry in the city of Philadel-
phia, referred to as the Philadelphia Plan. The John-
son administration plan was faulted for not having
definite minimum standards for the required affirma-
tive action programs. The Nixon plan did issue mini-
mum standards—specific targets for minority em-
CIVIL RIGHTS—AFFIRMATIVE ACTION
132 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ployees in several trades. It did not require these
minimum standards be met, simply that contractors
submitting bids make a ‘‘good faith’’ effort to achieve
these targets. This allowed the administration to
argue it was not setting quotas, though critics of the
plan suggested the administration was in fact doing
so.
The Philadelphia Plan survived several challenges,
both legal and Congressional, before being accepted
as legitimate. The Plan set the tone for affirmative ac-
tions plans that followed. Soon, the standards put
forth in the Philadelphia Plan were incorporated into
Executive Order 11246 which affected all federal gov-
ernment contractors, who were required for the first
time to put forth written affirmative action plans with
numerical targets.
After the implementation of the Philadelphia Plan,
legislation was passed at the federal, state, and mu-
nicipal level implementing affirmative action plans
using the Philadelphia Plan as a model. Today, al-
most all government affirmative action plans are off-
shoots of the Philadelphia Plan. Its mixture of numer-
ical targets and requirements of ‘‘good faith’’ effort
was a milestone in the history of affirmative action.
Supreme Court Decisions on Affirmative
Action
The Supreme Court has given its opinion on affir-
mative action on numerous occasions since the Phil-
adelphia Plan was put into effect in 1970. By–and–
large, these Supreme Court decisions were more
open to the idea of affirmative action during the
1970s and early 1980s and then gradually tightened
the requirements for affirmative action plans. Gener-
ally, the question before the Supreme Court regard-
ing affirmative action plans asked what kind of scruti-
ny to give the plans.
Griggs v. Duke Power Co.
Decided in 1971, this decision is generally held to
have laid the foundation for affirmative action pro-
grams based on the rationale of under representa-
tion. The case involved black workers at a power
plant in North Carolina who sued, arguing that the
plant’s requirements of a high school education or
passing a standardized intelligence test in order to fill
certain jobs was discriminatory. The plaintiffs argued
that the requirements operated to disqualify blacks
at a substantially higher rate than white applicants.
The plant argued that the requirements served a le-
gitimate business purpose.
A unanimous Supreme Court disagreed, ruling
that the tests did not serve any job-related require-
ment. The Court pointed out that the plant had prac-
ticed discrimination in the past and that the effect of
these requirements was to prevent black workers
from overcoming the effects of such discrimination.
‘‘Practices, procedures, or tests neutral on their face,
and even neutral in terms of intent, cannot be main-
tained if they operate to ‘freeze’ the status quo of
prior discriminatory employment practices,’’ said the
court.
The effect of Griggs v. Duke Power was to legiti-
mize the so-called disparate impact theory—the idea
that if a qualification had a disparate impact on a spe-
cific group, an organization could justify that qualifi-
cation only if it could prove a business related pur-
pose for such a requirement. This point opened the
door to forcing employers (including the govern-
ment) to taking a hard look at the effect of their em-
ployment practices and their relation to race.
Regents of the University of California v.
Bakke
This was the first instance of the court taking a
case specifically involving affirmative action. The case
involved a white man, Allan Bakke, who had applied
for a seat at the medical school at the University of
California at Davis. Bakke was rejected, and then he
sued, arguing that less qualified minorities were
being allowed into the school under a quota system
reserving a specific number of seats for minorities.
In a 5-4 ruling, a divided Supreme Court in 1978
ruled that the specific quota system used by the Uni-
versity of California at Davis was illegal but that race
could be taken into consideration in determining ad-
mission slots at the school. The result was the first
time the Court had held that reverse discrimination
could be justified under certain circumstances.
United Steel Workers of America v. Weber
and Fullilove v. Klutznick
These two cases, decided a year apart, further le-
gitimized the use of affirmative action as a tool for in-
creasing minority employment. In the Weber case,
the Supreme Court in 1979 ruled that an affirmative
action plan for on-the-job training that mandated a
one-for-one quota for minority workers admitted to
the program was legal, since the plan was a tempo-
rary measure designed to correct an imbalance in the
workforce.
In Fullilove, the Supreme Court upheld the ‘‘mi-
nority business enterprise’’ provision of Public
CIVIL RIGHTS—AFFIRMATIVE ACTION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 133
Works Employment Act of 1977, which requires that
at least 10 percent of federal funds granted for local
public works projects must be used by the state or
local grantee to procure services or supplies from
businesses owned by minority group members.
Johnson v. Santa Clara County
Transportation Agency
This 1987 decision expanded the Court’s protec-
tion of affirmative action programs to ones benefit-
ing women. The Court ruled that the county agency
did not violate civil rights laws by taking the female
employee’s sex into account and promoting her over
male employee with a higher test score. By doing so,
the court upheld the county’s affirmative action plan
directing that sex or race be considered for purpose
of remedying under representation of women and
minorities in traditionally segregated job categories.
City of Richmond v. J.A. Croson
Beginning with this case in 1989, the Supreme
Court began to cut back on the leeway it had given
affirmative action programs. The Court struck down
a set-aside program mandated by the city of Rich-
mond, Virginia, which required prime contractors
awarded city construction contracts to subcontract at
least 30 percent of the dollar amount of each con-
tract to one or more ‘‘Minority Business Enter-
prises.’’ The Court ruled that the city failed to dem-
onstrate compelling governmental interest justifying
the plan, and the plan was not narrowly tailored to
remedy effects of prior discrimination.
In handing down this ruling, the Court deter-
mined that any JUDICIAL REVIEW of municipal affirma-
tive action plans would be reviewed with ‘‘strict scru-
tiny.’’ Under the strict scrutiny test, defendants are
required to establish they have a compelling interest
in justifying the measure or that the affirmative ac-
tion program advances some important governmen-
tal or societal purpose. For all practical purposes, this
ruling makes it very hard to justify an affirmative ac-
tion plan unless past discrimination can be shown,
and the under representation of minorities is a prod-
uct of that discrimination.
Adarand Construction v. Pena
In this most recent Supreme Court case, the
Court applied the standards propagated in City of
Richmond v. Croson to the federal government, rul-
ing that all racial classifications imposed by whatever
federal, state, or local governmental actor must be
analyzed by the reviewing court under strict scrutiny.
The Court overturned a decision dismissing a suit
brought by a contractor challenging the constitution-
ality of a federal program designed to provide high-
way contracts to minority business enterprises.
The results in Adarand confirm that the conserva-
tive direction in which the Supreme Court is moving
with respect to affirmative action plans. It seems
clear after this decision that affirmative action plans
will only survive court challenges by being narrowly
tailored to rectify past discrimination.
However, any change in the Supreme Court could
result in a reversal of fortune for affirmative action.
Given the age of the current justices and the division
of government between Democrats and Republi-
cans, it remains impossible to predict the will of the
Court in the future in regards to this controversial
topic.
Forms of Affirmative Action
Affirmative actions can take different forms. Often
affirmative actions are written into federal or state
law. They can also take the form of voluntary plans
or consent decrees. Occasionally, although rarely
these days, a court will impose an affirmative action
plan to remedy the effects of past discrimination.
Although affirmative action has been employed in
the private sector, its use has been most pronounced
in the public sector, in regard to both hiring and con-
tract requirements. Affirmative action has been
broadly used across a wide spectrum of federal, state,
and municipal governments.
Samples of Affirmative Action at the Federal Level
are as follows:
Department of Defense: Strives to award five per-
cent of Department of Defense procurement, re-
search and development, construction, operation
and maintenance contracts to minority businesses
and institutions.
Federal Home Loan Banks: Provides for preserva-
tion and expansion of minority owned banks.
Department of State: Mandates at least 10 percent
of amount of funds appropriated for Department of
State and foreign affairs diplomatic construction
projects be allocated to American minority contrac-
tors.
NASA: Requires NASA administrator to establish an-
nual goal of at least eight percent of total value of
prime contracts and subcontracts awarded to be
made to small disadvantaged businesses and minori-
ty educational institutions.
CIVIL RIGHTS—AFFIRMATIVE ACTION
134 GALE ENCYCLOPEDIA OF EVERYDAY LAW
FCC: Must ensure that minority- and women-owned
businesses have opportunity to participate in provid-
ing spectrum-based services.
Department of Energy: Works to achieve five per-
cent of combined total funds of Department of Ener-
gy used to carry out national security programs be al-
located to minority businesses and institutions.
Department of Energy: Strives for five percent of
combined total funds of Department of Energy used
to carry out national security programs be allocated
to minority businesses and institutions.
Department of Transportation: Requires that not
less than 10 percent of funds appropriated under the
Intermodal Surface Transportation Efficiency Act of
1991 be expended on small and minority businesses.
Environmental Protection Agency: Must allocate
no less than 10 percent of federal funding to minority
businesses for research relating to requirements of
Clean Air Act Amendments of 1990.
Affirmative Action at the State Level
ARKANSAS: Requires Division of Minority Business
Enterprise to develop plans and participation goals
for minority businesses.
CONNECTICUT: Mandates that contractors on state
public works contracts make GOOD FAITH efforts to
employ minority businesses as subcontractors and
suppliers, allows municipalities to set aside up to 25
percent of dollar amount of construction and supply
contracts to award to minority businesses.
DISTRICT OF COLUMBIA: Requires District of Co-
lumbia agencies to allocate 35 percent of dollar
amount of public construction contracts to minority
businesses.
FLORIDA: Allows municipalities to set aside up to 10
percent of dollar amount of contracts for procure-
ment of PERSONAL PROPERTY and services to award to
minority businesses.
ILLINOIS: Requires Metropolitan Pier and Exposition
Authority to establish goals of awarding not less than
25 percent of dollar amount of contracts to minority
contractors and not less than five percent to women
contractors.
INDIANA: Requires that state agencies establish goal
that five percent of all contracts awarded be given to
minority businesses.
KANSAS: Allows Secretary of Transportation to desig-
nate certain state highway construction contracts, or
portions of contracts, to be set aside for bidding by
disadvantaged businesses only.
LOUISIANA: Requires establishment of annual partic-
ipation goals for awarding contracts for goods and
services and public works projects to minority- and
women-owned businesses.
MARYLAND: Requires that Maryland award 14 per-
cent of dollar amount of procurement contracts to
minority businesses.
MICHIGAN: Establishes participation goals for
awarding of government contracts to minority- and
women-owned businesses.
NEW JERSEY: Allows municipalities to set aside cer-
tain percentage of dollar value of contracts to award
to minority businesses.
NEW YORK: Allows municipalities to set aside certain
percentage of dollar value of contracts to award to
minority businesses.
OHIO: Provides that a prime contractor on a state
contract must award subcontracts totaling no less
than five percent of the total value of the contract to
Minority Business Enterprises (MBE) and that the
total value of both the materials purchased from
MBE’s and of the subcontracts awarded will equal at
least seven percent of the total value of the contract.
TENNESSEE: Requires all state agencies to actively
solicit bids from small businesses and minority-
owned businesses whenever possible. Local educa-
tion agencies and state colleges and universities may
set aside up to 10 percent of their funds allocated for
procurement of personal property and services for
the purpose of entering into contracts with small
businesses and minority-owned businesses.
Required Affirmative Action For Federal
Contractors
Contractors with the federal government are re-
quired to have affirmative action plans under various
federal laws. These laws include:
Executive Order 11246: This 30-year-old order,
signed by President Johnson and amended by Presi-
dent Nixon, applies to all nonexempt government
contractors and subcontractors and federally assisted
construction contracts and subcontracts in excess of
$10,000. Under the Executive Order, contractors and
subcontractors with a federal contract of $50,000 or
more and 50 or more employees are required to de-
velop a written affirmative action program that sets
forth specific and result-oriented procedures to
CIVIL RIGHTS—AFFIRMATIVE ACTION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 135
which contractors commit themselves to apply every
good faith effort.
Section 503 of the Rehabilitation Act of 1973: Re-
quires affirmative action plans in all personnel prac-
tices for qualified individuals with disabilities. It ap-
plies to all firms that have a nonexempt government
contact or subcontract in excess of $10,000.
The Vietnam Era Veterans’ Readjustment Assis-
tance Act of 1974 (VEVRAA): Requires affirmative ac-
tion programs in all personnel practices for special
disabled veterans, Vietnam Era veterans, and veter-
ans who served on active duty during a war or in a
campaign or expedition for which a campaign badge
has been authorized. It applies to all firms that have
a nonexempt government contract or subcontract of
$25,000 or more.
What An Affirmative Action Plan Should
Include
The Office of Federal Contract Compliance Pro-
grams (OFCCP) suggests that non-construction con-
tractors’ written affirmative action plans include the
following affirmative action as part of an action-
oriented program:
• Contact with specified schools, colleges, reli-
gious organizations, and other institutions
that are prepared to refer women and mi-
norities for employment;
• Identification of community leaders as re-
cruiting sources;
• Holding of formal briefing sessions, prefera-
bly on company premises, with representa-
tives from recruiting sources;
• Conduct of plant tours, including presenta-
tion by minority and female employees of
clear and concise explanations of current
and future job openings, position descrip-
tions, worker specifications, explanations of
the company’s selection process, and re-
cruitment literature;
• Encouragement of minority and female em-
ployees to refer applicants;
• With special efforts the inclusion of minori-
ties and women in personnel department
staffs;
• The availability of minority and female em-
ployees for participation in career days,
youth motivation programs, and related
community activities;
• Recruitment at secondary schools, junior
colleges, and colleges with predominantly
minority or female enrollments;
• With special efforts the contact with minori-
ties and women when recruiting at all
schools;
• Special employment programs undertaken
whenever possible, such as technical and
non-technical co-op programs with predom-
inantly black and women’s colleges, summer
jobs for underprivileged youth, and motiva-
tion programs for the hardcore unem-
ployed;
• Inclusion of minority and female employees
in recruiting brochures pictorially present-
ing work situations;
• Expansion of help-wanted advertising to reg-
ularly include the minority news media and
women’s interest media.
Voluntary Implementation of Affirmative
Action
Both private and public employers use voluntary
affirmative action. However, both private and public
employers must satisfy certain criteria in order to
comply with Title VII. The employer must have a le-
gitimate reason for adopting a plan. Also, the plan
cannot unduly interfere with the employment op-
portunities of non-minority or male workers or job
applicants to the extent that their interests are ‘‘un-
necessarily trammeled.’’ The EEOC has promulgat-
ed Guidelines on Affirmative Action that explain how
to develop a lawful affirmative action plan under Title
VII.
Often, affirmative action remedies are agreed
upon to settle a discrimination case. These remedies
are implemented by a consent DECREE. A court must
approve provisions in consent decrees that provide
for the employer’s ADOPTION of an affirmative action
program. Affirmative action contained in the decree
is viewed as voluntary. The action may benefit indi-
viduals who were not the victims of the discriminato-
ry practice at issue.
Abolishing Affirmative Action
In the 1990s, several states moved to abolish affir-
mative action programs. California voted in 1996 to
abolish affirmative action, and Washington State
voted similarly in 1998. The California ban asserts:
‘‘the state shall not discriminate against, or grant
CIVIL RIGHTS—AFFIRMATIVE ACTION
136 GALE ENCYCLOPEDIA OF EVERYDAY LAW
preferential treatment to, any individual or group on
the basis of race, sex, color, ethnicity, or national ori-
gin in the operation of public employment, public
education, or public contracting.’’ The wording of
the Washington law is identical. Both laws were
passed in voter referenda.
In addition, the 5th Circuit Court in Hopwood v.
Texas in 1996 effectively abolished affirmative action
for schools in that circuit (which includes Texas, Lou-
isiana, and Mississippi), ruling that giving preferential
treatment to minorities violates EQUAL PROTECTION.
More recently, Florida in 2000 decided to abolish af-
firmative action for colleges in the state, replacing it
with an initiative to guarantee college admissions for
the states’ top high schools.
Whether these events prove to be a trend is hard
to say. But between these actions and the recent Su-
preme Court decisions it is clear, for the moment at
least, that affirmative action is in retreat.
Additional Resources
Affirmative Action. A.E. Sadler, Ed., Greenhaven Press,
1996.
Affirmative Action Fact Sheet. Office of Federal Contract
Compliance Programs, 2000. Available at http://
www.dol.gov/dol/esa/public/ofcp_org.htm.
Alice in Preference Land: A Review of Affirmative Action
in Public Contracts. Denise Farris, Construction Law-
yer, Fall, 1991.
American Jurisprudence. Second Edition, Job Discrimina-
tion §§ 600-678 (2000).
Equality Transformed: A Quarter-Century of Affirmative
Action. Herman Belz, Transaction Publishers, 1991.
Federal Law of Employment Discrimination. Mack Player,
West Group, 1989.
Has Affirmative Action Been Negated? A Closer Look at
Public Employment. Honorable H. Lee Sarokin, et al;
San Diego Law Review, Summer, 2000.
The Ironies of Affirmative Action. John David Skrentny,
University of Chicago Press, 1996.
Setting Aside Set Asides: The New Standards for Affirma-
tive Action Programs in the Construction Industry.
Steven K. DiLiberto, Villanova Law Review, 1997.
U.S. Code, Title 42: United States Code Annotated Title 42:
The Public Health And Welfare Chapter 21: Civil
Rights. U. S. House of Representatives, 1999. Available
at http://uscode.house.gov/title_42.htm.
Organizations
American Association For Affirmative Action
P.O. Box 14460
Washington, DC 20044-4460 USA
Toll-Free: 800-252-8952
Fax: (202) 628-7977
URL: http://www.affirmativeaction.org/
Primary Contact: Ismael Rivera, President
Office of Federal Contract Compliance
Programs (OFCCP)
200 Constitution Ave., NW
Washington, DC 20210 USA
Phone: (888) 37-OFCCP
Fax: (206) 553-2694
URL: http://www.dol.gov/dol/esa/public/ofcp_
org.htm
Primary Contact: Donald Elliott, Ombudsperson
U. S. Equal Employment Opportunity
Commission
1801 L Street, N.W.
Washington, DC 20507 USA
Phone: (202) 663-4900
URL: http://www.eeoc.gov/
Primary Contact: Cari M. Dominguez, Chair
CIVIL RIGHTS—AFFIRMATIVE ACTION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 137
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CIVIL RIGHTS
AGE DISCRIMINATION
Sections within this essay:
• Background
• Discrimination in the Twentieth Century
- Changing Attitudes
- Retirement Plans
• Subtle Discrimination
• Legal Protection
- Bona Fide Occupational Qualifica-
tions
• Finding Answers
• Additional Resources
Background
Age DISCRIMINATION occurs when an older person
is pressured in the workplace to leave. Under the law
a person’s career cannot be jeopardized solely be-
cause of age. Unfortunately, many employers resort
to subtler but equally damaging tactics to thin the
ranks of older workers. Today, ‘‘older worker’’ can
mean anyone over the age of 40. Employees who fall
into this group need to understand their rights
under the law; this way, if they suspect discrimina-
tion, they can take appropriate action.
Until the early twentieth century discrimination
based on age was not a clear-cut issue in most profes-
sions, Most people worked until they reached an age
at which they were no longer able to be productive.
For the remainder of their lives they would be taken
care of by their families.
With the rise in industrialization and in unions,
specific guidelines were set in place for how long
people should stay on the job. The introduction of
PENSION programs allowed workers the opportunity
to stop working when they reached old age, secure
in the knowledge that they would be able to take
care of themselves financially. Later, government ini-
tiatives such as Social Security made it still easier for
people to retire.
Beginning after World War II, dramatic changes in
the workplace created a shift in policies and atti-
tudes. Technology had made many jobs obsolete,
and employees had to learn more and learn faster.
As the postwar ‘‘baby boom’’ generation came of
age, a growing emphasis on youth pervaded an in-
creasingly crowded workplace. People who had
reached old or even middle age began to face in-
creasing pressure to leave the workforce. Sometimes
they were simply forced out. Older workers who
happen to be women or members of a minority
group have to be particularly diligent, since they
could be subject to discrimination on additional fac-
tors.
Discrimination of any kind is determined by either
direct or indirect EVIDENCE under the law. Direct evi-
dence can include outright statements an employer
makes about a particular job candidate that shows in-
tent to exclude. Indirect evidence can be when an
employer makes job qualifications vague enough to
exclude certain people even though everything
looks legal and ethical. In age discrimination cases,
direct evidence would be an employer telling an
older worker, ‘‘You’re doing that job much more
slowly than the others,’’ or ‘‘I don’t think you’ll be
able to learn our new computer system.’’ Indirect ev-
idence would be when a potential employer turns
down a qualified older job applicant in favor of some-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 139
one younger. Of course, if the younger employee is
demonstrably better qualified, it may not be a case
of discrimination. But if, for example, a qualified
older worker is passed over for a job and the employ-
er continues to interview other candidates, the em-
ployer may be deliberately excluding the older candi-
date.
Discrimination in the Twentieth Century
Changing Attitudes
The ‘‘baby boom’’ that began at the end of World
War II in 1945 and lasted until the early 1960s gener-
ated an enormous number of new employees in the
1970s and 1980s. Interestingly, many companies saw
the baby boomers as detrimental to productivity. To
be sure, the youthful boomers lacked the experience
of mature workers. But they were also the victims of
stereotypes. Companies believed that these young
people, born in the heady days of the postwar econo-
my, would be less willing to work their way up from
the bottom, as their parents had done. The younger
workers would probably be spoiled and arrogant,
and, consequently, less productive.
At the same time, rapid advances in technology
meant that workers needed to be able to adapt to
new ways of doing their jobs. Many companies that
had prided themselves on a policy of ‘‘lifetime em-
ployment’’ began to see their longtime workforce as
a drain on productivity. The reasoning had less to do
with any belief that older workers would be unable
to master new skills than it did with the fear that the
older workers had grown complacent in their jobs.
Moreover, older workers commanded the highest
salaries and were the most likely to incur high health
care costs. As the number of baby boomers in the
market increased, companies began to shift their
commitment from experience to a younger, less ex-
pensive workforce that could be trained (and whose
jobs were made easier by technology).
Retirement Plans
While there are many older workers who want to
continue in the jobs because they enjoy their work,
many others continue to work because they cannot
afford to retire. Thanks in large part to unions, many
employees are guaranteed a good pension from their
company after a set number of years, regardless of
their age at retirement. Known as ‘‘30-and-Out’’ pro-
grams (based on a United Auto Workers deal with
Chrysler in 1973), they allow workers to put in their
30 or however many years and retire with full pen-
sion benefits instead of having to wait until age 65
(when people can collect their full Social Security
benefits).
Many companies offer some sort of early retire-
ment package for employees, in part to make room
for younger workers but also in part to cut down on
the number of top-salaried people on the payroll.
Such offers are not illegal and in fact can be beneficial
to both the company and the employee. The issue
takes a different turn when the employee is being
pressured to accept an early retirement plan.
Setting a mandatory retirement age is illegal in
most professions, although there are exceptions.
Federal law recognizes ADEA exemptions in the case
of such employees as air traffic controllers, federal
police officers, airline pilots, and firefighters. In 1996
Congress passed legislation that allowed state and
local governments to set retirement ages for these
and similar employees to as young as 55. State and
local judges are often required to step down at a cer-
tain age as well. In addition to mandatory retirement
ages, many public safety jobs also have mandatory
hiring ages, thus closing the door to potentially oth-
erwise qualified people. The argument against man-
datory retirement claims that it would be fairer to all
employees to rely on periodic fitness testing, since
some older workers may be just as able (or perhaps
more so) to carry out their duties as younger ones.
Subtle Discrimination
Blatant discrimination is deplorable, but it is easy
to spot and usually easy to determine accountability.
More ambiguous, and thus more dangerous to older
workers, is subtle discrimination. This can take many
forms, and by its nature it is probably more pervasive
than most people realize. Some examples are as fol-
lows:
• A longtime employee’s supervisor makes
comments in his or her presence about the
benefits of retirement
• An employee whose company ‘‘restruc-
tures,’’ and who subsequently ends up with
a smaller office down a little-used corridor
• An employee who gets passed over for pro-
motions, always in favor of younger staffers
• A worker who is reassigned to a job with
fewer responsibilities, even if the assign-
ment is considered a lateral move
• An employee who is no longer sent on busi-
ness trips, provided membership in profes-
CIVIL RIGHTS—AGE DISCRIMINATION
140 GALE ENCYCLOPEDIA OF EVERYDAY LAW
sional associations, or encouraged to take
job-related courses
What makes subtle discrimination so much more
dangerous than blatant discrimination in the minds
of many experts is that it is harder to prove. Perhaps
the supervisor is making comments about retire-
ment because he or she is looking forward to being
retired. Maybe the employee who was passed over
for promotions has never asked to be promoted and
thus is considered to be lacking in leadership initia-
tive. Subtle forms of age discrimination may make
older workers uncomfortable or unhappy enough
that they will retire, even though they may not be
able to pinpoint actual discrimination as their reason
for leaving. The bottom line, however, is that subtle
discrimination is no more acceptable in the work-
place than blatant actions directed at older workers.
Determining the difference between innocent re-
marks or coincidence and true discrimination may
be difficult, but an older worker who suspects dis-
crimination should know that taking action is a viable
option.
Legal Protection
Older workers have legal protection from age dis-
crimination. The Age Discrimination in Employment
Act (ADEA) was passed by Congress in 1967. The
ADEA extends the law as spelled out in the CIVIL
RIGHTS Act of 1964, which prohibits discrimination
based on race, sex, creed, color, religion, or ethnic
origin. (Title VII of the Civil Rights Act is important
to older workers who could suffer discrimination
based on any of those factors as well.) Under the
ADEA, workers age 40 and above are protected from
discrimination in recruitment, hiring, training, pro-
motions, pay and benefits, DISMISSAL and layoffs, and
retirement. The Older Workers Benefit Protection
Act (OWBPA), passed in 1990, guarantees protection
against discrimination in benefits packages. For ex-
ample, OWPBA sets strict guidelines prohibiting
companies from converting their pension plans in a
way that would provide fewer pension dollars to
older workers.
While the ADEA has been a critical factor in guard-
ing against age discrimination, certain decisions by
the U. S. Supreme Court have made it somewhat less
effective. Part of the reason is that the Civil Rights Act
of 1991, which amended Title VII of the 1964 Civil
Rights Act, did not similarly amend the ADEA. Thus,
although Title VII allows victims to recover compen-
satory and PUNITIVE DAMAGES since the 1991 amend-
ment, the ADEA does not. Recent Supreme Court ac-
tions have suggested that using pension eligibility or
high salaries as a basis for layoff decisions (a practice
that generally has the greatest impact on older work-
ers) may not be discriminatory.
In 2000, the Supreme Court ruled in Kimel v. Flor-
ida Board of Regents that states are protected from
ADEA suits by individuals. Legislation was introduced
in the U.S. Senate in 2001 that would require states
agencies to waive their IMMUNITY from ADEA suits or
else FORFEIT federal funding.
Most ADEA suits are based on charges brought be-
fore the Equal Employment Opportunity Commis-
sion (EEOC). The EEOC is responsible for investigat-
ing charges of age discrimination and seeking
remedies. Rarely does it file actual lawsuits (in fact
EEOC LITIGATION across the board dropped through
the 1990s and into the twenty-first century), but indi-
viduals are allowed to sue on their own.
In 1995 the EEOC conducted a comprehensive re-
view of its procedures and developed new National
and Local Enforcement Plans. These plans provide
guidelines for dealing with discrimination issues
against older workers.
The EEOC has long suffered from inadequate
funding, which limits its ability to investigate charges
as quickly as it would like. As a result, EEOC chooses
its lawsuits carefully to ensure maximum impact.
Bona Fide Occupational Qualifications
Under the law, not all age-related job exclusions
are discriminatory. In fact, both Title VII and the
ADEA recognize exclusions known as bona fide occu-
pational qualifications (BFOQs) as legitimate. For ex-
ample, a kosher meat market can legitimately require
that it can hire only Jewish butchers. An employer
seeking an BFOQ exclusion must be able to prove
that those from within an excluded group would not
be able to perform the job effectively. Thus, a moving
company might be able to exclude a 75-year-old as
a mover because moving requires heavy lifting and
driving long distances. An accounting firm would be
unable to make a similar claim in trying to force a 75-
year-old bookkeeper to retire solely based on age.
Finding Answers
Age discrimination has a twofold negative effect
on older workers. The TANGIBLE effect is loss of a job
or limited employment opportunities. Not only is it
harder for an older worker to keep a job, it becomes
CIVIL RIGHTS—AGE DISCRIMINATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 141
harder for an older worker to find a new job. (Eco-
nomic realities often dictate that early retirees may
have to supplement their pensions before they turn
65 and collect their full Social Security benefits.) The
psychological effect is that older workers become
frustrated by their situation. If they are working, this
could affect their productivity, which could feed the
stereotypes about older workers. If they are looking
for work, they may simply give up, believing that they
are unemployable.
Individuals who think they are victims of age dis-
crimination can turn to the local office of the EEOC
for assistance. The EEOC will provide information
about how to file charges at the state and federal le-
vels. It is also useful to contact the state office of civil
rights.
Older workers have a strong ally and resource in
the form of AARP (formerly known as the American
Association of Retired Persons). Founded in 1958,
AARP had 35 million members across the country in
2001. AARP acts as an information clearinghouse for
legislation and other materials, and it also serves as
a powerful LOBBYING force at the federal and state
level. Through its lobbying network, AARP seeks to
get Congress to enact new laws, enforce existing
laws, and revise flawed legislation. AARP is head-
quartered in Washington, D.C., but it has regional of-
fices to serve at the local level. Its leadership works
actively to combat all discrimination.
Additional Resources
Aging and Competition: Rebuilding the U. S. Workforce.
Auerbach, James A., and Joyce C. Welsh, editors, Na-
tional Planning Association, 1994.
The Aging of the American Work Force. Bluestone, Irving,
Rhonda J. V. Montgomery, and John D. Owen, editors,
Wayne State University Press, 1990.
American Bar Association Guide to Workplace Law.
White, Charles, Series Editor, Times Books, 1997.
Organizations
AARP
601 E Street NW
Washington, DC 20049 USA
Phone: (202) 434-2257
Fax: (202) 434-2588
URL: http://w ww.aarp.org
Primary Contact: William Novelli, Chief Executive
Officer
Equal Employment Opportunity Council
(EEOC)
1801 L Street NW
Washington, DC 20507 USA
Phone: (202) 663-4900
Fax: (202) 376-6219
URL: http://w ww.eeoc.gov
Primary Contact: Cari M. Dominguez, Chairperson
National Council on the Aging
409 Third Street, Suite 200
Washington, DC 20024 USA
Phone: (202) 479-1200
Fax: (202) 479-0735
URL: http://w ww.ncoa.org
Primary Contact: James P. Firman, President and
CEO
U. S. Department of Health and Human
Services, Administration on Aging
330 Independence Avenue SW
Washington, DC 20201 USA
Phone: (202) 619-0724
Fax: (202) 260-1012
URL: http://w ww.aoa.gov
Primary Contact: Josefina G. Carbonell, Assistant
Secretary for Aging
CIVIL RIGHTS—AGE DISCRIMINATION
142 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CIVIL RIGHTS
ASSEMBLY
Sections within this essay:
• Background
• Content-Based vs. Content-Neutral Restric-
tions on Free Speech
• Public vs. Private Speech
• Reasonable Time, Place, and Manner Restric-
tions
• Overbreadth and Vagueness
• Permissible and Impermissible Restricts on
Rights of Assembly
- Speech and Assembly in Public
Streets and Parks
- Parade Permits and Other Restric-
tions
- Speech and Assembly in Libraries
and Theatres
- Speech and Assembly in Airports and
Other Public Transportation Cen-
ters
- Picketing and Other Demonstrations
- Loitering and Vagrancy Statutes
- Speech and Assembly on Private
Property
• State Laws Affecting Rights of Assembly
• Additional Resources
Background
The First Amendment of the BILL OF RIGHTS pro-
vides that ‘‘Congress shall make no law . . . abridging
. . . the right of the people peaceably to assemble.’’
This provision applies to state government entities
through the Due Process Clause of the Fourteenth
Amendment. Though neither the federal Constitu-
tion nor any state constitution specifically protects
rights of association, the United States Supreme
Court and other courts have extended assembly
rights to include rights of association.
Rights to free speech and assembly are not abso-
lute under the relevant JURISPRUDENCE. Government
entities may restrict many types of speech without vi-
olating First Amendment protections. Many of the
Supreme Court’s First Amendment cases focus on
two main questions: first, whether the restriction on
speech was based on the content of the speech; and
second, whether the speech was given in a tradition-
al public forum or elsewhere. Some questions focus
exclusively on the actual speech, rather than on as-
pects of the right to assembly. Other questions con-
tain aspects of both the right to free speech and the
right to assemble peacefully. Cases addressing free
speech plus some conduct in the exercise of assem-
bly rights often pose complex questions, since either
the speech rights or the assembly rights may not pro-
tect the parties in these types of cases.
Since the courts take into consideration such a va-
riety of factors when determining whether a particu-
lar speech or whether a particular assemblage is pro-
tected by the First Amendment, it is difficult to
provide a concise definition of rights of assembly.
Even in areas where a government entity may restrict
speech or assembly rights, courts are more likely to
find a violation of the First Amendment if speech or
assembly is banned completely. Some restrictions
merely involve the application for a permit or license
to assemble, such as obtaining a license to hold a pa-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 143
rade in a public street. Other time, place, and/or
manner restrictions may also apply.
Content-Based vs. Content-Neutral
Restrictions on Free Speech
The outcome of a First Amendment case may very
well hinge on whether the restriction of speech is
based on the content of the speech. If the restriction
is content-based, courts scrutinize the restriction
under a heightened standard compared with restric-
tions that are content-neutral. When courts apply
this heightened scrutiny, they are more likely to find
a First Amendment violation. Courts also recognize
that content-neutral restrictions may cause as much
or more harm than content-based restrictions. For
example, a ban on all parades on public streets is
much more intrusive than a ban on only some pa-
rades. If a restriction is content-neutral, a court will
employ an intermediate standard of scrutiny.
Determining whether a restriction is content-
neutral or content-based may be more difficult in the
context of assembly rights than in the context of
speech rights. For example, if a city requires that all
groups obtain a permit to hold a parade, the restric-
tion is more likely, at least on its face, to be content-
neutral. However, if the city, through official or unof-
ficial action, only issues permits to certain groups
and restricts issuing permits to other groups, the re-
striction in its application is content-based, not con-
tent neutral.
Public vs. Private Speech
In addition to determining whether a restriction
is content-based or content-neutral, courts also con-
sider whether the speech or assembly is given or
held in a public or private forum. Government prop-
erty that has traditionally been used by the public for
the purpose of assembly and to disseminate ideas is
considered a traditional public forum. Content-based
regulations in a traditional public forum are the most
likely forms of speech to be found in violation of the
First Amendment. Some content-neutral restrictions
on the time, place, and manner of the speech are
permitted, however, even in the traditional public
forum.
Public-owned facilities that have never been desig-
nated for the general use of the public to express
ideas are considered nonforums. Government may
reasonably restrict speech, including some content-
based speech, in these nonforums. This does not
mean that all speech may be restricted on such prop-
erty, but it does mean that speech can be restricted
to achieve a reasonable government purpose and is
not intended to suppress the viewpoint of a particu-
lar speaker.
Some public property that is not a traditional pub-
lic forum may become a designated or limited public
forum if it is opened to the use of the general public
to express ideas. Examples include a senior center
that has been opened for the general public to ex-
press ideas or a state-operated television station
used for political debates. Courts will strictly scruti-
nize content-based restrictions in a designated or
limited public forum when the restriction on speech
is related to the designated public use of the proper-
ty.
Reasonable Time, Place, and Manner
Restrictions
Government entities may make reasonable con-
tent-neutral restrictions on the time, place, and man-
ner of a speech or assemblage, even in a traditional
public forum. This action directly affects the rights of
assembly, since a government entity may restrict the
time and place where an assembly may take place, as
well as the manner in which the assembly occurs.
The restrictions must be reasonable and narrowly tai-
lored to meet a significant government purpose. The
government entity must also leave open ample chan-
nels for communication that interested parties wish
to communicate.
Overbreadth and Vagueness
Statutes and ordinances are often found to in-
fringe on First Amendment rights because they are
unconstitutionally vague or the breadth of the
STATUTE or ORDINANCE extends so far that it infringes
on protected speech. For example, some statutes
and ordinances prohibiting loitering on public prop-
erty have been found to be unconstitutional on the
grounds of overbreadth since some people could be
prosecuted for exercising their protected First
Amendment rights. Similarly, statutes and ordi-
nances restricting speech may be so vague that a per-
son of ordinary intelligence could not determine
what speech was restricted based on a reading of the
law.
CIVIL RIGHTS—ASSEMBLY
144 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Permissible and Impermissible
Restrictions on Rights of Assembly
It is difficult to make general statements about
when assembly rights are guaranteed and when they
are not. Whether assembly is or is not guaranteed de-
pends largely on where and when the assembly takes
place, as well as the specific restrictions that were
placed on this right by government entities.
Speech and Assembly in Public Streets and
Parks
Public streets, sidewalks, and parks are generally
considered public forums, and content-based restric-
tions on these will be strictly scrutinized by the
courts. However, reasonable time, place, and man-
ner restrictions are permitted if they are neutral re-
garding the content of the speech.
The use of public streets, sidewalks, and parks
may not always be considered use of public forums,
which often causes confusion in this area. For exam-
ple, in the 1990 case of United States v. Kokinda, the
Supreme Court held that a regulation restricting use
of a sidewalk in front of a post office was valid be-
cause, in part, that particular sidewalk was not a pub-
lic forum. Similar results have been reached with re-
spect to some public parks.
Parade Permits and Other Restrictions
The right to assemble and hold parades on public
streets is one of the more important rights of assem-
bly. However, these rights must be balanced with the
interests of government entities to maintain peace
and order. The Supreme Court in the 1992 case of
Forsyth County v. Nationalist Movement, held that
a government entity may require permits for those
wishing to hold a parade, march, or rally on public
streets or other public forums. Local officials may not
be given overly broad discretion to issue such per-
mits.
Speech and Assembly in Libraries and
Theaters
The Supreme Court has held that a publicly-
owned theatre is a public forum. Thus, government
may not make content-based restrictions on speech
or assembly in these theaters. However, government
entities may make reasonable time, place, and man-
ner restrictions in publicly-owned theaters. Libraries,
on the other hand, are not considered public forums
and may be regulated ‘‘in a reasonable and nondis-
criminatory manner, equally applicable to all and ad-
ministered with equality to all.’’
Speech and Assembly in Airports and Other
Public Transportation Centers
The Supreme Court has held that airports are not
traditional public forums, so government may make
certain reasonable restrictions on assembly and
speech rights in these areas. Courts have reached dif-
ferent conclusions with respect to other centers of
public transportation, such as bus terminals, railway
stations, and ports.
Picketing and Other Demonstrations
The act of picketing is unquestionably intertwined
with the First Amendment right to peaceful assem-
bly. Courts have often recognized the right to picket
and hold other peaceful demonstrations particularly
in public forums. The right to picket, however, is lim-
ited and depends on the specific activities of the par-
ticipants and the location of the demonstration. For
example, if a demonstration breaches the peace or
involves other criminal activity, law enforcement may
ordinarily end the demonstration in a reasonable
manner. Similarly, a government entity may reason-
ably restrict demonstrations on public streets in resi-
dential areas.
Loitering and Vagrancy Statutes
State and local governments have often sought to
eliminate undesirable behavior by enacting statutes
and ordinances that make loitering a crime. Many of
these statutes have been held to be constitutional,
even those that prohibit being in a public place and
hindering or obstructing the free passage of people.
Such rulings have a significant effect on the rights of
assembly, since these crimes involve a person’s pres-
ence in a certain place, in addition to suspicious be-
havior.
A number of courts have held that specific antilo-
itering statutes and ordinances have been unconsti-
tutional. Some of these decisions are hinged on First
Amendment rights, while others hinge on other
rights, such as Fourth Amendment protections
against unreasonable searches and seizures. Several
of these statutes have been struck down on grounds
of vagueness or overbreadth. Similarly, courts have
struck down statutes and ordinances outlawing
VAGRANCY on the grounds of vagueness or over-
breadth.
Speech and Assembly on Private Property
The general rule is that owners of private property
can restrict speech in a manner that the owner
deems appropriate. Some older cases have held that
private property, such a privately owned shopping
center, could be treated as the equivalent of public
CIVIL RIGHTS—ASSEMBLY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 145
property. However, modern cases have held other-
wise, finding that private property was not subject to
the same analysis regarding First Amendment rights
as public property.
State Laws Affecting Rights of Assembly
Some municipalities in every state require inter-
ested individuals to file for a permit to hold a parade
or other gathering on public property. These ordi-
nances are often the subject of LITIGATION regarding
alleged INFRINGEMENT on First Amendment rights of
peaceful assembly. Antiloitering statutes are also
commonplace, though several of these have been
challenged on First Amendment grounds as well.
Whether a specific ordinance, statute, or official ac-
tion constitutes a violation of the First Amendment
depends largely on the specific facts of the case or
the specific language of the statute or ordinance.
ALABAMA: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. A number of these ordinances have been
attacked on First Amendment grounds, and some or-
dinances have been found to be in violation of First
Amendment rights. The state’s criminal laws prohibit
loitering, including begging and criminal
SOLICITATION.
ARIZONA: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. The state’s criminal laws prohibit loitering,
including begging and criminal solicitation.
ARKANSAS: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. Some of these ordinances have been at-
tacked on First Amendment grounds, and some
ordinances have been found to be in violation of First
Amendment rights. The state’s criminal laws prohibit
loitering.
CALIFORNIA: Several municipalities require that in-
terested parties file for a permit to hold a parade in
public streets. A number of these ordinances have
been attacked on First Amendment grounds, and
some ordinances have been found to be in violation
of First Amendment rights. The state’s criminal laws
prohibit loitering, and these laws have generally
been upheld in First Amendment challenges.
COLORADO: Several municipalities require that in-
terested parties file for a permit to hold a parade in
public streets. A number of these ordinances have
been attacked on First Amendment grounds, and
some ordinances have been found to be in violation
of First Amendment rights. The state requires a per-
mit for parties to use the state capitol building
grounds. The state’s criminal laws prohibit loitering,
including begging and criminal solicitation. The Col-
orado Supreme Court held that the state’s loitering
statute was unconstitutional; this statute was subse-
quently modified.
DELAWARE: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. The state’s criminal laws prohibit loitering,
including begging, criminal solicitation, and loitering
on public school grounds.
FLORIDA: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. The state’s criminal laws regarding loiter-
ing have been the subject of several lawsuits. These
laws make it a crime to loiter or prowl in a place, at
a time or in a manner not usual for a law-abiding indi-
vidual.
GEORGIA: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. A number of these ordinances have been
attacked on First Amendment grounds, and some or-
dinances have been found to be in violation of First
Amendment rights. The state’s criminal laws regard-
ing loitering have been the subject of several law-
suits. These laws make it a crime to loiter or prowl
in a place, at a time, or in a manner not usual for a
law-abiding individual.
HAWAII: Several municipalities require that interest-
ed parties file for a permit to hold a parade in public
streets. The state’s criminal laws prohibit loitering for
solicitation of prostitution.
IDAHO: Several municipalities require that interest-
ed parties file for a permit to hold a parade in public
streets.
ILLINOIS: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets or public assembly. A number of these or-
dinances have been attacked on First Amendment
grounds, and some ordinances have been found to
be in violation of First Amendment rights. The state
statutes permit municipalities to prohibit vagrancy,
and loitering is prohibited in the state by criminal
statute.
INDIANA: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. Criminal gang activity is a separate offense
under state criminal laws.
CIVIL RIGHTS—ASSEMBLY
146 GALE ENCYCLOPEDIA OF EVERYDAY LAW
IOWA: Several municipalities require that interested
parties file for a permit to hold a parade in public
streets. The state provides specific laws prohibiting
loitering and other congregation on election days
near polling places.
KANSAS: Several municipalities require that interest-
ed parties file for a permit to hold a parade in public
streets.
KENTUCKY: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. The state’s criminal laws prohibit loitering
for the purpose of engaging in criminal activity.
LOUISIANA: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. The state’s criminal laws prohibit vagrancy
and loitering, though these statutes have been at-
tacked on First Amendment grounds several times.
MAINE: Several municipalities require that interested
parties file for a permit to hold a parade in public
streets.
MARYLAND: Several municipalities require that in-
terested parties file for a permit to hold a parade or
other public assembly in public streets or areas. The
state’s criminal laws prohibits loitering or loafing
around a business establishment licensed to sell alco-
hol.
MASSACHUSETTS: Several municipalities require
that interested parties file for a permit to hold a pa-
rade in public streets, though a number of these or-
dinances have been the subject to challenges on First
Amendment grounds. The state’s criminal laws pro-
hibit loitering in some specific venues, such as rail-
way centers.
MICHIGAN: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. A number of these ordinances have been
attacked on First Amendment grounds, and some or-
dinances have been found to be in violation of First
Amendment rights.
MINNESOTA: Several municipalities require that in-
terested parties file for a permit to hold a parade,
march, or other form of procession on public streets
and other areas. The state’s criminal laws prohibit va-
grancy, including some instances of loitering.
MISSISSIPPI: Several municipalities require that in-
terested parties file for a permit to hold a parade in
public streets. A number of these ordinances have
been attacked on First Amendment grounds, and
some ordinances have been found to be in violation
of First Amendment rights.
MISSOURI: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. The state’s criminal laws prohibit vagran-
cy, including some instances of loitering.
MONTANA: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. The state’s criminal laws prohibit vagrancy
and loitering around public markets.
NEBRASKA: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. The state’s criminal laws prohibit loitering
in specified venues.
NEVADA: Several municipalities require that interest-
ed parties file for a permit to hold a parade in public
streets. The state’s criminal laws prohibit loitering
around schools and other areas where children con-
gregate. The state permits municipalities to enact or-
dinances to prohibit loitering.
NEW HAMPSHIRE: Several municipalities require
that interested parties file for a permit to hold a pa-
rade in public streets. The state’s criminal laws pro-
hibit loitering and prowling in specified circum-
stances.
NEW JERSEY: Several municipalities require that in-
terested parties file for a permit to hold a parade in
public streets. A number of these ordinances have
been attacked on First Amendment grounds, and
some ordinances have been found to be in violation
of First Amendment rights. The state’s criminal laws
prohibit loitering for the purpose of soliciting crimi-
nal activity or in public transportation terminals.
NEW YORK: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. A number of these ordinances have been
attacked on First Amendment grounds, and some or-
dinances have been found to be in violation of First
Amendment rights. The state has enacted a number
of laws prohibiting loitering, including loitering for
the purpose of soliciting passengers for transporta-
tion, loitering for the purpose of criminal solicitation,
and loitering in public transportation centers. The
statute permits municipalities to enact ordinances
prohibiting loitering. Several of the antiloitering laws
have been the subject of litigation attacking the laws
on First Amendment grounds.
CIVIL RIGHTS—ASSEMBLY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 147
NORTH DAKOTA: Several municipalities require that
interested parties file for a permit to hold a parade
or other processions in public streets.
OHIO: Several municipalities require that interested
parties file for a permit to hold a parade or engage
in the solicitation of business. The state’s criminal
laws prohibit loitering in public transportation cen-
ters and in polling centers during elections.
OKLAHOMA: Several municipalities require that in-
terested parties file for a permit to hold a parade in
public streets. The state’s criminal laws prohibit loi-
tering for the purpose of engaging in specified crimi-
nal acts.
OREGON: Several municipalities require that inter-
ested parties file for a permit to hold a parade in pub-
lic streets. Some municipalities also require a noise
permit when playing amplified noise in a public
place.
PENNSYLVANIA: Several municipalities require that
interested parties file for a permit to hold a parade
in public streets. A number of these ordinances have
been attacked on First Amendment grounds, and
some ordinances have been found to be in violation
of First Amendment rights. The state’s criminal laws
prohibit loitering for the purpose of engaging in
specified criminal acts.
RHODE ISLAND: Several municipalities require that
interested parties file for a permit to hold a parade
in public streets. The state’s criminal laws prohibit
loitering for indecent purposes, loitering in public
transportation centers, and loitering at or near
schools.
SOUTH CAROLINA: Several municipalities require
that interested parties file for a permit to hold a pa-
rade in public streets. The state’s laws prohibit loiter-
ing in public transportation centers.
TENNESSEE: Several municipalities require that in-
terested parties file for a permit to hold a parade on
public streets. The state’s criminal laws prohibit loi-
tering for the purpose of engaging in specified crimi-
nal acts.
TEXAS: Several municipalities require that interested
parties file for a permit to hold a parade on public
streets. The state’s laws prohibit loitering in polling
centers during elections.
UTAH: Several municipalities require that interested
parties file for a permit to hold a parade on public
streets.
VERMONT: The state’s laws prohibit loitering in pub-
lic transportation centers and other public property.
WASHINGTON: Several municipalities require that
interested parties file for a permit to hold a parade
or march on public streets. The state’s laws prohibit
loitering in public transportation centers.
WEST VIRGINIA: Several municipalities require that
interested parties file for a permit to hold a parade
on public streets. The state’s laws prohibit loitering
at or near school property.
WISCONSIN: Several municipalities require that in-
terested parties file for a permit to hold a parade on
public streets. The state’s laws prohibit loitering in
public transportation centers.
Additional Resources
The Constitutional Right of Association. Fellman, David,
University of Chicago Press, 1963.
The First Amendment: A Reader. Garvey, John H., and
Frederick Schaver, West Publishing Co., 1992.
Freedom of Association. Gutman, Amy, Princeton Univer-
sity Press, 1998.
Law and the Company We Keep. Soifer, Aviam, Harvard
University Press, 1995.
The Right of Assembly and Association, Second Revised
Edition. 2nd rev. ed., Abernathy, M. Glenn, University
of South Carolina Press, 1981.
Organizations
American Civil Liberties Union (ACLU)
125 Broad Street, 18th Floor
New York, NY 10004 USA
Phone: (212) 344-3005
URL: http://www.aclu.org/
National Coalition Against Censorship
(NCAC)
275 Seventh Avenue
New York, NY 10001 USA
Phone: (212) 807-6222
Fax: (212) 807-6245
E-Mail: ncac@ncac.org
URL: http://www.ncac.org/
National Freedom of Information Center
(NFOIC)
400 S. Record Street, Suite 240
Dallas, TX 75202 USA
Phone: (214) 977-6658
CIVIL RIGHTS—ASSEMBLY
148 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Fax: (214) 977-6666
E-Mail: nfoic@reporters.net
URL: http://www.nfoic.org/
The Thomas Jefferson Center for the
Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911-8691 USA
Phone: (804) 295-4784
Fax: (804) 296-3621
E-Mail: freespeech@tjcenter.org
URL: http://www.tjcenter.org
Primary Contact: Robert M. O’Neill, Director
CIVIL RIGHTS—ASSEMBLY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 149
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CIVIL RIGHTS
CHILDREN’S RIGHTS
Sections within this essay:
• Background
• Before the Twentieth Century
- Fair Labor Standards Act (FLSA)
• Children’s Rights Violations in the United
States
- Child Labor Violations
- Benefits of Joint Custody
- Children as Detainees
• Convention on the Rights of the Child
• Additional Resources
Background
When people in the United States think of
CHILDREN’S RIGHTS they usually think of children in
third world countries who are victims of abusive
child labor practices or insurmountable poverty.
They may not realize that the rights of children are
violated in the United States as well. Even though
CHILD LABOR LAWS were passed decades ago prohibit-
ing employment of underage youngsters, pockets of
oppressive child labor exist, literally, on American
soil; child farm laborers work long hours in squalid
conditions and often receive half the standard
MINIMUM WAGE. And although numerous studies
show that children do better when two parents are
involved their upbringing, many CUSTODY laws make
it extremely difficult for non-custodial parents to
spend quality time with their children.
To be sure, the United States is still better than
most countries when it comes to how children are
treated. Yet children’s rights is a topic that few peo-
ple know much about. In fact, although many people
know that the United Nations Convention on the
Rights of the Child was formulated in 1989, they are
probably unaware that the United States is one of
two countries (the other is Somalia) that have not
ratified the Convention. The U.S. government has
given what it believes are sound reasons for not hav-
ing ratified the Convention and repeatedly has af-
firmed its commitment to children’s rights in the
United States and abroad. Yet there is no question
that some children do fall into the cracks, and others’
problems are unwisely minimized.
Before the Twentieth Century
It was not uncommon for children to be exploited
before the 1930s. Children routinely worked in haz-
ardous conditions in mills, factories, and sweatshops,
and on farms. They might begin working before they
had reached their tenth birthday, and they received
little in the way of wages. Labor laws did not exist to
protect children or adults, but children were often
subject to more exploitative conditions because they
were easier to manipulate.
The plight of small children did lead to the enact-
ment of some laws, and the federal government tried
in 1918 and agin in 1922, to enact national child labor
laws. Both times, the effort was struck down by the
U.S. Supreme Court, which ruled that it was up to
the individual states to enact child labor legislation.
The Fair Labor Standards Act (FLSA)
In 1938, partly in response to the Great Depres-
sion, Congress passed the FAIR LABOR STANDARDS
ACT (FLSA). This law protected workers from long
GALE ENCYCLOPEDIA OF EVERYDAY LAW 151
hours and unfair pay by establishing a 40-hour work
week and a minimum wage. It also protected chil-
dren from exploitation by establishing that they
would have to be at least 16 to work in most non-
agricultural industries. Younger children could still
work certain jobs provided the hours and wages
were fair. (It was still possible, in other words, for
children to get a newspaper route.) FLSA was chal-
lenged in the courts soon after its passage but its
constitutionality was upheld by the U.S. Supreme
Court in 1941.
Children’s Rights Violations in the United
States
Although the United States does not have the
gruesome record of children’s rights violations that
other countries have, it is not free of violations. Some
are more subtle than others, but they do exist. HUMAN
RIGHTS groups monitor alleged instances of viola-
tions and work to educate the public and the govern-
ment with the goal of correcting the problem.
Child Labor Violations
FLSA protects, among other groups, child labor-
ers. When it was enacted, farming was primarily a
family activity, and it was understood that children
would help on the family farm. Thus, the restrictions
on agricultural work are much less stringent. By the
end of the twentieth century, the number of family
farms had dwindled, and most farming was done on
large commercial establishments. But the lax restric-
tions remained, and farm conglomerates took advan-
tage of this.
Under FLSA, no child under the age of 13 can
work in a nonagricultural setting, and children of 14
and 15 can work but only for a set number of hours
each day. For children working on a farm, the situa-
tion is quite different. Children can go to work in the
fields as young as nine years old in some states, as
long as they have signed parental consent.
Even with the relaxed standards for agricultural
work, children are often overworked, are expected
to work during what would be school hours, and are
paid far less than what is legally required. A report
issued in 2000 by Human Rights Watch noted that
children under the age of 16 are often required to
put in several hours before the school day begins;
during the summer months they may work 12-hour
days.
The dangers of agricultural work are surprisingly
many, and for minors these dangers are even more
troubling. Agricultural workers can be exposed to
pesticides and other chemicals. They may be sent to
work in oppressive heat but without adequate water
to keep from becoming dehydrated. Often, they
work with heavy or dangerous equipment—
equipment that children often have little experience
with. Because they work long hours, often having to
rise before dawn to begin their work, lack of sleep
is a major problem. For children, this is not only
more dangerous, it also curtails their ability to suc-
ceed in school. Injury is common; children can fall
or have accidents with heavy equipment or sharp ob-
jects.
It is important to remember that many adult farm
workers are also exploited, forced to work long
hours for little pay. Often, families are so poor and
desperate that they feel compelled to give their
young children permission to work on the farm, thus
bringing in a small but needed amount of extra
money.
Organizations such as Human Rights Watch have
urged the U.S. government to revise FLSA to offer ad-
ditional protection to minor children working on
farms, and to ensure that farms are more careful
about whom they hire and also more diligent about
improving working conditions and wages.
Benefits of Joint Custody
DIVORCE was less common before 1970 than it was
by the end of the twentieth century, but children
whose parents divorced were likely to be placed in
the custody of one parent. The other parent might
get visitation rights, but these were usually limited.
For children whose parents are both loving and re-
sponsible but no longer married to each other, this
can be emotionally devastating.
The concept of joint custody was developed in
the early 1970s to REDRESS this imbalance. In 1973,
Indiana passed the first state joint custody STATUTE
in the United States. As of 2002, all states have a joint
custody statute on the books. There are two types of
joint custody. In Joint legal custody both parents
share decision-making responsibility. In Joint physi-
cal custody children spend almost an equal amount
of time with each parent. Unfortunately, joint custo-
dy is still not particularly common. In some cases, of
course, there are MITIGATING CIRCUMSTANCES. One
parent may have abandoned the family or may have
verbally, physically, or even sexually abused the chil-
dren in question. But for the average parent, who
wants what is best for the child but is no longer able
to see the child except for brief visits, the issue is one
CIVIL RIGHTS—CHILDREN’S RIGHTS
152 GALE ENCYCLOPEDIA OF EVERYDAY LAW
of fairness to that parent as well as the child. The ma-
jority of non-custodial parents are fathers.
According to statistics released by the U.S. Depart-
ment of Health and Human Services in 1999, chil-
dren who do not live with both parents are twice as
likely to drop out of school, twice as likely to end up
in jail, and four times as likely to need help for behav-
ioral or emotional problems. Organizations such as
the Children’s Rights Council (CRC) raised the level
of awareness on this issue to the point that joint cus-
tody, both legal and physical, became more com-
mon.
Children as Detainees
Illegal ALIENS who try to enter the United States
may be detained and deported. This is true whether
the aliens are adults or children. In 2000, nearly 4,700
children were detained by the U.S. IMMIGRATION and
Naturalization Service (INS). Children are detained
by INS after being picked up at U.S. borders without
a parent or GUARDIAN and without proper documen-
tation. The issue with these children is not that they
are stopped from entering the United States illegally,
but that they are held in such facilities as juvenile and
county jails. Moreover, they face DEPORTATION, often
to countries where they may be persecuted. They
have no right to paid legal COUNSEL. Reports that
some who are detained in jails are mistreated has led
human rights organizations to call for investigations.
In 2001 U.S. Senator Dianne Feinstein introduced
the Unaccompanied Alien Child Protection Act,
which would establish an Office of Children’s Service
at the U.S. Department of Justice. This office would
be in charge of ensuring that children are treated hu-
manely while in custody and that decisions on their
future would be made based on their short- and
long-term needs. It would also provide for legal
counsel and guardians, as necessary, to be appointed
to represent the children’s interests.
Convention on the Rights of the Child
In an effort to create a universally accepted set of
children’s rights, the United Nations General Assem-
bly adopted the Convention on the Rights of the
Child in November 1989. This document promises
children the basic human rights of life and liberty, as
well as access to education and health care. It also
calls for protection against DISCRIMINATION and
abuse, protection from economic exploitation, and
protection against torture.
While children’s rights have become more visible
since then, there are still many instances around the
world of children’s rights violations.
The United States did sign the Convention in 1995
but it was never submitted to the Senate for
RATIFICATION. Although the government has stated
that it has no intention of ratifying the Convention,
it has consistently reaffirmed its commitment to chil-
dren’s rights.
Among the reason the United States has failed to
ratify the Convention is the fact that the Convention
clearly states that anyone under the age of 18 is a
child. The U.S. government has reservations about
how that would affect matters when a 16- or 17-year
old commits a crime; currently, in certain instances
that child can be tried as an adult. Also, the United
States Government says that many of the declara-
tions included in the document are not issues for
which the federal government is in charge. For exam-
ple, education in the United States is controlled by
the states, not the federal government.
Whether the United States eventually ratifies the
Convention, it still does maintain an enviable record
of honoring most children’s rights. Human rights
groups are convinced that the United States can and
should do more, and they continue to make their
points of view known in the United States and
abroad.
Additional Resources
The Child Advocacy Handbook. Fernandez, Happy Cra-
ven, Pilgrim Press, 1980.
Children’s Rights: A Reference Handbook. Edmonds, Bev-
erly C., and William R. Fernekes, ABC-CLIO, 1996.
Children’s Rights in the United States: In Search of a Na-
tional Policy. Walker, Nancy E., Catherine M. Brooks,
and Lawrence S. Wrightsman, Sage Publications, 1999.
The Children’s Rights Movement: A History of Advocacy
and Protection. Hawes, Joseph M., Twayne Publishers,
1991.
What Are My Rights? Ninety-Five Questions and Answers
about Teens and the Law. Jacobs, Thomas A., Free
Spirit Publications, 1997.
Organizations
Amnesty International USA
322 Eighth Avenue
New York, NY 10001 USA
CIVIL RIGHTS—CHILDREN’S RIGHTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 153
Phone: (212) 807-8400
Fax: (212) 627-1451
URL: http://www.aiusa.org
Primary Contact: Bill Schulz, Executive Director
Children’s Rights Council
6200 Editors Park Drive, Suite 103 Avenue
Hyattsville, MD 20782 USA
Phone: (301) 559-3120
Fax: (301) 559-3124
URL: http://www.gocrc.com
Primary Contact: David L. Levy, President
Human Rights Watch
350 Fifth Avenue
New York, NY 10118 USA
Phone: (212) 490-4700
Fax: (212) 736-1300
URL: http://www.hrw.org
Primary Contact: Kenneth Roth, Executive Director
United Nations Children’s Fund (UNICEF)
3 United Nations Plaza
New York, NY 10017 USA
Phone: (212) 326-7000
Fax: (212) 887-7465
URL: http://www.unicef.org
Primary Contact: Carol Bellamy, Executive Director
United States Department of Justice, Civil
Rights Division
950 Pennsylvania Avenue NW
Washington, DC 20530 USA
Phone: (202) 514-2648
Phone: (800) 375-5283
Fax: (202) 514-1776
URL: http://www.usdoj.gov
Primary Contact: Ralph L. Boyd, Jr., Assistant
Attorney General
CIVIL RIGHTS—CHILDREN’S RIGHTS
154 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CIVIL RIGHTS
FIREARM LAWS
Sections within this essay:
• Background
• Acquisition and Possession of Firearms
- Eligibility to Purchase or Own a Fire-
arm
- Acquiring Firearms
- Antique Firearms
- Prohibited Firearms
- Shipping Firearms
- Transporting Firearms in Automo-
biles
- Transporting Firearms on Aircraft
- Transporting Firearms on Other
Commercial Carriers
- Ammunition
- Firearms in National and State Parks
- Hunters
• State and Local Restrictions on the Transpor-
tation of Firearms
• Special Rules Governing Traveling with Fire-
arms in Other Countries
• Additional Resources
Background
The Second Amendment of the BILL OF RIGHTS
provides: ‘‘A well regulated MILITIA, being necessary
to the security of the free State, the right of the peo-
ple to keep and bear Arms, shall not be infringed.’’
The Supreme Court has historically defined the Sec-
ond Amendment as giving states the right to main-
tain a militia separate from a federally controlled
army. Courts have consistently held that the state
and federal governments may lawfully regulate the
sale, transfer, receipt, possession, and use of certain
categories of firearms, as well as mandate who may
and may not own a gun. As a result, there are numer-
ous federal, state, and local laws in existence today,
through which a person must navigate in order to
lawfully possess a firearm.
There were relatively few laws passed regarding
GUN CONTROL prior to the twentieth century, and in
fact, most legislation has been passed in the last fifty
years.
• The National Firearms Act of 1934 was
passed to hinder machine guns and sawed-
off shotguns.
• The Firearms Act of 1938 provided for feder-
al licensing of firearms dealers, regulated
firearms transportation across state lines by
dealers, outlawed the transportation of
stolen guns with the manufacturer’s mark
eradicated or changed, and outlawed fire-
arms from being carried by fugitives, indict-
ed defendants or convicted felons.
• The National Firearms Act was later amend-
ed significantly by the Gun Control Act of
1968, putting more stringent control on li-
censed sales, buyer requirements, and the
importation of sporting guns.
• The Undetectable Firearms Act of 1988
banned plastic and other undetectable guns,
prompted by the fear of hijacking.
• The Crime Act of 1994 banned the sale and
possession of 19 assault-type firearms and
GALE ENCYCLOPEDIA OF EVERYDAY LAW 155
certain high-capacity ammunition maga-
zines.
• The Gun-Free School Zone Act of 1990 out-
lawed the knowing possession of firearms in
school zones, and made it a crime to carry
unloaded firearms within 1,000 feet of the
grounds of any public or private school. The
law was later held unconstitutional in 1995,
in United States vs. Lopez.
• The 1982 assassination attempt on President
Ronald Reagan resulted in the Brady Hand-
gun Violence Prevention Act of 1993. The
Brady Bill imposed a five-day waiting period
before a handgun could be taken home by
a buyer. Though the law also mandated that
local law enforcement officers conduct back-
ground checks on prospective handgun pur-
chasers buying from federally licensed deal-
ers, this part of the law was struck down by
the Supreme Court in 1997 in Printz vs. Unit-
ed States as unconstitutional.
Depending on where one lives, a person may only
be forbidden to carry a concealed weapon, or may be
forbidden to own a handgun at all. People who dis-
obey or are not aware of the laws pertaining to fire-
arms in their local areas and in areas to which they
travel may be subject to tough criminal prosecution.
It is therefore best to be familiar with the local and
national laws before owning a firearm.
Acquisition and Possession of Firearms
Eligibility to Purchase or Own a Firearm
In general, if you are twenty-one years of age or
older, you can purchase a firearm from a federally li-
censed dealer licensed to sell in your state. For the
purchase of a rifle or shotgun, you need to be eigh-
teen years or older and may purchase in any state.
However, the following classes of people are ineli-
gible to possess, receive, ship, or transport firearms
or ammunition:
• Those convicted of crimes punishable by
IMPRISONMENT for over one year, except state
misdemeanors punishable by two years or
less
• Fugitives from justice
• Unlawful users of certain depressant, narcot-
ic, or stimulant drugs
• Those deemed legally as incompetent and
those committed to mental institutions
• Illegal aliens
• Citizens who have renounced their citizen-
ship
• Those persons dishonorably discharged
from the armed services
• Persons less than eighteen years of age for
the purchase of a shotgun or rifle
• Persons less than twenty-one years of age for
the purchase of a firearm that is other than
a shotgun or rifle
• Persons subject to a court order that re-
strains such persons from harassing,
STALKING, or threatening an intimate partner
• Persons convicted in any court of a
MISDEMEANOR crime of domestic violence
Under limited conditions, exceptions may be grant-
ed by the U.S. Secretary of the Treasury, or through
a PARDON, restoration of rights, or setting aside of a
CONVICTION.
Acquiring Firearms
Once a person has made the decision to purchase
a gun, a federally licensed dealer will fill out a federal
form 4473, which requires identifying and other in-
formation about the buyer, and record the make,
model, and serial number of the firearm. There is a
five-day waiting period during which a background
check is run for any information that may disqualify
the buyer from owning a firearm. The buyer may pur-
chase the firearm only after the application is ap-
proved.
It is unlawful for an individual to purchase a fire-
arm through mail-order from another state. Only li-
censed dealers are allowed to purchase firearms
across state lines from other licensed dealers.
Provided that all other laws are complied with, a
person may temporarily borrow or rent a firearm for
lawful sporting purposes throughout the United
States.
Antique Firearms
Antique firearms and replicas are exempted from
the above restrictions. Antique firearms are any fire-
arms manufactured in or before 1898 (including any
firearms with a matchlock, flintlock, percussion cap,
or similar type of ignition system). Also, any replica
of an antique firearm qualifies if the replica is not de-
signed or redesigned for using rimfire or convention-
al centerfire ammunition; if the replica uses fixed am-
CIVIL RIGHTS—FIREARM LAWS
156 GALE ENCYCLOPEDIA OF EVERYDAY LAW
munition which is no longer manufactured in the
United States and which is not readily available; if the
replica is of any muzzle loading rifle, shotgun, or pis-
tol, which is designed to use black powder or a black
powder substitute and which cannot use fixed am-
munition. (Note: Antiques exemptions vary consider-
ably under state laws).
Prohibited Firearms
The 1994 Omnibus Crime Bill included a provi-
sion that prohibited the manufacture and sale to
non-military and police, after Sept. 13, 1994, of semi-
automatic rifles equipped with detachable magazines
and two or more of the following: bayonet lugs, flash
suppressors, protruding pistol grips, folding stocks
or threaded muzzles. There are similar guidelines on
handguns and shotguns. Additionally, the manufac-
ture and sale to non-military or police of ‘‘large-
capacity’’ ammunition magazines (holding more
than 10 rounds) were also outlawed. ‘‘Assault weap-
ons’’ and ‘‘large’’ magazines manufactured before
Sept. 13, 1994, are exempt from the law.
Shipping Firearms
Personally owned rifles and shotguns may be
mailed or shipped only to dealers or manufacturers
for any lawful purpose, including sale, repair, or cus-
tomizing. A person may not ship a firearm to another
private individual across state lines. Handguns may
not be mailed but may be otherwise shipped to deal-
ers or manufacturers for any lawful purpose. Ship-
ping companies must be notified in writing of the
contents of any shipments containing firearms or
ammunition.
Transporting Firearms in Automobiles
Under federal law, a person is allowed to transport
a firearm across state lines from one place where it
is legal to possess firearms to another place where
it is legal to possess firearms. The firearm must be
unloaded and in the trunk of a vehicle. If the vehicle
has no trunk the firearm must be unloaded and in a
locked container (not the glove compartment or
console). This federal law overrides state or local
laws.
Many states have laws governing the transporta-
tion of firearms. Also, many cities and localities have
ordinances restricting their transportation. Travelers
must be aware of these laws and comply with the
legal requirements in each JURISDICTION. There is no
uniform state transportation procedure for firearms.
Once you reach your destination, the state law—or,
in some areas, municipal law—will control the own-
ership, possession, and transportation of your fire-
arms.
It must be stressed that as soon as any firearm—
handgun, rifle, or shotgun—is carried on or about
the person, or placed in a vehicle where it is readily
accessible, state and local firearms laws dealing with
carrying come into play. If a person wishes to trans-
port firearms in such a manner, it is advisable that he
become aware of local laws by contacting the Attor-
ney General’s office in each state through which he
may travel, or by reviewing an NRA State Firearms
Law Digest. He should determine whether a permit
is needed and how to obtain one. While many states
require a permit for this type of carrying, most will
not issue such permits to non-residents, and other
prohibit such carrying altogether.
Transporting Firearms on Aircraft
Federal law prohibits the carrying of any firearm,
concealed or unconcealed, on or about the person
or in carry-on baggage while aboard an aircraft. Un-
loaded firearms not accessible to the passenger while
aboard the aircraft are permitted when:
1. The passenger has notified the airline
when checking the baggage that the fire-
arm is in the baggage and that it is unload-
ed.
2. The baggage is which the firearm is carried
is locked and only the passenger checking
the baggage retains a key.
3. The baggage is carried in an area—other
than the flight crew compartment—that is
inaccessible to passenger.
Transporting Firearms in Other Commercial
Carriers
Any passenger who owns or legally possesses a
firearm being transported aboard any common or
contract carrier in interstate or foreign commerce
must deliver the unloaded firearm into the CUSTODY
of the pilot, captain, conductor, or operator of such
common or contract carrier for the duration of the
trip. Check with each carrier before your trip to avoid
problems.
Bus companies usually refuse to transport fire-
arms. Trains usually allow the transportation of en-
cased long guns if they are disassembled or the bolts
removed.
Ammunition
Ammunition may be bought or sold without re-
gard for state BOUNDARIES. Ammunition shipments
CIVIL RIGHTS—FIREARM LAWS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 157
across state lines by commercial carriers are subject
to strict explosives regulations. As with firearms,
shipments of ammunition must be accompanied by
a written notice of the shipment’s contents.
It is illegal to manufacture or sell armor-piercing
handgun ammunition.
Firearms in National and State Parks
Generally, firearms are prohibited in national
parks. If you are transporting firearms, you must no-
tify the ranger or gate attendant of this fact on your
arrival and your firearm must be rendered ‘‘inopera-
ble’’ before you enter the park. The National Park
Service defines ‘‘inoperable’’ to mean unloaded,
cased, broken down if possible, and out of sight. In-
dividuals in possession of an operable firearm in a na-
tional park are subject to arrest. Again, rules in vari-
ous state park systems vary, so inquiry should be
made concerning the manner of legal firearms pos-
session in each particular park system.
Hunters
In many states, game wardens strictly enforce reg-
ulations dealing with the transportation of firearms
during hunting season. Some states prohibit the car-
rying of uncased long guns in the passenger com-
partment of a vehicle after dark. For up-to-date infor-
mation on these regulations, it is advisable to contact
local fish and game authorities.
State and Local Restrictions on the
Possession and Transportation of
Firearms
Be sure to check with the local authorities outside
your home state for a complete listing of restrictions
on carrying concealed weapons in that state. Many
states restrict carrying in bars, restaurants (where al-
cohol is served), establishments where packaged al-
cohol is sold, schools, colleges, universities, church-
es, parks, sporting events, correctional facilities,
courthouses, federal and state government offices/
buildings, banks, airport terminals, police stations,
polling places, any posted private property restrict-
ing the carrying of concealed firearms, etc. In addi-
tion to state restrictions, federal law prohibits carry-
ing on military bases, in national parks and the sterile
area of airports. National forests usually follow laws
of the states in which they are located.
The following states and cities have special laws
governing the possession and transportation of fire-
arms by non-residents. Travelers should contact the
appropriate government departments for more in-
formation prior to traveling:
ARKANSAS: A license to carry a firearm concealed is-
sued to a non-resident by another state will be hon-
ored if such state provides a reciprocal privilege.
CALIFORNIA: Before entering the state, a California
permit and registration may first need to be obtained
for certain semi-automatic rifles, certain semi-
automatic pistols, certain shotguns, and any other
firearm which is deemed an ‘‘assault weapon.’’ Con-
tact the California Department of Justice in Sacra-
mento for additional information.
CONNECTICUT: A permit is required to carry a hand-
gun in a vehicle. Nonresidents may carry handguns
in or through the state for the purpose of taking part
in firearms competitions or exhibitions, provided
they are residents of the United States and have valid
permits-to-carry issued by any other states or locali-
ties. No permit is required when changing resi-
dences, provided the handgun is unloaded and
cased or securely wrapped. An ‘‘assault weapon’’ is
defined as any selective-fire firearm capable of fully
automatic, semi-automatic or burst fire at the option
of the user, or any one of over five dozen specified
semi-automatics. A person who has been issued a
Connecticut certificate of possession of an ASSAULT
weapon may possess it only under certain condi-
tions.
DISTRICT OF COLUMBIA: Transportation of fire-
arms through the city is not permitted unless the
travel is to or from lawful recreational firearm-related
activity. Firearms transported for this purpose
should be carried in accordance with the general
rule.
FLORIDA: This state issues a non-resident concealed
carry permit. Contact the Department of State, Divi-
sion of Licensing.
GEORGIA: A license to carry a firearm concealed is-
sued to a nonresident by another state shall be hon-
ored if such state provides reciprocal privilege.
HAWAII: Registration is required of all firearms and
ammunition with the county chief of police within 72
hours of arrival on the islands. Rifles or shotguns may
be transported for target shooting at a range or hunt-
ing provided they are unloaded and cased or secure-
ly wrapped. If they are transported for hunting, valid
state hunting licenses must be procured. Handgun
transportation is limited to one’s place of sojourn or
between the place of sojourn and a target range or
CIVIL RIGHTS—FIREARM LAWS
158 GALE ENCYCLOPEDIA OF EVERYDAY LAW
going to or from a place of hunting. The handgun
must be unloaded and securely wrapped or cased.
IDAHO: A license to carry a firearm concealed issued
to a nonresident by another state shall be honored.
ILLINOIS: A nonresident is permitted to transport a
firearm provided it is unloaded, enclosed in a case,
and not easily accessible. A nonresident may possess
an operable firearm for licensed hunting, or at a De-
partment of Law Enforcement recognized target
shooting range or gun show.
CHICAGO: Chicago requires all firearms pos-
sessed in the city to be registered. Handguns
not previously timely registered in Chicago
cannot be registered. Oak Park, Evanston, Mor-
ton Grove, Highland Park, Wilmette and Win-
netka prohibit the possession of a handgun.
Firearms may be transported under the general
rule through Chicago for lawful recreational
firearm-related activities.
INDIANA: A carrying permit is required to transport
a handgun in a vehicle. Nonresidents are ineligible
for permits, however, permits from other states are
recognized. Transportation of unloaded handguns
during a change of residence is exempted. A hand-
gun must be securely wrapped and kept in the trunk
or storage area of the car during transportation.
KENTUCKY: A license to carry a firearm concealed is-
sued to a nonresident by another state is honored if
such state provides reciprocal privilege.
MAINE: A nonresident concealed carry permit may
be obtained from the Chief of State Police.
MARYLAND: The unlicensed transportation of hand-
guns in vehicles is prohibited, except for a variety of
lawful purposes, including target shooting. A hand-
gun must be transported unloaded and in an en-
closed case or holster with a strap.
MASSACHUSETTS: Nonresidents are allowed to
bring personally owned handguns into the Common-
wealth for competition, exhibition or hunting. If the
handgun is for hunting, a valid hunting license must
be procured. Furthermore, the handgun owner must
have a valid carrying permit from another state and
that state’s permit requirements must be the same
as in Massachusetts. A person who does not meet
these requirements must obtain a temporary hand-
gun permit from the Department of Public Safety.
A nonresident may transport rifles and shotguns
into or through Massachusetts if the guns are unload-
ed, cased, and locked in the trunk of a vehicle.
A nonresident may physically possess an operable
rifle or shotgun while hunting with a Massachusetts
license, while on a firing range, while at a gun show,
or if the nonresident has a permit to possess any fire-
arm in his home state..
A special caution, however, is in order. Massachu-
setts has enacted one of the most restrictive gun laws
in the nation, imposing a mandatory one year jail
sentence for anyone illegally possessing a firearm,
loaded or unloaded, ‘‘on his person or under his
control in a vehicle.’’ In all cases, all firearms must be
transported as prescribed in the general rule.
BOSTON: Under a vague law, it is unlawful to
possess, display, transfer or receive any shot-
gun with a capacity exceeding 6 rounds; a semi-
automatic rifle with a magazine exceeding 10
rounds; any SKS, AK-47, Uzi, AR-15, Steyr AUG,
FN-FAL, or FN-FNC rifle; any semi-automatic
pistol which is a modification of a proscribed
rifle or shotgun; and any magazine or belt
which holds more than 10 rounds. An ‘‘assault
weapons roster board’’ may add additional fire-
arms to the list of assault weapons. For owners
to continue possession of such firearms, a li-
cense/registration must have been obtained
from the Boston Police Commissioner within
90 days of the effective date of the law (12/9/89)
or within 90 days of the addition of the firearm
to a roster of assault weapons. Otherwise a li-
cense/registration cannot be obtained.
The provision does not apply to possession by
a nonresident of Boston at a sporting or shoot-
ing club, to a person with a Massachusetts li-
cense to carry a pistol, or to a person taking
part in competition, at a collectors’ exhibit or
meeting, traveling to or from such an event, or
while in transit through Boston for the purpose
of licensed hunting, provided that in all cases
the weapon is unloaded and packaged and the
person has a Massachusetts firearm identifica-
tion card or has a license or permit to carry or
possess firearms issued by another state.
MICHIGAN: This state requires a carrying permit to
transport a handgun in a vehicle. Nonresidents are
ineligible for permits, however, Michigan does recog-
nize carrying permits from other states. Exempt from
the Michigan permit requirements are hunters with
valid Michigan hunting licenses and individuals with
proof of membership in organizations with handgun
shooting facilities in the state, provided the hand-
guns are unloaded, in containers, and locked in vehi-
CIVIL RIGHTS—FIREARM LAWS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 159
cle storage areas. Michigan exempts transportation
of unloaded handguns in containers during a change
of residence.
MISSISSIPPI: A license to carry a firearm concealed
issued to a nonresident by another state shall be
honored if such state provides a reciprocal privilege.
MISSOURI: Allows carrying a firearm concealed while
traveling in a continuous journey peaceably through
the state.
NEW HAMPSHIRE: A license to carry a firearm con-
cealed issued to a nonresident by another state shall
be honored if such state provides a reciprocal privi-
lege.
NEW JERSEY: A firearm is not permitted to be trans-
ported through the state unless the owner of pos-
sesses a Firearms Identification Card. Exceptions to
this prohibition are: a person traveling to and from
a target range or to and from hunting, provided the
individual has obtained a valid state hunting license,
and ‘‘between one place of business or residence
and another when moving.’’ In any event, the gener-
al rule should be followed.
New Jersey lists more than four dozen specified
firearms as ‘‘assault firearms.’’ An assault firearm is
defined as any semi-automatic rifle with a fixed maga-
zine capacity exceeding 15 rounds, and any semi-
automatic shotgun with either a capacity exceeding
6 rounds, an accentuated pistol grip, or a folding
stock. Possession of such a firearm requires registra-
tion and a New Jersey license. Any ammunition mag-
azine capable of holding more than 15 rounds may
only be possessed for a registered and licensed as-
sault firearm.
NEW YORK: The transportation of handguns is pro-
hibited except by a resident with a license to carry.
A member or coach of an accredited college or uni-
versity target pistol team may transport a handgun
into or through New York to participate in a colle-
giate, Olympic or target pistol shooting competition
provided that the handgun is unloaded and carried
in a separate locked container.
A nonresident target shooter may enter or pass
through New York State with handguns for purposes
of any NRA-approved competition if the competitor
has in his possession a copy of the match program,
proof of entry, and a pistol license from his state of
residence. The handgun must be unloaded and
transported in a fully opaque container.
New York has strict laws governing illegal posses-
sion of handguns which can result in a possible
seven-year jail sentence for offenders.
A special caution: New York law presumes that an
individual stopped in possession of five or more
handguns without a state permit possesses the hand-
guns for illegal sale, thus subjecting this person to an
increased sentence.
New York is the only state in the Union that pro-
hibits the transportation of handguns without a li-
cense. Citizens should therefore be particularly care-
ful since they face sever consequences should they
inadvertently violate the state’s myriad, technical,
anti-gun provisions.
NEW YORK CITY: A city permit is required for
possession and transportation of handguns
and long guns. New York State handgun per-
mits are invalid within the city limits; however,
New York State residents may transport their
licensed handguns unloaded through the city
if these are locked in a container and the trip
is continuous. Long guns may be kept in the
city for only 24 hours wile in transit and must
be unloaded and stored in a locked container
or vehicle trunk.
New York City forbids possession of an ‘‘assault
weapon,’’ which includes various specific semi-
automatic rifles and shotguns or revolving cyl-
inder shotguns. It is unlawful to possess an
‘‘ammunition feeding device’’ capable of hold-
ing more than 17 rounds in a handgun, or more
than 5 rounds in a rifle or shotgun. In all cases,
the general rule should be observed. The New
York State law on illegal possession applies to
the city as well.
OHIO: Some units of local government, e.g. Brook-
lyn, Cincinnati, Cleveland, Columbus, and Dayton,
forbid the possession of certain semi-automatic fire-
arms and specified shotguns.
OKLAHOMA: A license to carry a firearm concealed
issued to a nonresident by a state shall be honored
if it has similar requirements to that of Oklahoma.
PENNSYLVANIA: A permit is required to carry a hand-
gun in a vehicle. Permits are available to nonresi-
dents and may be obtained from any county sheriff
or chief of police in the major cities. An unloaded,
securely wrapped handgun may be carried without
a license when changing residences, when going to
or from target practice, or to or from one’s home to
a vacation or recreational home.
CIVIL RIGHTS—FIREARM LAWS
160 GALE ENCYCLOPEDIA OF EVERYDAY LAW
RHODE ISLAND: A permit is required to transport a
handgun. There are three exceptions to this require-
ment: (1) A person licensed to carry in another state
may transport a handgun during an uninterrupted
journey across the state; (2) A person may carry with-
out a permit an unloaded, securely wrapped, and, if
possible, broken down handgun to and from a target
range; or (3) An individual can transport a handgun,
under the previous conditions, without a permit dur-
ing a change of residence.
SOUTH CAROLINA: A valid out-of-state permit to
carry concealed weapons held by a resident of a re-
ciprocal state will be honored.
TENNESSEE: A handgun permit or license issued in
another state is valid in this state, according to its
terms, if the licensing state provides a reciprocal priv-
ilege. The Commissioner of Safety is the sole judge
of whether the eligibility requirements in another
state are substantially similar to the requirements in
this state.
TEXAS: A nonresident can apply for a concealed
handgun license if he is licensed in his home state,
the home state’s licensing requirements are as rigor-
ous as those in Texas, and the home state allows a
person with a Texas license to apply for a license
there.
VERMONT: No permit is required to carry a con-
cealed weapon.
VIRGINIA: The Attorney General may enter into reci-
procity agreements with other states providing for
the mutual recognition of each state’s licensing sys-
tem.
WEST VIRGINIA: A license to carry a firearm con-
cealed issued to a nonresident by another state shall
be honored if such state provides reciprocal privi-
lege.
WYOMING: A license to carry a firearm concealed is-
sued to a nonresident by another state shall be hon-
ored.
Special Rules Governing Traveling with
Firearms in Other Countries
Most countries have special laws governing the
possession and transportation of firearms by nonres-
idents, and in many countries individual possession
of firearms is illegal. Travelers should contact the ap-
propriate government departments to learn about
the laws prior to traveling. All firearms must be de-
clared and registered with United States Customs on
form 4457 or any other registration document when
bringing the same firearms back into the United
States.
The following are summaries for Canada and Mex-
ico:
CANADA: Canada has very strict laws governing
transportation of handguns and ‘‘military type’’ long
guns. United States citizens may bring ‘‘sporting’’ ri-
fles and shotguns into Canada. These must be de-
clared to Customs officials when entering Canada.
Handguns and other restricted weapons may be
brought into Canada if a permit to transport has first
has been obtained from Canadian authorities. The
permit is issued by a local registrar of firearms in a
province for a limited period of time. The head of the
provincial police can provide information as to
where one is located. More information can be ob-
tained from the Canadian Firearms Centre via the In-
ternet at www.cfc-ccaf.gc.caor by calling the Canadi-
an Firearms Centre information line.
MEXICO: Bringing firearms into Mexico is severely
restricted. Mexico allows bringing 2 sporting rifles or
shotguns of an acceptable caliber and 50 rounds of
ammunition for each for hunting. First, a tourist per-
mit must be obtained from the Mexican Consulate
having jurisdiction over the area where the visitor re-
sides. Mexican IMMIGRATION officials will place a fire-
arms stamp on this permit at the point of entry. A
certificate of good conduct issued by the prospective
hunter’s local police department, proof of citizen-
ship, a PASSPORT, five passport size photos, a hunting
services agreement with the Mexican Secretary of
Urban Development and Ecology (issued by a Mexi-
can Forestry and Wildlife Office), and a military per-
mit (issued by the Military Post and valid for only 90
days) are all required to be in the hunter’s posses-
sion while carrying the firearms. For additional infor-
mation, contact the Mexican Embassy or Consular
Office.
Additional Resources
Encyclopedia of Gun Control and Gun Rights. Glen H.
Utter, Oryx Press, 1999.
Gun Rights Factbook. Alan M. Gottlieb, Merrill Press, 1998.
Gun Laws of America: Everyday Federal Gun Law on the
Books, with Plain English Summaries, Third Edition.
Michael P. Anthony and Alan Korwin, Bloomfield Press,
1999.
CIVIL RIGHTS—FIREARM LAWS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 161
http://www.nraila.org. ‘‘Firearm Laws’’ National Rifle Asso-
ciation Institute for Legislative Action, 2000.
U.S. Code, Title 18: Crimes and Criminal Procedure, Part
I: Crimes, Chapter 44: Firearms. U.S. House of Repre-
sentatives, 1999. Available at http://uscode.house.gov/
title_18.html.
Organizations
Center to Prevent Handgun Violence (CPHV)
1225 Eye St. NW, Ste, 1100
Washington, DC 20005 USA
Phone: (202) 289-7319
Fax: (202) 408-1851
URL: http://w ww.cphv.org
Primary Contact: Sarah Brady, Chairperson
Citizens Committee for the Right to Keep and
Bear Arms (CCRKBA)
Liberty Park
12500 NE 10th Pl.
Bellevue, WA 98005 USA
Phone: (425) 454-4911
Fax: (425) 451-3959
E-Mail: info @ccrkba.org
URL: http://www.ccrkba.org
Primary Contact: Joe Waldron, Executive Director
Gun Owners Action Committee (GOAC)
862 Granite Circle
Anaheim, CA 92806 USA
Phone: (714) 772-4867
Fax: (714) 772-4867
E-Mail: goac @ix.netcom.com
Primary Contact: T. J. Johnston, Executive Officer
Gun Owners Incorporated (GOI)
10100 Fair Oaks Blvd., Ste. I
Fair Oaks, CA 95628 USA
Phone: (916) 967-4970
Fax: (916) 967-4974
E-Mail: guno wnca@aol.com
URL: http://www.gunownersca.com
Primary Contact: Sam Paredes, Contact
National Association to Keep and Bear Arms
(NAKBA)
PO Box 234
Maple Valley, WA 98038-0234 USA
Primary Contact: Ted Cowan, Secretary-Treasurer
National Rifle Association of America (NRA)
11250 Waples Mill Rd.
Fairfax, VA 22030 USA
Phone: (703) 267-1000
Fax: (703) 267-3989
Toll-Free: 800-672-3888
E-Mail: comm@nrahq.org
URL: http://www.nra.org
Primary Contact: Wayne R. LaPierre, Jr., Executive
Vice President
Second Amendment Foundation (SAF)
12500 NE 10th Pl.
Bellevue, WA 98005 USA
Phone: (206) 454-7012
Fax: (206) 451-3959
Toll-Free: 800-426-4302
URL: http://www.saf.org
Primary Contact: Joseph P. Tartaro, President
CIVIL RIGHTS—FIREARM LAWS
162 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CIVIL RIGHTS
FREE SPEECH/FREEDOM OF EXPRESSION
Sections within this essay:
• Background
• The Law Protecting Freedom of Expression
- Core Political Speech
- Speech that Incites Illegal or Subver-
sive Activity
- Fighting Words
- Obscenity and Pornography
- Symbolic Expression
- Commercial Speech
- Freedom of Expression in Public
Schools
• State Law Protecting Free Expression
• Additional Resources
Background
FREEDOM OF SPEECH and freedom of expression
are among the freedoms most cherished by Ameri-
cans. Protected by the First Amendment to the U. S.
Constitution and miscellaneous state constitutional
provisions, these two freedoms were also among the
freedoms deemed most important by the Founding
Fathers. Democratic societies by definition are par-
ticipatory and deliberative. They are designed to
work best when their representative assemblies con-
duct informed deliberation after voters voice their
opinions about particular issues or controversies.
But neither elected representatives nor their constit-
uents can fully discharge their democratic responsi-
bilities if they are prevented from freely exchanging
their thoughts, theories, suspicions, beliefs, and
ideas, or are hindered from gaining access to rele-
vant facts, data, or other kinds of useful information
upon which to form their opinions.
The theory underlying the Free Speech Clause of
the First Amendment is that truthful and accurate in-
formation can only be revealed through robust and
uninhibited discourse and that the best way to com-
bat false, deceptive, misleading, inaccurate, or hate-
ful speech is with countervailing speech that ulti-
mately carries the day with a majority of the populace
and its elected representatives. Of course, the major-
ity is not always persuaded by countervailing truthful
and accurate speech, especially in capitalistic democ-
racies where factions that spend the most money
tend to have the loudest and most prevalent voices
through radio and television advertisements. Su-
preme Court Justice Oliver Wendell Holmes articu-
lated an extreme view of the risks underlying free-
dom of speech when he wrote ‘‘that a law should be
called good if it reflects the will of the dominant
forces of the community, even if it will take us to
hell.’’ (Levinson) Similarly, Holmes wrote that free-
dom of speech does not protect ‘‘free thought for
those who agree with us, but freedom for the
thought that we hate.’’ U.S. v. Schwimmer, 279 U.S.
644, 49 S.Ct. 448, 73 L.Ed. 889 (1929).
The First Amendment to the U. S. Constitution
provides that ‘‘Congress shall make no law... abridg-
ing the freedom of speech.’’ But the Supreme Court
has never literally interpreted this guarantee as an
absolute prohibition against all restrictions on indi-
vidual speech and expression. Instead, the Supreme
Court has identified seven kinds of expression that
the government may regulate to varying degrees
without running afoul of the Free Speech Clause: (1)
core political speech; (2) speech that incites illegal
GALE ENCYCLOPEDIA OF EVERYDAY LAW 163
or subversive activity; (3) fighting words; (4)
OBSCENITY and PORNOGRAPHY; (5) symbolic speech;
(6) commercial speech; and (7) student speech. The
degree to which the government may regulate a par-
ticular kind of expression depends on the nature of
the speech, the context in which the speech is made,
and its likely impact upon any listeners. However,
both state and federal courts will apply the same
level of scrutiny to government regulation of free
speech under the First Amendment, since the Free
Speech Clause has been made applicable to the
states via the Fourteenth Amendment’s EQUAL
PROTECTION and Due Process Clauses. Gitlow v. New
York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).
The Law Protecting Freedom of
Expression
Core Political Speech
Core political speech consists of conduct and
words that are intended to directly rally public sup-
port for a particular issue, position, or candidate. In
one prominent case the U. S. Supreme Court sug-
gested that core political speech involves any ‘‘inter-
active communication concerning political change.’’
Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100
L.Ed.2d 425 (1988). Discussion of public issues and
debate on the qualifications of candidates, the Su-
preme Court concluded, are forms of political ex-
pression integral to the system of government estab-
lished by the federal Constitution. Buckley v. Valeo,
424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (U.S. 1976).
Thus, circulating handbills and petitions, posting
signs and placards, and making speeches and ora-
tions are all forms of core political speech, so long
as they in some way address social issues, a political
positions, political parties, political candidates, gov-
ernment officials, or governmental activities.
The First Amendment elevates core political
speech above all other forms of individual expression
by prohibiting laws that regulate it unless the laws
are narrowly tailored to serve a compelling state in-
terest. Known as ‘‘strict scrutiny’’ analysis, the appli-
cation of this analysis by a court usually sounds the
death knell for the law that is being challenged. This
application is especially true when the core political
speech is expressed in traditional public forums,
such as streets, sidewalks, parks, and other venues
that have been traditionally devoted to public assem-
bly and social debate. Strict scrutiny is also applied
to laws that regulate core political speech in ‘‘desig-
nated public forums,’’ which are areas created by the
government specifically for the purpose of fostering
political discussion. For example, state fair grounds
may be considered designated public forums under
appropriate circumstances. Heffron v. International
Soc. for Krishna Consciousness, Inc., 452 U.S. 640,
101 S.Ct. 2559, 69 L.Ed.2d 298 (U.S. 1981). However,
in non-public forums courts apply a much lower level
of scrutiny, allowing the government to limit core
political speech if the limitation is reasonable and not
aimed at silencing the speaker’s viewpoint. Examples
of nonpublic forums include household mail boxes,
military bases, airport terminals, indoor shopping
malls, and most private commercial and residential
property.
Speech that Incites Illegal or Subversive
Activity
Some speakers intend to arouse their listeners to
take constructive steps to alter the political land-
scape. Every day in the United States people hand
out leaflets imploring neighbors to write Congress,
vote on a referendum, or contribute financially to po-
litical campaigns and civic organizations. For other
speakers, existing political channels provide insuffi-
cient means to effectuate the type of change desired.
These speakers may encourage others to take illegal
and subversive measures to change the status quo.
Such measures have included draft resistance during
wartime, threatening public officials, and joining po-
litical organizations aimed at overthrowing the U. S.
government.
The Supreme Court has held that the government
may not prohibit speech that advocates illegal or sub-
versive activity unless that ‘‘advocacy is directed to
inciting or producing imminent lawless action and is
likely to incite or produce such action.’’ Branden-
burg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d
430 (1969). Applying the Brandenburg test, the Su-
preme Court has ruled that the government may not
punish an antiwar protester who yells ‘‘we’ll take the
f—-ing street later’’ because such speech ‘‘amounted
to nothing more than advocacy of illegal action at
some indefinite future time.’’ Hess v. Indiana, 414
U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973). Nor can
the government punish someone who, in opposition
to the draft during the Vietnam War, proclaimed ‘‘if
they ever make me carry a rifle, the first man I want
in my sights is [the President of the United States]
L.B.J.’’ Watts v. U. S., 394 U.S. 705, 89 S.Ct. 1399, 22
L.Ed.2d 664 (1969). Such politically charged rhetoric,
the Supreme Court held, was mere hyperbole and
not a threat intended to be acted on at a definite
point in time.
CIVIL RIGHTS—FREE SPEECH/FREEDOM OF EXPRESSION
164 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Fighting Words
‘‘Fighting words’’ are another form of speech re-
ceiving less First Amendment protection than core
political speech. Fighting words are those words that
‘‘by their very utterance inflict injury or tend to incite
an immediate breach of the peace’’ or have a ‘‘direct
tendency to cause acts of violence by the person to
whom, individually, the remark is addressed.’’ Cha-
plinski v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766,
86 L.Ed. 1031 (1942). Where subversive advocacy ex-
horts large numbers of people to engage in lawless
activity, fighting words are aimed at provoking a spe-
cific individual. For example, calling someone a de-
rogatory epithet like ‘‘fascist,’’ ‘‘nigger,’’ ‘‘kike’’ or
‘‘faggot,’’ may result in street brawl, but cannot be ac-
curately described as subversive speech.
Fighting words should also be distinguished from
speech that is merely offensive. Unkind and insensi-
tive language is heard everyday at work, on televi-
sion, and sometimes even at home. But the Supreme
Court has ruled that the First Amendment protects
speech that merely hurts the feelings of another per-
son. The Court has also underscored the responsibil-
ity of listeners to ignore offensive speech. Television
channels can be changed, radios can be turned off,
and movies can be left unattended. Other situations
may require viewers of offensive expressions simply
to avert their eyes. In one noteworthy case, the Court
ruled that a young man had the right to wear a jacket
in a state courthouse with the aphorism ‘‘F—- the
Draft’’ emblazoned across the back because persons
in attendance could look away if offended. Cohen v.
California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284
(1971). ‘‘One man’s vulgarity,’’ the Court said, ‘‘is an-
other’s lyric,’’ and the words chosen in this case con-
veyed a stronger message than would a subdued vari-
ation such as ‘‘Resist the Draft.’’
Obscenity and Pornography
Artful depictions of human sexuality highlight the
tensions between lust and love, desire and commit-
ment, fantasy and reality. Vulgar depictions can de-
grade sexuality and dehumanize the participants, re-
placing stories about love with stories about
deviance, abuse, molestation, and pedophilia. State
and federal laws attempt to enforce societal norms
by encouraging acceptable depictions of human sex-
uality and discouraging unacceptable depictions. Li-
bidinous books such as Lady Chatterly’s Lover and
pornographic movies such as Deep Throat have ran-
kled communities struggling to determine whether
such materials should be censored as immoral or
protected as works of art.
The Supreme Court has always had difficulty dis-
tinguishing obscene material, which is not protected
by the First Amendment, from material that is merely
salacious or titillating, which is protected. Justice Pot-
ter Stewart once admitted that he could not define
obscenity, but he quipped, ‘‘I know it when I see it.’’
Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676,
1683, 12 L.Ed.2d 793 (1964). Nonetheless, the Su-
preme Court has articulated a three-part test to de-
termine when sexually oriented material is obscene.
Material will not be declared obscene unless (1) the
average person, applying contemporary community
standards, would find that the material’s predomi-
nant theme appeals to a ‘‘prurient’’ interest; (2) the
material depicts or describes sexual activity in a ‘‘pa-
tently offensive’’ manner; and (3) the material lacks,
when taken as a whole, serious literary, artistic, polit-
ical, or scientific value. Miller v. California, 413 U.S.
15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
Although the Supreme Court has failed to clearly
define words like ‘‘prurient,’’ ‘‘patently offensive’’
and ‘‘serious artistic value,’’ literary works that deal
with sexually related material are strongly protected
by the First Amendment, as are magazines like Play-
boy and Penthouse. More difficult questions are
presented in the area of adult cinema. Courts gener-
ally distinguish hard-core pornography that graphi-
cally depicts copulation and oral sex from soft-core
pornography that displays nudity and human sexuali-
ty short of these ‘‘ultimate sex acts.’’ In close cases
falling somewhere in the gray areas of pornography,
outcomes may turn on the ‘‘community standards’’
applied by the jury in a particular locale. Thus, por-
nography that could be prohibited as obscene in a
small rural community might receive First Amend-
ment protection in Times Square.
Symbolic Expression
Not all forms of self-expression involve words. The
nod of a head, the wave of a hand, and the wink of
an eye each communicate something without resort
to language. Other forms of non-verbal expression
communicate powerful symbolic messages. The tele-
vision image of the defenseless Chinese student who
faced down a line of tanks during the 1989 democra-
cy protests near Tiananmen Square in China is one
example of symbolic expression that will be forever
seared into the memories of viewers. The picture of
the three New York City firefighters raising the Amer-
ican flag amid the rubble and ruins at the World
Trade Center following the terrorist attacks of Sep-
tember 11, 2001, is another powerful example of
symbolic expression.
CIVIL RIGHTS—FREE SPEECH/FREEDOM OF EXPRESSION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 165
However, the First Amendment does not protect
all symbolic expression. If an individual intends to
communicate a specific message by symbolic expres-
sion under circumstances in which the audience is
likely to understand its meaning, the government
may not regulate that expression unless the regula-
tion serves a significant societal interest unrelated to
suppressing the speaker’s message. Spence v. Wash-
ington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842
(1974). Applying this standard, the U. S. Supreme
Court reversed the CONVICTION of a person who
burned the American flag in protest over the policies
of President Ronald Reagan (Texas v. Johnson, 491
U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)), in-
validated the suspension of a high school student
who wore a black arm-band in protest of the Vietnam
War (Tinker v. Des Moines Independent Community
School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d
731 (1969), but upheld federal legislation that pro-
hibited burning draft cards (U. S. v. O’Brien, 391 U.S.
367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). Of the
governmental interests asserted in these three cases,
maintaining the integrity of the selective service sys-
tem was the only interest of sufficiently weighty im-
portance to overcome the First Amendment right to
engage in evocative symbolic expression.
Commercial Speech
Commercial speech, such as advertising, receives
more First Amendment protection than subversive
advocacy, fighting words, and obscenity, but less pro-
tection than core political speech. Advertising is af-
forded more protection than these other categories
of expression because of consumers’ interest in the
free flow of market information. Virginia State Board
of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346
(1976). In a free enterprise system consumers de-
pend on information regarding the quality, quantity,
and price of various goods and services. Society is
not similarly served by the free exchange of obsceni-
ty.
At the same time, commercial speech deserves
less protection than core political speech because so-
ciety has a greater interest in receiving accurate com-
mercial information and may be less savvy in flushing
out false and deceptive ads. The average citizen is
more conditioned, the Supreme Court has suggest-
ed, to discount the words of a politician than the
words of a fortune 500 company. The average citizen
may also be more vulnerable to misleading commer-
cial advertising. Even during an election year, most
people view more commercial advertisements than
political and rely on those advertisements when pur-
chasing the clothes they wear, the food they eat, and
the automobiles they drive. Thus, the First Amend-
ment permits governmental regulation of commer-
cial speech so long as the government’s interest in
doing so is substantial (e.g., the prohibition of false,
deceptive, and misleading advertisements), the regu-
lations directly advance the government’s asserted
interest, and the regulations are no more extensive
than necessary to serve that interest.
Freedom of Expression in Public Schools
In 1969 the Supreme Court articulated one of its
most cited First Amendment pronouncements when
it said that ‘‘[n]either students [n]or teachers shed
their constitutional rights to freedom of speech or
expression at the schoolhouse gate.’’ Tinker v. Des
Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21
L.Ed.2d 731 (1969). Despite the frequency in which
other courts have quoted this passage in addressing
the free speech rights of public school students, as
a principle of First Amendment law the passage rep-
resents somewhat of an overstatement. The First
Amendment does not afford public school students
the same liberty to express themselves as they would
otherwise enjoy if they were adults speaking their
minds off school grounds. In fact, the Supreme
Court has since qualified this principle by stating that
a public school student’s right to free speech is ‘‘not
automatically co-extensive with the rights of adults in
other settings.’’ Hazelwood School District v. Kuhlm-
eier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592
(1988). In Hazelwood the Court held that educators
may control the style and content of school-
sponsored publications, theatrical productions, and
other expressive conduct, so long as the educator’s
actions are reasonably related to legitimate pedagog-
ical concerns. In short, student speech that is not
consistent with a school’s educational mission can be
censored.
Applying the standard set forth in Hazelwood, the
U.S. Court of Appeals for the Sixth Circuit upheld the
disqualification of a candidate for student council
president after he made discourteous remarks about
an assistant principal during a campaign speech at a
school-sponsored assembly. Poling v. Murphy, 872
F.2d 757 (6th Cir. 1989). ‘‘Civility is a legitimate peda-
gogical concern,’’ the court declared. Even state uni-
versities may adopt and enforce reasonable, nondis-
criminatory regulations as to the time, place, and
manner of student expressions. Bayless v Martine
430 F2d 873 (5th Cir. 1970). However, a state univer-
sity’s refusal to recognize a gay student services orga-
CIVIL RIGHTS—FREE SPEECH/FREEDOM OF EXPRESSION
166 GALE ENCYCLOPEDIA OF EVERYDAY LAW
nization violated the First Amendment because it de-
nied the students’ right to freely associate with
political organizations of their choosing. Gay Student
Services v. Texas A & M University, 737 F2d 1317 (5th
Cir. 1984).
State Law Protecting Free Expression
The federal Constitution establishes the minimum
amount of freedom that must be afforded to individ-
uals under the First Amendment. State constitutions
may offer their residents more freedom of speech
than is offered under the federal Constitution, but
not less. Below is a sampling of state court cases de-
cided at least in part based on their own state’s con-
stitutional provisions governing freedom of expres-
sion.
ARKANSAS: A state STATUTE penalizing night-riding
did not abridge the freedom of speech guaranteed
by the state or federal constitutions. U.S.C.A. Const.
Amends. 1, 14; Const.Ark. art. 2, § 6. Johnson v. State,
197 Ark. 1016, 126 S.W.2d 289 (Ark. 1939).
ALABAMA: A city’s ORDINANCE forbidding a business
from permitting consumption of alcoholic beverages
and nude dancing at the same time regulated con-
duct and not individual expression; thus, the ordi-
nance did not violate the state’s constitutional right
to freedom of speech. Const. Art. 1, § 4; Anniston,
Ala., Ordinance No. 94-0-03. Ranch House, Inc. v.
City of Anniston, 678 So.2d 745 (Ala. 1996).
ARIZONA: The state’s STATUTORY ban on targeted res-
idential picketing was a valid accommodation for the
right to freedom of speech explicitly protected by
the state constitution. A.R.S. Const. Art 2, §§ 6, 8;
A.R.S. § 13-2909.U.S.C.A. Const.Amend. 1; A.R.S.
Const. Art. 2. State v. Baldwin, 184 Ariz. 267, 908 P.2d
483 (Ariz. App. Div. 1 1995).
CALIFORNIA: The free speech clause in the state
constitution contains a state action limitation and,
thus, that clause only protects against government
regulation of free speech and not private regulation
thereof. West’s Ann.Cal. Const. Art. 1, § 2(a). Golden
Gateway Center v. Golden Gateway Tenants Assn., 26
Cal.4th 1013, 29 P.3d 797, 111 Cal.Rptr.2d 336 (Cal.
2001).
ILLINOIS: The defendants’ arrest for protesting on
the premises of an ABORTION clinic did not violate the
defendants’ state constitutional right of free speech,
since the clinic’s policy required removal of all dem-
onstrators from the clinic’s premises regardless of
their beliefs, and there was no indication that the
clinic’s policy of excluding demonstrators was ever
applied in discriminatory manner. S.H.A. Const. Art.
1, § 4. People v. Yutt, 231 Ill.App.3d 718, 597 N.E.2d
208, 173 Ill.Dec. 500 (Ill.App. 3 Dist. 1992).
MAINE: The state’s statute allowing the State Em-
ployees Association to pay 80% of the COLLECTIVE
BARGAINING unit dues for association members, while
contributing nothing toward the dues of non-
members, violated neither the state nor federal guar-
antees to freedom of speech. Laws 1st Reg.Sess.1979,
L.D. 1573; M.R.S.A.Const. art. 6, § 3; U.S.C.A. Const.
Amend. 1. Opinion of the Justices, 401 A.2d 135 (Me.
1979).
MASSACHUSETTS: A conviction for threatening to
commit a crime does not violate a defendant’s free
speech rights under the federal or state constitutions
if the EVIDENCE is sufficient to satisfy each element of
the crime, since those elements are defined in a way
that prevents a conviction based on protected
speech. U.S.C.A. Const.Amend. 1; M.G.L.A. Const. Pt.
1, Art. 16; M.G.L.A. c. 275, § 2. Commonwealth v.
Sholley, 432 Mass. 721, 739 N.E.2d 236 (Mass. 2000).
MICHIGAN: A state administrative rule prohibiting
simulated sexual conduct in licensed liquor estab-
lishments did not violate the state’s constitutional
provision guaranteeing free speech. M.C.L.A. Const.
Art. 1, § 5; Art. 4, § 40; Mich. Admin. Code r.
436.1411(1). Kotmar, Ltd. v. Liquor Control Com’n,
207 Mich.App. 687, 525 N.W.2d 921 (Mich.App.,
1994).
MINNESOTA: Differences in terminology between
the free speech protection in the federal Constitu-
tion and the free speech protection under the state
constitution did not support a conclusion that the
state constitutional protection should be more
broadly applied than the federal. U.S.C.A.
Const.Amend. 1; M.S.A. Const. Art. 1, § 3. State v.
Wicklund, 589 N.W.2d 793 (Minn. 1999).
NEW YORK: The state statute banning the televising
of any court proceeding in which the TESTIMONY of
witnesses by SUBPOENA is or may be taken denies free
speech guaranteed by the state and federal constitu-
tions. U.S.C.A. Const.Amend. 1; McKinney’s Const.
Art. 1, § 8; McKinney’s CIVIL RIGHTS Law § 52. Cole-
man v. O’Shea, 184 Misc.2d 238, 707 N.Y.S.2d 308,
2000 N.Y. Slip Op. 20199 (N.Y.Sup. 2000).
OHIO: The state constitution’s separate and inde-
pendent guarantee of free speech applies to defama-
CIVIL RIGHTS—FREE SPEECH/FREEDOM OF EXPRESSION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 167
tory statements only if those statements are mattes
of opinion, and citizens who abuse their constitu-
tional right to freely express their sentiments by ut-
tering defamatory statements of fact will remain lia-
ble for the abuse of that right. Const. Art. 1, § 11.
Wampler v. Higgins, 93 Ohio St.3d 111, 752 N.E.2d
962 (Ohio 2001).
TEXAS: The state constitution offers greater free
speech protection than the federal Constitution for
political speech, but this greater protection does not
extend to exotic dancing businesses. Society has a
lesser interest in protecting material on the border-
line between pornography and artistic expression
than it does in protecting the free dissemination of
ideas of social and political significance. U.S.C.A.
Const.Amend. 1; Vernon’s Ann.Texas Const. Art. 1, §
8. Kaczmarek v. State, 986 S.W.2d 287 (Tex.App.-
Waco 1999).
WASHINGTON: Nude dancing receives constitution-
al protection under the free speech guarantees of
the First Amendment and the state constitution, al-
though nudity itself is conduct subject to the police
powers of the state. U.S.C.A. Const.Amend. 1; West’s
RCWA Const. Art. 1, § 5. DCR, Inc. v. Pierce County,
92 Wash.App. 660, 964 P.2d 380 (Wash.App. Div. 2
1998).
Additional Resources
American Jurisprudence. West Group, 1998.
Fan Letters: The Correspondence of Holmes and Frank-
furter. Levinson, Sanford, 75 Tex. L. Rev. 1471, 1997
http://caselaw.lp.findlaw.com/data/constitution/
amendment01. U. S. Constitution: First Amendment.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Bar Association
740 15th Street, NW
Washington, DC 20002 USA
Phone: (202) 544-1114
Fax: (202) 544-2114
URL: http://w ww.abanet.org
Primary Contact: Robert J. Saltzman, President
American Civil Liberties Union (ACLU)
1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
E-Mail: info@aclu.org
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive
Director
Free Speech Coalition
904 Massachusetts Ave NE
Washington, DC 64196 USA
Phone: (202) 638-1501
Fax: (202) 662-1777
URL: http://w ww.freespeechcoalition.com/
home.htm
Primary Contact: Jeffrey Douglas, Director
CIVIL RIGHTS—FREE SPEECH/FREEDOM OF EXPRESSION
168 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CIVIL RIGHTS
RACIAL DISCRIMINATION
Sections within this essay
• Background
• Constitutional Protection Against Racial Dis-
crimination
- Supreme Court Involvement in Pro-
tections Against Racial Discrimina-
tion
- State Action
- Thirteenth Amendment Protections
- Fourteenth Amendment Protections
- Fifteenth Amendment Protections
- State Protections Against Racial Dis-
crimination
- Judicial Review of Constitutional Vio-
lations
• Civil Rights Acts and Their Applications
- History of Civil Rights Acts
- Employment
- Voting
- Education
- Housing
- Remedies for Civil Rights Violations
• State Provisions Regarding Racial Discrimi-
nation
• Additional Resources
Background
Citizens of the United States are protected against
racial DISCRIMINATION by many laws, including Consti-
tutional protections, CIVIL RIGHTS statutes, and civil
rights regulations. The Fourteenth Amendment,
which provides all citizens with EQUAL PROTECTION of
the laws, was ratified in 1868; however, the most sig-
nificant changes in the law with respect to racial dis-
crimination have occurred in the last fifty years. In
this time, a number of landmark events have oc-
curred and a number of landmark laws have been
passed that prevent discrimination on the basis of
race in many circumstances.
• In 1954, the United States Supreme Court
ruled in Brown v. Board of Education that
the Equal Protection Clause of the Four-
teenth Amendment to the United States
Constitution prohibited SEGREGATION in pub-
lic schools on the basis of race. The Court
then required public school districts to
begin the process of integration ‘‘with all de-
liberate speed.’’
• The Civil Rights Act of 1964 brought about
the most significant changes in civil rights
protection in the history of the country. It
prohibited racial and other discrimination in
employment, education, and use of public
accommodations and facilities.
• The VOTING RIGHTS ACT OF 1965 prevented
racial and other forms of discrimination with
respect to access to the ballots.
• The Fair Housing Act, part of the Civil Rights
Act of 1968, prohibited discrimination in the
sale and renting of housing. It also extended
these prohibitions to lending and other fi-
nancial institutions.
• The Civil Rights Act of 1991 was designed to
strengthen and improve previous civil rights
legislation.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 169
Civil rights laws do not render every form of racial
discrimination unlawful. For example, laws do not
proscribe general notions of racial prejudice by pri-
vate individuals in most circumstances. However,
when racial prejudices or preferences interfere with
the rights of others, then the law is more likely to
provide protection. This distinction applies to gov-
ernment entities or business entities engaged in in-
terstate commerce.
Constitutional Protection Against Racial
Discrimination
Supreme Court’s Involvement in Protections
Against Racial Discrimination
The U. S. Supreme Court has been called upon on
numerous occasions to address the constitutionality
of state actions that may involve racial discrimina-
tion. Prior to the enactment of the Thirteenth, Four-
teenth, and Fifteenth Amendments to the U. S. Con-
stitution, the Court rendered several decisions on
the issue of slavery, many of which affected the fu-
ture of the United States regarding the Civil War. The
most significant of these decisions occurred in 1857,
when the Court in Scott v. Sanford decided that
slaves were not ‘‘citizens’’ as the term was used in
the Constitution. The Court also determined Con-
gress could not constitutionally prohibit slavery in
the territories.
After the enactment of the Constitutional Amend-
ments during the reconstruction period after the
Civil War, the Court was called upon to decide a
number of issues related to these amendments and
civil rights legislation passed during this period. The
most significant of these cases was called the CIVIL
RIGHTS CASES, in which the court restricted consider-
ably the power of Congress to proscribe discrimina-
tion by operators of public accommodations. In
1896, the Court ruled in Plessy v. Ferguson that the
Constitution did not prohibit states from enacting
laws that distinguished people of different races. In
the fifty years after Plessy v. Ferguson, states could
constitutionally segregate members of different races
under the ‘‘separate-but-equal’’ doctrine. The Court
reversed its position in 1954 with the decision in
Brown v. Board of Education, which also led to the
enactment of the civil rights legislation by Congress.
State Action
The Supreme Court has long held that the Consti-
tution applies only to the actions of government, not
to the actions of private individuals or entities. This
restriction traditionally enabled private individuals to
circumvent the rights provided in the Constitution.
The first CASUALTY was the civil rights statutes passed
during Reconstruction after the Civil War. Subse-
quent cases involved such efforts as those by private
individuals to prevent blacks from voting. Since
these actions were not officially considered ‘‘state ac-
tions,’’ the Court held that the Constitution did not
apply.
The Court in more modern times has taken a
more liberal view of which actions constitute state
actions. In some circumstances, a state’s approval of
private action may constitute state action. Even if an
action is not considered a state action, however,
modern civil rights legislation may provide protec-
tion against private actions that is equivalent to con-
stitutional protection.
Thirteenth Amendment Protections
The United States abolished slavery in the United
States when it ratified the Thirteenth Amendment in
1865. Under this amendment, slavery and involun-
tary servitude, except as punishment for crimes,
were outlawed. The amendment also permitted Con-
gress to enact legislation to enforce this amendment.
The Supreme Court restricted Congressional power
to enforce the act in the Civil Rights Cases in 1883,
and relatively little LITIGATION occurred over the next
eighty years. However, the Court held in the 1968
case of Jones v. Alfred H. Mayer Co. that Congressio-
nal authority to proscribe private discrimination was
granted by the Thirteenth Amendment. Since that
time, the Thirteenth Amendment has served as part
of the basis of authority under which Congress may
enact civil rights legislation.
Fourteenth Amendment Protections
One of the more controversial laws in the history
of the United States is the Fourteenth Amendment
to the United States. This amendment prohibits gov-
ernment from denying equal protection of the laws
or DUE PROCESS OF LAW to the citizens of the United
States. Defining ‘‘equal protection’’ and ‘‘due pro-
cess,’’ however, has perplexed the U. S. Supreme
Court, lower federal courts, and state courts since
the RATIFICATION of the amendment in 1868. Though
ironically the Equal Protection Clause was the basis
for such historic doctrines as ‘‘separate-but-equal’’ in
Plessy v. Ferguson, it has also served as the basic con-
stitutional protection against racial discrimination by
government entities in modern civil rights
JURISPRUDENCE.
CIVIL RIGHTS—RACIAL DISCRIMINATION
170 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Laws designed to give preferences to whites to the
detriment of members of the minority races are
clearly unconstitutional. More difficult questions are
raised with respect to AFFIRMATIVE ACTION programs
designed to give minorities opportunities they may
lack due to a history of discrimination. In the past fif-
teen years, the Supreme Court has struck down sev-
eral of these programs as unconstitutional. Similar
problems have been raised with respect to efforts to
GERRYMANDER voting districts in order to ensure that
minority (or nonminority) political candidates have
a better chance to win seats. Unless such efforts have
been designed to remedy specific instances of dis-
crimination, they are most likely in violation of the
Equal Protection Clause.
Fifteenth Amendment Protection
All citizens are guaranteed the right to vote
through the Fifteenth Amendment. This amend-
ment, ratified in 1870, was designed to eradicate ef-
forts to disenfranchise blacks during Reconstruction
following the Civil War. The Supreme Court limited
the application of this amendment in several cases
decided between 1876 and 1903, and the Court has
traditionally placed much more weight on the Four-
teenth Amendment than the Fifteenth Amendment
with respect to racial discrimination. This tendency
applies even in cases involving allegations of
INFRINGEMENT on the right to vote. The most signifi-
cant exception was the case of Smith v. Allwright in
1944, in which the Supreme Court invalidated an
election on the basis of Fifteenth Amendment pro-
tections.
State Protections Against Racial
Discrimination
The Thirteenth, Fourteenth, and Fifteenth
Amendments, by their own terms, apply to the state
governments. The Fourteenth Amendment, for ex-
ample, states, ‘‘No State shall . . . deny to any person
within its JURISDICTION the equal protection of the
laws.’’ State constitutions and state laws can provide
greater protection to prevent racial discrimination
than federal constitution guarantees. Since the U. S.
Constitution is the supreme law of the land, no state
constitution or STATUTE can restrict the rights grant-
ed to all citizens of the United States. In other words,
the federal Constitution provides the minimum level
of rights to citizens in this country, and states may
only raise this level rather than reduce it.
Judicial Review of Constitutional Violations
Supreme Court jurisprudence in the area of racial
discrimination is often very confusing due to the ter-
minology used when the Court reviews these cases.
When the government classifies people differently,
courts will employ various levels of scrutiny to deter-
mine whether that classification is constitutionally
permissible. Many classifications are generally per-
missible, such as those classifications that differenti-
ate on the basis of income for tax purposes. These
classifications are presumed constitutional and will
be upheld unless a party can prove that the govern-
ment has no rational basis for its decision.
If a government entity makes a classification based
on race, courts employ a heightened standard of re-
view. These classifications are presumed to be un-
constitutional and will be upheld only if the govern-
ment can prove that the program is narrowly tailored
to address a compelling government interest. Very
few government programs that make racial classifica-
tions can satisfy strict scrutiny, including many affir-
mative action programs. The Court’s position in this
area can shift as new justices join the Court.
Civil Rights Acts and their Applications
History of Civil Rights Acts
Congress attempted to provide a number of rights
to members of minority races in the Civil Rights Act
of 1875. However, the Supreme Court in the Civil
Rights Cases in 1883 significantly curtailed this effort
by ruling that Congress did not have the authority to
restrict segregation in public accommodations and
public conveyances. Only state governments had the
power to address racial discrimination by private ac-
tors. After the decision in Plessy v. Ferguson, states
were able to enact legislation segregating the differ-
ent races, and Congress was powerless to restrict
these laws.
Beginning primarily with the Supreme Court’s de-
cision in Brown v. Board of Education in 1954, the
Court established a more expansive view of congres-
sional authority in the area of racial discrimination.
Congress enacted a number of statutes between
1957 and 1968 that granted equal rights to all races
in education, employment, voting, and many other
areas relevant to interstate commerce.
Employment
Employers are prohibited from discriminating on
the basis of race, sex, religion, or national origin by
the provisions of Title VII of the Civil Rights Act of
1964. To enforce this Act, which neither defines dis-
crimination nor sets forth mechanisms for enforce-
ment, Congress established the Equal Employment
Opportunity Commission (EEOC). The EEOC views
CIVIL RIGHTS—RACIAL DISCRIMINATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 171
discrimination on a broad level, considering ‘‘dis-
crimination’’ to include not only blatant acts of BIAS
but also programs that have a disparate impact on
minorities. The EEOC has enacted numerous regula-
tions that give guidance to employers regarding em-
ployment discrimination.
Voting
Despite the enactment of the Fifteenth Amend-
ment, governments and private individuals used a va-
riety of tactics to prevent blacks from exercising their
right to vote. Such tactics included poll taxes, prop-
erty requirements, intimidation, and other mecha-
nisms designed to discourage blacks from voting. To
address these inequities, Congress in 1965 passed
the Voting Rights Act. Among other provisions, this
Act prohibited requirements that voters take literacy
tests or pay poll taxes prior to receiving the right to
vote. Provisions in other statutes further enhanced
voting rights. The Equal Protection Clause of the
Fourteenth Amendment provides additional protec-
tion against discrimination in voting.
Education
School segregation and desegregation were
among the most controversial topics in the civil
rights movement in the 1950s and 1960s. The Su-
preme Court’s decision in Brown v. Board of Educa-
tion outlawed segregation of blacks and whites in
public schools, though studies have shown that the
educational levels of white students and minority
students remains unequal. The Civil Rights Act of
1964 prohibits discrimination in education on the
basis of race but does not contain mechanisms to en-
sure that education of all students, minority or non-
minority, remains entirely equal.
Initial efforts to ensure educational equality fo-
cused on forced integration of students of different
races. This effort involved the process of busing stu-
dents from areas with a largely black population to
schools in traditionally white areas. Many of these ef-
forts have been found to be unconstitutional.
Schools in higher education sought to provide some
level of equality by mandating that a certain number
of minorities fill positions in entering classes. Howev-
er, the Supreme Court in Bakke v. Board of Regents
ruled that such a requirement violated the Equal Pro-
tection Clause. Though some schools continue to
consider race as a factor in college admissions, the
legality of such considerations are progressively be-
coming more questionable. For example, in 1996,
the Fifth Circuit Court of Appeals ruled in the 1996
case of Hopwood v. Texas that the University of
Texas School of Law could not consider race as a fac-
tor in the admission of law students, even though the
law school traditionally did not admit many minori-
ties.
Housing
Many studies have shown a relationship between
school segregation and residential segregation. If
whites and minorities are segregated in the areas in
which they live, the schools in these areas are more
likely to be segregated as well. As noted above, some
efforts to desegregate schools focused on busing stu-
dents from proportionately black areas to propor-
tionately white areas. Even these efforts, however, do
not address the problem with segregation in hous-
ing. Congress passed the Fair Housing Act in 1968 to
prohibit real estate sellers, landlords, and others
from discriminating on the basis of race. However,
this Act was not enforced or applied routinely for
several years, and proving discrimination in housing
can be difficult. Though the legal mechanisms to pre-
vent discrimination are in place, societal changes are
likely to be necessary to eradicate discrimination in
this area.
Remedies for Civil Rights Violations
The Civil Rights Act of 1991 and other federal stat-
utes permit civil actions for a deprivation of civil
rights, including violations of constitutional protec-
tions, violations of civil rights legislation, or any other
antidiscrimination law. Victims of racial discrimina-
tion may recover monetary damages, including
PUNITIVE DAMAGES and attorney’s fees in appropriate
circumstances. Victims may also seek an injunction
or other equitable remedy.
State Provisions Regarding Racial
Discrimination
Many states have established their own rights re-
lated to protection of civil rights, including racial dis-
crimination. Several of these states have established
agencies or delegated authority to existing agencies
to handle civil rights claims. In some states, civil
rights law preempts other ordinary tort actions and
in many cases limits the amount of recovery available
to litigants with complaints related to violations of
civil rights.
ALABAMA: Alabama has not enacted legislation deal-
ing specifically with civil rights.
ALASKA: Complaints for relevant civil rights viola-
tions are submitted to the Commission for HUMAN
CIVIL RIGHTS—RACIAL DISCRIMINATION
172 GALE ENCYCLOPEDIA OF EVERYDAY LAW
RIGHTS. Private actions are permitted, and causes of
action are not preempted by administrative action.
The STATUTE OF LIMITATIONS for a civil rights action is
one year.
ARIZONA: Complaints for relevant civil rights viola-
tions are submitted to the Civil Rights Advisory
Board. Private actions are permitted, and causes of
action are not preempted by administrative action.
The statute of limitations for a civil rights action is
generally two years.
ARKANSAS: Private actions are permitted, except for
those related to discrimination in public employ-
ment. Causes of action are not preempted by admin-
istrative action.
CALIFORNIA: Complaints for relevant civil rights vio-
lations are submitted to the Department of Employ-
ment and Housing. Private actions are permitted,
and causes of action are not preempted by adminis-
trative action. The statute of limitations for a civil
rights action is three years.
COLORADO: Complaints for relevant civil rights vio-
lations are submitted to the Civil Rights Commission.
Private actions are permitted for some causes of ac-
tion, but causes of action are preempted by adminis-
trative action. The statute of limitations for a civil
rights action is sixty days.
CONNECTICUT: Complaints for relevant civil rights
violations are submitted to the Commission on
Human Rights and Opportunities. Private actions are
permitted, and only certain causes of action are pre-
empted by administrative action.
DELAWARE: Complaints for relevant civil rights viola-
tions are submitted to the Human Relations Com-
mission or Department of Labor. Some private ac-
tions are permitted, but causes of action are
preempted by administrative action. The statutes of
limitations vary depending on the complaint.
DISTRICT OF COLUMBIA: Complaints for relevant
civil rights violations are submitted to the Commis-
sion on Human Rights. Private actions are permitted,
and causes of action are not preempted by adminis-
trative action. The statute of limitations for a civil
rights action is one year.
FLORIDA: Complaints for relevant civil rights viola-
tions are submitted to the Commission for Human
Relations. Private actions are not permitted, and
causes of action are preempted by administrative ac-
tion. The statute of limitations for a civil rights action
is eighty days.
GEORGIA: Some private causes of action are permit-
ted, but none is preempted by administrative action.
HAWAII: Complaints for relevant civil rights viola-
tions are submitted to the Civil Rights Commission
or Department of Commerce and Consumer Affairs.
Private actions are not permitted, and causes of ac-
tion are preempted by administrative action. The
statute of limitations for a civil rights action is ninety
days.
IDAHO: Complaints for relevant civil rights violations
are submitted to the Commission on Human Rights.
Private actions are permitted, and causes of action
are not preempted by administrative action. The stat-
ute of limitations for a civil rights action is two years.
ILLINOIS: Complaints for relevant civil rights viola-
tions are submitted to the Human Rights Commis-
sion and Department of Human Rights. Some private
actions are permitted, but causes of action are pre-
empted by administrative action. The statute of limi-
tations for a civil rights action is 180 days.
INDIANA: Complaints for relevant civil rights viola-
tions are submitted to the Civil Rights Commission.
Private actions are permitted, and causes of action
are not preempted by administrative action.
IOWA: Complaints for relevant civil rights violations
are submitted to the Civil Rights Commission. Private
actions are permitted, but causes of action are pre-
empted by administrative action. The statute of limi-
tations for a civil rights action is 180 days.
KANSAS: Complaints for relevant civil rights viola-
tions are submitted to the Commission on Human
Rights. Some private actions are permitted, but
causes of action are preempted by administrative ac-
tion. The statutes of limitations for civil rights actions
vary depending on the complaint.
KENTUCKY: Complaints for relevant civil rights viola-
tions are submitted to the Commission on Human
Rights. Private actions are permitted, but causes of
action are preempted by administrative action. The
statute of limitations for a civil rights action is 180
days.
LOUISIANA: Louisiana civil rights statutes are limited
to those regarding the handicapped.
MAINE: Complaints for relevant civil rights violations
are submitted to the Human Rights Commission. Pri-
vate actions are permitted, but causes of action are
preempted by administrative action. The statute of
limitations for a civil rights action is six months.
CIVIL RIGHTS—RACIAL DISCRIMINATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 173
MARYLAND: Complaints for relevant civil rights viola-
tions are submitted to the Commission on Human
Relations. Private actions are not permitted, and
causes of action are preempted by administrative ac-
tion. The statute of limitations for a civil rights action
is six months.
MASSACHUSETTS: Complaints for relevant civil
rights violations are submitted to the Commission
Against Discrimination. Some private actions are per-
mitted, and some causes of action are preempted by
administrative action. The statutes of limitations vary
depending on the complaint.
MICHIGAN: Complaints for relevant civil rights viola-
tions are submitted to the Civil Rights Commission.
Private actions are permitted, and causes of action
are not preempted by administrative action.
MINNESOTA: Complaints for relevant civil rights vio-
lations are submitted to the Department of Human
Rights. Private actions are permitted, and causes of
action are not preempted by administrative action.
The statute of limitations for a civil rights action is
one year.
MISSISSIPPI: Complaints for relevant civil rights vio-
lations are submitted to the Home Corporation
Oversight Committee. Private actions are not permit-
ted, and causes of action are preempted by adminis-
trative action.
MISSOURI: Complaints for relevant civil rights viola-
tions are submitted to the Commission on Human
Rights. Some private actions are permitted, and
some causes of action are preempted by administra-
tive action. The statutes of limitations vary depend-
ing on the complaint.
MONTANA: Complaints for relevant civil rights viola-
tions are submitted to the Commission for Human
Rights. Some private actions are permitted, and
some causes of action are preempted by administra-
tive action. The statutes of limitations vary depend-
ing on the complaint.
NEBRASKA: Complaints for relevant civil rights viola-
tions are submitted to the Equal Opportunity Com-
mission. Private actions are permitted, but some
causes of action are preempted by administrative ac-
tion. The statute of limitations for a civil rights action
is 180 days.
NEVADA: Complaints for relevant civil rights viola-
tions are submitted to the Equal Rights Commission,
Labor Commission, or Banking Division. Private ac-
tions are permitted, but some causes of action are
preempted by administrative action. The statutes of
limitations vary depending on the complaint.
NEW HAMPSHIRE: Complaints for relevant civil
rights violations are submitted to the Commission
for Human Rights. Private actions are permitted, and
causes of action are not preempted by administrative
action. The statute of limitations for a civil rights ac-
tion is 180 days.
NEW JERSEY: Complaints for relevant civil rights vio-
lations are submitted to the Division on Human
Rights. Private actions are permitted, and causes of
action are not preempted by administrative action.
The statute of limitations for a civil rights action is
180 days.
NEW MEXICO: Complaints for relevant civil rights vi-
olations are submitted to the Human Rights Com-
mission. Private actions are permitted, but causes of
action are preempted by administrative action. The
statute of limitations for a civil rights action is 180
days.
NEW YORK: Complaints for relevant civil rights viola-
tions are submitted to the Division of Human Rights,
Banking Department, or State Human Rights Appeal
Board. Private actions are permitted, and causes of
action are not preempted by administrative action.
The statute of limitations for a civil rights action is
usually one year.
NORTH CAROLINA: Complaints for relevant civil
rights violations are submitted to the Human Rela-
tions Commission. Private actions are not permitted,
and causes of action are not preempted by adminis-
trative action.
NORTH DAKOTA: Complaints for relevant civil rights
violations are submitted to the Department of Labor.
Private actions are permitted, and causes of action
are not preempted by administrative action. The stat-
utes of limitations vary depending on the complaint.
OHIO: Complaints for relevant civil rights violations
are submitted to the Civil Rights Commission. Some
private actions are permitted, and causes of action
are preempted by administrative action. The statutes
of limitations vary depending on the complaint.
OKLAHOMA: Complaints for relevant civil rights vio-
lations are submitted to the Human Rights Commis-
sion. Private actions are not permitted, and causes of
action are preempted by administrative action. The
statute of limitations for a civil rights action is 180
days.
CIVIL RIGHTS—RACIAL DISCRIMINATION
174 GALE ENCYCLOPEDIA OF EVERYDAY LAW
OREGON: Complaints for relevant civil rights viola-
tions are submitted to the Bureau of Labor and In-
dustries. Private actions are permitted, and causes of
action are not preempted by administrative action.
The statute of limitations for a civil rights action is
one year.
PENNSYLVANIA: Complaints for relevant civil rights
violations are submitted to the Human Rights Com-
mission. Private actions are permitted, and causes of
action are not preempted by administrative action.
The statute of limitations for a civil rights action is
180 days.
RHODE ISLAND: Complaints for relevant civil rights
violations are submitted to the Commission for
Human Rights or the Department of Labor. Some
private actions are permitted, and some causes of ac-
tion are preempted by administrative action. The
statutes of limitations vary depending on the com-
plaint.
SOUTH CAROLINA: Complaints for relevant civil
rights violations are submitted to the Human Affairs
Commission. Private actions are permitted, and
causes of action are not preempted by administrative
action. The statute of limitations for a civil rights ac-
tion is 180 days.
SOUTH DAKOTA: Complaints for relevant civil rights
violations are submitted to the Commission of Hu-
manities. Private actions are permitted, and causes of
action are not preempted by administrative action.
The statutes of limitations vary depending on the
complaint.
TENNESSEE: Complaints for relevant civil rights vio-
lations are submitted to the Human Rights Commis-
sion. Private actions are permitted, and causes of ac-
tion are not preempted by administrative action. The
statutes of limitations vary depending on the com-
plaint.
TEXAS: Complaints for relevant civil rights violations
are submitted to the Department of Human Re-
sources. Private actions are permitted, and causes of
action are not preempted by administrative action.
UTAH: Complaints for relevant civil rights violations
are submitted to the Antidiscrimination Division.
Some private actions are permitted, and some causes
of action are preempted by administrative action.
The statutes of limitations vary depending on the
complaint.
VERMONT: Complaints for relevant civil rights viola-
tions are submitted to the Human Rights Commis-
sion. Private actions are permitted, and causes of ac-
tion are not preempted by administrative action. The
statutes of limitations vary depending on the com-
plaint.
VIRGINIA: Private actions are permitted, and causes
of action are not preempted by administrative action.
The statutes of limitations vary depending on the
complaint.
WASHINGTON: Complaints for relevant civil rights
violations are submitted to the Washington State
Human Rights Commission. Private actions are per-
mitted, and causes of action are not preempted by
administrative action. The statute of limitations for a
civil rights action is six months
WEST VIRGINIA: Complaints for relevant civil rights
violations are submitted to the Human Rights Com-
mission. Private actions are permitted, and causes of
action are not preempted by administrative action.
The statute of limitations for a civil rights action is
180 days.
WISCONSIN: Complaints for relevant civil rights vio-
lations are submitted to the Department of Industry,
Labor, and Human Relations. Some private actions
are permitted, and some causes of action are pre-
empted by administrative action. The statutes of limi-
tations vary depending on the complaint.
WYOMING: Complaints for relevant civil rights viola-
tions are submitted to the Fair Employment Com-
mission. Private actions are permitted, and causes of
action are not preempted by administrative action.
The statute of limitations for a civil rights action is
two years.
Additional Resources
The Civil Rights Era: Origins and Development of Nation-
al Policy. Graham, Hugh Davis, Oxford University
Press, 1990.
Constitutional Civil Rights in a Nutshell. Vieira, Norman,
West Group, 1998.
Oxford Companion to the Supreme Court of the United
States. Hall, Kermit L., Oxford University Press, 1992.
Race Law: Cases, Commentary, and Questions. Higgin-
botham, F. Michael, Carolina Academic Press, 2001.
A Reader on Race, Civil Rights, and American Law: A Mul-
tiracial Approach. Davis, Timothy, Kevin R. Johnson,
and George A. Martinez, Carolina Academic Press, 2001.
U. S. Code, Title 42: The Public Health and Welfare. U. S.
House of Representatives, 1999. Available at http://
uscode.house.gov/title_42.htm.
CIVIL RIGHTS—RACIAL DISCRIMINATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 175
Organizations
American Civil Liberties Union (ACLU)
125 Broad Street, 18th Floor
New York, NY 10004 USA
Phone: (212) 344-3005
URL: http://www.aclu.org/
Center for Equal Opportunity (CEO)
14 Pidegon Hill Drive, Suite 500
Sterling, VA> 20165 USA
Phone: (703) 421-5443
Fax: (703) 421-6401
E-Mail: comment@ceousa.org
URL: http://www.ceousa.org/
Primary Contact: Linda Chavez, President
Equal Employment Opportunity Commission
(EEOC)
1801 L Street, N.W.
Washington, DC 20507
Phone: (202) 663-4900
URL: http://www.eeoc.gov/
National Association for the Advancement of
Colored People (NAACP)
4805 Mt. Hope Drive
Baltimore, MD 21215
Phone: (410) 521-4939
URL: http://www.naacp.org/
E-Mail: members@naacp.org
CIVIL RIGHTS—RACIAL DISCRIMINATION
176 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CIVIL RIGHTS
RELIGIOUS FREEDOM
Sections within this essay:
• Background
• The Establishment Clause
- History Behind the Establishment
Clause
- Case Law Interpreting the Establish-
ment Clause
• The Free Exercise Clause
- History Behind the Free Exercise
Clause
- Case Law Interpreting the Free Exer-
cise Clause
• State Laws Protecting Religious Freedom
• Additional Resources
Background
The First Amendment to the U. S. Constitution
provides that ‘‘Congress shall make no law respect-
ing an establishment of religion or prohibiting the
free exercise thereof.’’ The U. S. Supreme Court has
interpreted this provision as guaranteeing two sepa-
rate rights: (1) the right to live in a society where the
government does not sponsor an official religion that
dictates what God citizens must worship or what
church they must attend; and (2) the right to exer-
cise one’s own religious faith in accordance with his
or her conscience free from governmental intrusion.
The first right is protected by the Establishment
Clause of the First Amendment, while the second
right is protected by the Free Exercise Clause of the
First Amendment. Both clauses have their origins in
American colonial history, and that history sheds
light on the subsequent development of the First
Amendment by state and federal courts.
The Establishment Clause
History Behind the Establishment Clause
Prior to the American Revolution, the English par-
liament designated the Anglican Church as the offi-
cial church of the England and the American colo-
nies. The church was supported by TAXATION, and
English citizens were required to attend services. No
marriage or baptism was sanctioned outside the
church. Religious minorities who failed to abide by
the strictures of the church were forced to endure
civil and criminal penalties, including banishment
and death. Some American colonies were also ruled
by theocrats, such as the Puritans in Massachusetts.
The English and colonial experiences influenced
the Founding Fathers, including Thomas Jefferson
and James Madison. Jefferson supported a high ‘‘wall
of separation’’ between church and state and op-
posed religious interference with the affairs of gov-
ernment. Madison, conversely, opposed governmen-
tal interference with matters of religion. For
Madison, the establishment of a national church dif-
fered from the Spanish Inquisition only in degree,
and he vociferously attacked any legislation that
would have led in this direction. For example, Madi-
son fought against a Virginia bill that would have lev-
ied taxes to subsidize Christianity.
The Founding Fathers’ concerns about the rela-
tionship between church and state found expression
in the First Amendment. Despite the unequivocal na-
ture of its language, the Supreme Court has never in-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 177
terpreted the First Amendment as an absolute prohi-
bition against all laws concerning religious
institutions, religious symbols, or the exercise of reli-
gious faith. Instead, the Court has turned for guid-
ance to the thoughts and intentions of the Founding
Fathers when interpreting the First Amendment, in
particular the thoughts and intentions of its primary
architect, James Madison.
But Madison’s views have not produced a uniform
understanding of religious freedom among the Su-
preme Court’s justices. Some justices, for example,
have cited Madison’s opposition to the Virginia bill
subsidizing Christianity as EVIDENCE that he opposed
only discriminatory governmental assistance to par-
ticular religious denominations but favored non-
preferential aid to cultivate a diversity in faiths. Thus,
the Framers of the First Amendment left posterity
with three considerations regarding religious estab-
lishments: (1) a wall of separation that protects gov-
ernment from religion and religion from govern-
ment; (2) a separation of church and state that
permits non-discriminatory governmental assistance
to religious groups; and (3) governmental assistance
that preserves and promotes a diversity of religious
beliefs.
Case Law Interpreting the Establishment
Clause
The Supreme Court attempted to incorporate
these three considerations under a single test in
Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29
L.Ed.2d 745 (1971). In Lemon the Court held that
state and federal governments may enact legislation
that concerns religion or religious organizations so
long as the legislation has a secular purpose, does
not have the primary effect of advancing or inhibiting
religion, and does not otherwise foster excessive en-
tanglement between church and state. Under this
test, the Supreme Court held that the First Amend-
ment prohibits schools from beginning each day
with a 22-word, non-denominational prayer. Engel v.
Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601
(1962). Such a prayer would be tantamount to the
government sanctioning religion at the expense of
agnosticism or atheism, the Court said, something
not permitted by the Establishment Clause.
Similarly, the Supreme Court struck down a cler-
gy-led prayer at a public school graduation ceremony
as violative of the First Amendment. Lee v. Weisman,
505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992).
By contrast, lower federal courts are split over the
issue of whether a student-led, non-denominational
prayer at a graduation ceremony violates the Estab-
lishment Clause, with some cases finding the prayers
unconstitutional because they are initiated on school
grounds at a school-sponsored activities and other
cases finding no constitutional violation because the
prayers are initiated by students and not public em-
ployees. However, the Supreme Court has ruled that
the First Amendment does permit state legislatures
to open their sessions with a short prayer each day.
Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77
L.Ed.2d 1019 (1983). The Supreme Court concluded
that history and tradition have secularized this other-
wise religious act.
The Court has produced seemingly inconsistent
results in other areas of First Amendment law as well.
In one case the Court permitted a municipality to in-
clude a nativity scene in its annual Christmas display,
Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79
L.Ed.2d 604 (1984), while in another case it prohibit-
ed a county courthouse from placing a cross on its
staircase during the holiday season. County of Alle-
gheny v. American Civil Liberties Union Greater Pitts-
burgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106
L.Ed.2d 472 (1989). In Allegheny the Court said that
there was nothing in the county courthouse to indi-
cate that the cross was anything other than a reli-
gious display, while in Lynch the Court said that the
nativity scene was part of a wider celebration of the
winter holidays.
The desire to avoid excessive entanglement be-
tween church and state has also produced a body of
law that often turns on subtle distinctions. On the
one hand, the Supreme Court ruled that public
school programs violate the Establishment Clause
when they allow public school students to leave class
early for religious training in classrooms located on
taxpayer-supported school property. McCollum v.
Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92
L.Ed. 649 (1948). On the other hand, such programs
pass constitutional muster if the students leave class
early for religious training off school grounds, where
all of the program’s costs are paid by the religious or-
ganizations. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct.
679, 96 L.Ed. 954 (1952).
The Free Exercise Clause
History Behind the Free Exercise Clause
The Establishment Clause and the Free Exercise
Clause represent opposite sides of the same issue.
Where the Establishment Clause focuses on govern-
mental action that would create, support, or endorse
CIVIL RIGHTS—RELIGIOUS FREEDOM
178 GALE ENCYCLOPEDIA OF EVERYDAY LAW
an official national religion, the Free Exercise Clause
focuses on the pernicious effects that governmental
action may have on an individual’s religious beliefs
or practices. Like the Establishment Clause, the Free
Exercise Clause was drafted in response to the
Founding Fathers’ desire to protect religious minori-
ties from persecution.
The Founding Fathers’ understanding of the Free
Exercise Clause is illustrated in part by the New York
Constitution of 1777, which provided that ‘‘the free
exercise and enjoyment of religious . . . worship,
without DISCRIMINATION or preference, shall forever
. . . be allowed . . . to all mankind.’’ (WEAL, v. 5, p.
37) However, the same constitution cautioned that
‘‘the liberty of conscience, hereby granted, shall not
be so construed as to excuse acts of licentiousness,
or justify practices inconsistent with the peace or
safety of this State.’’ The New Hampshire Constitu-
tion of 1784 similarly provided that ‘‘[e]very individ-
ual has a natural and unalienable right to worship
God according to the dictates of his own conscience,
and reason; and no subject shall be hurt . . . in his
person, liberty or estate for worshipping God’’ in a
manner ‘‘most agreeable’’ to those dictates, ‘‘provid-
ed he doth not disturb the public peace.’’ (WEAL, v.
5, p.37).
Case Law Interpreting the Free Exercise
Clause
These eighteenth-century state constitutional
provisions not only provide insight into the Found-
ing Fathers’ original understanding of the Free Exer-
cise Clause, they embody the fundamental tenants of
modern First Amendment JURISPRUDENCE. The Su-
preme Court has identified three principles underly-
ing the Free Exercise Clause. First, no individual may
be compelled by law to accept a particular religion
or form of worship. Second, all individuals are consti-
tutionally permitted to freely choose a religion and
worship in accordance with their conscience and
spirituality without interference from the govern-
ment. Third, the government may enforce its crimi-
nal laws by prosecuting persons whose religious
practices would thwart a compelling societal interest.
Only in rare instances is a law that infringes upon
someone’s religious beliefs or practices supported
by a compelling state interest. The Supreme Court
has held that no compelling societal interest would
be served in offending someone’s deeply held reli-
gious beliefs with a law coercing members of the Je-
hovah’s Witnesses to salute the American flag in pub-
lic schools (West Virginia State Board of Education
v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628
(1943), a law denying unemployment benefits to Sev-
enth Day Adventists who refuse to work on Saturdays
(Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10
L.Ed.2d 965 (1963)), or a law requiring Amish fami-
lies to keep their children in state schools until the
age of sixteen (Wisconsin v. Yoder, 406 U.S. 205, 92
S.Ct. 1526, 32 L.Ed.2d 15 (1972)). However, a com-
pelling governmental interest is served by the Inter-
nal Revenue System (IRS), such that no member of
any religious sect can claim exemption from paying
taxes. U. S. v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71
L.Ed.2d 127 (1982).
A different question is presented when the gov-
ernment disputes whether a particular belief or prac-
tice is actually religious in nature. In some instances
the Supreme Court is required to determine what
constitutes a ‘‘religion’’ for the purposes of the First
Amendment. For example, this determination occurs
when conscientious objectors resist the govern-
ment’s attempt to conscript them into military ser-
vice during wartime. Some draft resisters object to
war on moral or ethical grounds unrelated to ortho-
dox or doctrinal religions. If a conscientious objector
admits that he is atheistic or agnostic, the govern-
ment asks, how can he or she rely on the First
Amendment to avoid conscription when it protects
the free exercise of religion?
In effort to answer this question, the Supreme
Court has explained that the government cannot
‘‘aid all religions against non-believers’’ any more
than it can aid one religion over another. Torcaso v.
Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982
(1961). So long as a non-believer holds a sincere and
meaningful belief that occupies a place in that per-
son’s life parallel to the place held by God in a believ-
er’s life, then it qualifies as a religious belief under
the First Amendment. As to conscientious objectors,
the Court has ruled that the First Amendment will in-
sulate them from criminal prosecution if they resist
the draft based on ‘‘deeply and sincerely’’ held be-
liefs that ‘‘are purely ethical or moral in source and
content but that nevertheless impose . . . a duty of
conscience to refrain from participating in any war at
any time.’’ Welsh v. U. S., 398 U.S. 333, 90 S.Ct. 1792,
26 L.Ed.2d 308 (1970). However, a religious, moral,
or ethical belief that manifests itself in a person’s se-
lective opposition to only certain wars or military
conflicts is not protected by the Free Exercise Clause.
The same holds true for a religious, moral, or ethical
beliefs that are insincere.
In 1993 Congress attempted to add to the body
of law protecting the free exercise of religion by en-
CIVIL RIGHTS—RELIGIOUS FREEDOM
GALE ENCYCLOPEDIA OF EVERYDAY LAW 179
acting the Religious Freedom Restoration Act
(RFRA), which provided that the ‘‘[g]overnment
shall not substantially burden a person’s exercise of
religion,’’ unless in doing so it furthers ‘‘a compelling
governmental interest’’ and ‘‘is the least restrictive
means of furthering that . . . interest.’’ 42 U.S.C. §
2000bb-1(a). Congress enacted RFRA in response to
Employment Division v. Smith, 494 U.S. 872, 110
S.Ct. 1595, 108 L.Ed.2d 876, (1990), a Supreme Court
decision that upheld the denial of UNEMPLOYMENT
COMPENSATION claims made by two employees who
had been fired for ingesting an illegal drug during a
religious ceremony. In passing the law Congress
made a specific finding that the Supreme Court in
Smith ‘‘virtually eliminated’’ any requirement that
the government provide a compelling justification
for the burdens it places on the exercise of religion.
42 USCA § 2000bb. Congress hoped that RFRA would
restore that requirement.
The constitutionality of RFRA was immediately
challenged in a flurry of cases, one of which eventual-
ly made its way to the Supreme Court in City of Bo-
erne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138
L.Ed.2d 624 (1997). Acknowledging that section 5 of
the Fourteenth Amendment grants Congress the au-
thority to enforce the First Amendment through
measures that ‘‘remedy’’ or ‘‘deter’’ constitutional vi-
olations, the Supreme Court said that this authority
did not include the power to define ‘‘what consti-
tutes a constitutional violation.’’ Yet this is exactly
what Congress attempted to do by enacting RFRA,
the Court said. Congress cannot effectively overrule
Supreme Court precedent, the Court continued,
without violating the separation of powers and other
constitutional principles vital to maintaining the bal-
ance of power between the state and federal govern-
ments. The powers of the legislative branch are ‘‘de-
fined and limited,’’ the Court concluded, and only
the judicial branch of government is constitutionally
endowed with the authority to interpret and apply
the First Amendment or any other provision of the
federal Constitution. Thus, RFRA was declared un-
constitutional and the precedential value of Smith
was restored.
State Laws Protecting Religious Freedom
The Free Exercise and Establishment Clauses of
the First Amendment have been made applicable to
the states through the Fourteenth Amendment. In a
series of cases the Supreme Court has ruled that the
rights guaranteed by the First Amendment establish
the minimum amount of religious freedom that must
be afforded to individuals in state or federal court.
States may provide more religious freedom under
their own constitutions, but not less. Below is a sam-
pling of state court decisions decided at least in part
based on their own state constitution’s guarantee of
religious freedom.
ALABAMA: The state’s constitutional provision guar-
anteeing freedom of religion did not bar the court
from resolving a dispute between congregational fac-
tions over the title to church property, even though
spiritual issues arguably prompted the congrega-
tion’s dispute, since the case involved civil conflicts
of trusteeship and property ownership and required
the court to review church records and incorpora-
tion documents without delving into spiritual mat-
ters. U.S.C.A. Const.Amend. 1; Const. Art. 1, § 3. Mur-
phy v. Green, 794 So.2d 325 (Ala. 2000).
ARIZONA: A residential picketing STATUTE did not fa-
cially infringe upon the religious freedom guaran-
teed by the state and federal constitutions as they
were applied to an ABORTION protestor who was con-
victed for protesting abortion in a residential neigh-
borhood. Even though her protest was motivated by
a deeply held religious belief, the statute did not sin-
gle out religious picketing or religious demonstra-
tions for prohibition. U.S.C.A. Const.Amend. 1; A.R.S.
Const. Art. 20, par. 1; A.R.S. § 13-2909. State v. Bal-
dwin,184 Ariz. 267, 908 P.2d 483 (Ariz.App. Div. 1
1995)
CALIFORNIA: In guaranteeing the free exercise of re-
ligion ‘‘without discrimination or preference,’’ the
plain language of the state constitution ensures that
the state neither favor nor discriminate against reli-
gion. West’s Ann.Cal. Const. Art. 1, § 4. East Bay Asian
Local Development Corp. v. California, 24 Cal.4th
693, 13 P.3d 1122, 102 Cal.Rptr.2d 280 (Cal. 2000).
FLORIDA: Inherent in parents’ authority over their
unemancipated children living in their parents’
household is the parents’ right to require their chil-
dren to attend church with them as part of the chil-
dren’s religious training, and neither the state nor
federal constitutions entitle unemancipated minors
to prevent such parent-mandated religious training
on grounds that it violates the minors’ religious free-
dom. U.S.C.A. Const.Amend. 1; West’s F.S.A. Const.
Art. 1, § 3. L.M. v. State, 610 So.2d 1314 (Fla.App. 1
Dist. 1992).
ILLINOIS: A state statute permitting certain burials
on Sundays and legal holidays did not abridge the
CIVIL RIGHTS—RELIGIOUS FREEDOM
180 GALE ENCYCLOPEDIA OF EVERYDAY LAW
union members’ freedom to contract. Nor did it vio-
late the federal and state constitutional prohibitions
against impairment of contractual obligations, since
the statute’s provisions were narrowly drawn to per-
mit free exercise of religious rights guaranteed by the
state constitution while allowing labor to restrict its
working schedules accordingly. S.H.A. ch. 21, ¶ 101
et seq. Heckmann v. Cemeteries Ass’n of Greater
Chicago, 127 Ill.App.3d 451, 468 N.E.2d 1354, 82
Ill.Dec. 574 (Ill.App. 1 Dist. 1984).
MICHIGAN: The Michigan CIVIL RIGHTS Act’s prohi-
bition on housing discrimination based on marital
status did not violate the state constitution’s guaran-
tee of religious freedom, and thus the act was violat-
ed when two landlords refused to rent their apart-
ments to unmarried couples, even though their
refusal was based on religious grounds. M.C.L.A.
Const. Art. 1, § 4; M.C.L.A. § 37.2502(1). McCready
v. Hoffius, 459 Mich. 131, 586 N.W.2d 723 (Mich.
1998).
MISSOURI: State and federal constitutions guarantee
of religious freedom entitled a taxpayer to delete
every reference to God on the state’s tax form before
taking the oath or affirmation required by the form.
U.S.C.A. Const.Amend. 1; V.A.M.S. Const. Art. 1, §§
5, 7; V.A.M.S. § 137.155. Oliver v. State Tax Commis-
sioner of Missouri, 37 S.W.3d 243 (Mo. 2001).
MONTANA: The freedom of religion provisions set
forth in the state constitution protect the freedom to
accept or reject any religious doctrine, including reli-
gious doctrines relating to abortion, and the right to
express one’s faith in all lawful ways and forums.
Const. Art. 2, §§ 5, 7. Armstrong v. State, 296 Mont.
361, 989 P.2d 364 (Mont. 1999).
NEBRASKA: Ex parte communications in which a trial
judge during a capital murder case asked the jurors
to join hands, bow their heads, and say words to the
effect of ‘‘God be with us’’ did not infringe on the de-
fendant’s religious rights under the state or federal
constitutions, since the defendant’s rights to free-
dom of religion and to worship as he pleased did not
suffer in any way. U.S.C.A. Const.Amend. 1; Const.
Art. 1, § 4. State v. Bjorklund, 258 Neb. 432, 604
N.W.2d 169 (Neb. 2000).
NEW HAMPSHIRE: The state’s constitutional provi-
sion guaranteeing freedom of religion prohibited the
state from revoking a psychologist’s license for his
religious views but did not prohibit revocation for
acts that otherwise constituted unprofessional con-
duct, regardless of their religious character. Thus,
the court upheld the state’s revocation of the psy-
chologist’s license on the grounds that he had pro-
vided incompetent therapy to a patient, even though
part of the therapy involved reading the Bible. Const.
Pt. 1, Art. 5. Appeal of Trotzer, 143 N.H. 64, 719 A.2d
584 (N.H. 1998).
NEW YORK: The state constitution’s guarantee of re-
ligious freedom entitled a state correctional facility
inmate to participate in all Jewish religious obser-
vances open and available to any other inmate, even
though the inmate was not recognized as Jewish by
the Jewish chaplain at the facility. McKinney’s Const.
Art. 1, § 3; McKinney’s Correction Law § 610. Thomas
v. Lord, 174 Misc.2d 461, 664 N.Y.S.2d 973, 1997 N.Y.
Slip Op. 97576 (N.Y.Sup., 1997).
OHIO: A court order requiring that a noncustodial
parent pay 40 percent of his child’s tuition at a pri-
vate Catholic school did not violate the Establish-
ment Clause of the First Amendment or the religious
freedom provision of the state constitution. U.S.C.A.
Const.Amend. 1; Const. Art. 1, § 7. Smith v. Null, —-
Ohio App.3d ——, —- N.E.2d ——, 2001 WL 243419
(Ohio App. 4 Dist. 2001).
TEXAS: A state court could not hear a lawsuit alleging
that a church minister and his wife negligently or in-
tentionally misapplied the church’s doctrine in at-
tempting to drive out demons from plaintiff’s minor
daughter, since the lawsuit would involve a searching
inquiry into the church’s beliefs and the validity of
those beliefs, an inquiry that would infringe up the
defendants’ religious freedom. IN RE Pleasant Glade
Assembly of God, 991 S.W.2d 85 (Tex.App.-Fort
Worth 1998).
VERMONT: The state’s constitution expresses two
related, but different, concepts about the nature of
religious liberty: no governmental power may inter-
fere with or control an individual’s free exercise of
religious worship, and no person can be compelled
to attend or support religious worship against that
person’s conscience. Const. C. 1, Art. 3. Chittenden
Town School Dist. v. Department of Educ., 169 Vt.
310, 738 A.2d 539 (Vt. 1999).
WASHINGTON: Requiring a church to apply for a
conditional use permit in a rural estate ZONING dis-
trict, while requiring a county to reduce or waive the
application fee following a showing of the church’s
inability to pay, was not an impermissible burden on
the free exercise of religion guaranteed by the state
and federal constitutions. Open Door Baptist Church
v. Clark County, 140 Wash.2d 143, 995 P.2d 33 (Wash.
CIVIL RIGHTS—RELIGIOUS FREEDOM
GALE ENCYCLOPEDIA OF EVERYDAY LAW 181
2000). U.S.C.A. Const.Amend. 1; West’s RCWA Const.
Art. 1, § 11.
Additional Resources
American Jurisprudence. West Group, 1998.
West’s Encyclopedia of American Law. West Group, 1998.
U.S. Constitution: First Amendment. Available at: http://
caselaw.lp.findlaw.com/data/constitution/
amendment01
Organizations
American Bar Association
740 15th Street, N.W.
Washington, DC 20002 USA
Phone: (202) 544-1114
Fax: (202) 544-2114
URL: http://w ww.abanet.org
Primary Contact: Robert J. Saltzman, President
American Civil Liberties Union (ACLU)
1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
E-Mail: info@aclu.org
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive
Director
Association for Religion
50 Pintard Ave
New Rochelle, NY 10801-7148 USA
Phone: (914) 235-1439
Fax: (914) 235-1622
URL: http://w ww.ats.edu/faculty/spons/
A0000020.HTM
Primary Contact: John Crocker, Principal
CIVIL RIGHTS—RELIGIOUS FREEDOM
182 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CIVIL RIGHTS
SEXUAL DISCRIMINATION AND
ORIENTATION
Sections within this essay:
• Background
• Gender Discrimination
- Equal Pay Act
- Title VII of the Civil Rights Act
- Title VII: Sexual Harassment
- Civil Rights Act of 1991
- Title IX
- Pregnancy Discrimination Act and
Family and Medical Leave Act
- Supreme Court Standards for Sexual
Discrimination
• Sexual Orientation Discrimination
- The Supreme Court and Gay Rights
- Bowers v. Hardwick
- Romer v. Evans
- Boy Scouts of America v. Dale
- Other Supreme Court Decisions
• State And Municipal Sexual Orientation Anti-
Discrimination Laws
• Additional Resources
Background
‘‘Remember the ladies,’’ stated Abigail Adams to
her husband John in 1776 while he was helping to
draft the Declaration of Independence. Unfortunate-
ly, throughout most of American history, the ladies
were not remembered when it came to laws, as
women were treated at best as second-class citizens
and at worst as the virtual property of their hus-
bands. The past 40 years in U. S. law have witnessed
a gender revolution, starting with the passage of the
Equal Pay Act in 1963. In the process, areas of the law
that had never existed before, such as SEXUAL
HARASSMENT LITIGATION, were articulated and applied.
Six years after the Equal Pay Act was passed, riots
at the Stonewall Inn in New York City began the gay
rights movement. Legally, homosexuals were barely
recognized by the law except in anti-sodomy rules
virtually every state possessed. Today, gay rights are
at the cutting edge of sexual DISCRIMINATION law, an
area both unsettled and controversial. Sexual dis-
crimination law advanced a long way in the latter half
of the twentieth century. How much more it will ad-
vance remains an interesting question.
Gender Discrimination
Discrimination on the basis of sex was first ad-
dressed in federal law in the Equal Pay Act of 1963.
Since that act was passed, several other laws affecting
the rights of women have been enacted. They in-
clude:
• Title VII of the CIVIL RIGHTS Act of 1964
• The Civil Rights Act of 1991, which expanded
some of the protections granted by Title VII
• Title IX of the Education Amendments of
1972 (Title IX)
• The Pregnancy Discrimination Act of 1978
• The Family and Medical Leave Act of 1993
The Equal Pay Act
The Equal Pay Act, passed in 1963, was the first law
to address gender inequality in the workplace and
GALE ENCYCLOPEDIA OF EVERYDAY LAW 183
one of the first laws to benefit women explicitly since
they gained the right to vote earlier in the century.
The Equal Pay Act guaranteed equal pay for equal
work for men and women. For the act to take effect,
men and women must be employed under similar
working conditions, and equal is defined as ‘‘equal
skill, effort and responsibility.’’ Overtime and travel
are included among the provisions of the act.
The Equal Pay Act is part of the FAIR LABOR STAN-
DARDS ACT, although it is unlike the other parts of the
act in that there are no exceptions for executive, ad-
ministrative, professional employees, or outside
salespeople. But the Equal Pay Act contains the same
business exceptions as the Fair Labor Standards Act
and covers only employees ‘‘engaged in commerce.’’
In practice, this law applies to vast majority of busi-
nesses in the country.
There are four affirmative defenses to the Equal
Pay Act: merit, production, seniority, and ‘‘factor
other than sex.’’ The most litigated of these defenses
is the ‘‘factor other than sex’’ because of the ambigu-
ous nature of the clause. For example, prior wages,
profitability of the company, and evaluation of a per-
sonal interview have all been held to be a factor other
than sex justifying pay discrepancies between men
and women under the Equal Pay Act.
Title VII of the Civil Rights Act
Title VII, passed in 1964, is arguably the most im-
portant legislation protecting the equality of women
in the workplace. Title VII, which was originally pro-
posed as an anti-racial discrimination bill, included
sex as a protected class largely as an afterthought.
The amendment adding the term sex was proposed
by a conservative legislator from Virginia, probably as
a way of scuttling the whole bill. Despite this, Title
VII passed with its protections against sexual discrim-
ination intact.
Title VII prohibits discrimination by employers,
employment agencies, and labor organizations with
15 or more full-time employees on the basis of race,
color, religion, sex, or national origin. It applies to
pre-interview advertising, interviewing, hiring, dis-
charge, compensation, promotion, classification,
training, apprenticeships, referrals for employment,
union membership, terms, working conditions,
working atmosphere, seniority, reassignment, and all
other ‘‘privileges of employment.’’
The operative question in a Title VII SEX
DISCRIMINATION case is whether the litigant has suf-
fered unequal treatment because of his or her sex.
Courts look at whether the disparate treatment of
the employee was sex-related. If it was, it is action-
able under Title VII unless the employer uses an affir-
mative defense; if not, it is not actionable.
Affirmative defenses under Title VII include all of
the affirmative defenses under the Equal Pay Act. In
addition, defenses include situations in which sex is
a bona fide occupational requirement (BFOQ) for
the job; when sex discrimination occurs as a result
of adhering to a bona fide seniority system (unless
the system perpetuates past effects of sex discrimina-
tion); or when sex discrimination is justified by
‘‘business necessity.’’
When employers assert a mixed motive under
Title VII, that is, the action taken against the employ-
ee has both an discriminatory and non-
discriminatory reason, the employer must prove by
a preponderance of the EVIDENCE the employment
decision would have been made absent the discrimi-
natory factors.
Plaintiffs can also sue under Title VII using a theo-
ry of ‘‘disparate impact’’ that is, showing that while
an employment decision or policy is not discrimina-
tory on its face, it has resulted in discrimination on
the basis of sex. The intent of discrimination can be
inferred by the impact of the policy.
AFFIRMATIVE ACTION for women is allowed under
Title VII. In the decision of Johnson v. Transportation
Agency, Santa Clara County, the Supreme Court de-
termined an affirmative action program that promot-
ed a woman over a more qualified man was legal
under Title VII as long as her sex was just one factor
in the decision, and the affirmative action plan was
carefully drafted to remedy the effects of past dis-
crimination.
Title VII: Sexual Harassment
Title VII prohibits acts of sexual harassment when
such harassment becomes a ‘‘term or condition’’ of
employment, when rejection of the harassment
could be used as the basis for an employment deci-
sion or when such conduct creates an intimidating
‘‘hostile’’ work environment. The types of sexual ha-
rassment prohibited by Title VII are grouped into
two categories: QUID PRO QUO sexual harassment,
when the harassment is directly linked to the grant
or denial of an employee’s economic benefits, and
hostile environment harassment, when the harass-
ment creates a difficult working environment for an
employee. Because the first type of harassment is rel-
atively straightforward, the second type has been the
subject of more litigation.
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184 GALE ENCYCLOPEDIA OF EVERYDAY LAW
The Supreme Court has ruled that a hostile work-
ing environment is created when a workplace is per-
meated with ‘‘discriminatory intimidation, ridicule,
and insult’’ which is widespread enough to change
the conditions of employment for the person being
harassed. Hostile work environments have been held
by courts to be created when female employees are
subjected to pornographic pictures, to unsolicited
love letters and request for dates, and sexual innuen-
dos and crude remarks where those remarks were
pervasive.
Employees can sue for sexual harassment even
when they have suffered no TANGIBLE financial prob-
lems as a result of such harassment. They can sue
even though they have not experienced concrete
psychological injury because of the harassment.
However, such conduct must do more than offend
the employee. Moreover, the harassment does not
have to be cross-gender in nature. The Supreme
Court in 1998 held that same-sex harassment, e.g.
male sexual harassment of another male, is action-
able under Title VII.
The Civil Rights Act of 1991
The Civil Rights Act of 1991 enhanced the protec-
tions granted in Title VII. It added compensatory
(i.e., pain and suffering) damages and PUNITIVE
DAMAGES, sometimes known as exemplary damages,
for all victims of intentional discrimination. (Previ-
ously these had only been available for victims of ra-
cial discrimination.) These damages are capped from
$50,000 for employers with 100 or fewer employees
to $300,000 for employers with more than 500 em-
ployees. It also added a right to a jury trial. Previous-
ly, sex discrimination plaintiffs had to file an Equal
Pay Act or COMMON LAW FRAUD claim to get a jury trial.
The Act also made it easier to file disparate impact
cases by reversing a 1989 Supreme Court decision
and establishing that to disprove a disparate impact
charge, employers must show that the practice is job
related for the position in question and consistent
with business necessity. In addition, the Act allows
employees to file a discrimination charge at the time
they are affected by the discrimination, rather than
when they are first notified of the discriminatory act
and the Act applies Title VII to American citizens liv-
ing overseas.
Title IX
Title IX addresses sexual discrimination in the
area of education. It applies to all federally funded
educational institutions, including any college or uni-
versity ‘‘any part of which is extended federal finan-
cial assistance.’’ It provides that no person shall be
excluded from participation in or be subjected to dis-
crimination on the basis of sex in any educational ac-
tivity. Title IX has wrought an enormous change on
American schools and universities since its enact-
ment in 1972. It has forced schools to equalize sports
programs between men and women, resulting in a
boom for women’s athletics. It has caused the Su-
preme Court to hold single sex public colleges to be
unconstitutional, most famously in the case of the
Virginia Military Institute. Many hold Title IX respon-
sible for the tremendous increase in women in
postsecondary graduate schools since 1970, to the
point where women now make up half of all law and
medical students in the country.
The Pregnancy Discrimination Act and
Family and Medical Leave Act
The Pregnancy Discrimination Act of 1978 pro-
tects pregnant women by stating that employers
must treat pregnancy as a temporary DISABILITY, and
they may not refuse to hire a woman or fire her be-
cause she is pregnant or compel her to take materni-
ty leave.
The Family and Medical Leave Act of 1993 built
upon the rights granted under the Pregnancy Dis-
crimination Act. This act applies to employers of 50
or more employees, and permits up to 12 weeks of
unpaid leave for the birth, ADOPTION, or foster care
placement of a child; the serious medical condition
of a parent, spouse, or child; and the worker’s own
serious medical condition that prevents the worker
from performing the essential functions of his or her
job.
Except for highly paid positions, individuals must
be given back their former positions or one fully
equivalent. Employees are eligible for family or medi-
cal leave after working for 12 months or at least 1,250
hours. Part-time employees are eligible for such
leaves as these numbers average 24 hours a week.
Supreme Court Standards for Gender
Discrimination
The Supreme Court has dealt with a variety of
gender discrimination cases over the years. Until
1976, it used a rational basis test to determine wheth-
er the discrimination it was reviewing was constitu-
tional. Since 1976, beginning with the case of Craig
v. Boren, the court has used what is referred to as
‘‘intermediate’’ scrutiny in regard to gender discrimi-
nation cases. This standard states that a classification
based on gender must be reasonable, not arbitrary,
and must serve important governmental objectives
CIVIL RIGHTS—SEXUAL DISCRIMINATION AND ORIENTATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 185
and be substantially related to the achievement of
those objectives.
This scrutiny is less of standard than the court
uses in racial discrimination cases, which are subject
to strict scrutiny. A classification based on race must
serve a compelling government interest and be strict-
ly tailored to the achievement of the purpose. This
standard makes courts more willing to uphold a clas-
sification based on sex than to uphold one based on
racial classification.
Sexual Orientation Discrimination
In contrast to women over the last 40 years, ho-
mosexuals have seen slow progress in their attempts
for equal rights. In areas ranging from marriage and
family to job discrimination to organizations such as
the military and boy scouts, discrimination against
homosexuals is still sanctioned in a variety of ways.
The military, for example, currently has a policy of
‘‘don’t ask, don’t tell’’ implemented in 1993, which
allows a serviceman or woman to be discharged if he
or she publicly admits to being homosexual.
One of the biggest ways sexual orientation differs
from other suspect classifications such as race or sex
is there is no nationwide law dealing with discrimina-
tion against homosexuals. For example, Title VII has
been consistently held not to apply to discrimination
against homosexuals. Nevertheless, many states and
municipalities have adopted sexual orientation anti-
discrimination laws. As the twenty-first century be-
gins, there is clear movement toward gay rights in
the United States, at least in some regions and areas.
The Supreme Court and Gay Rights
In the absence of any national law on sexual orien-
tation discrimination, the Supreme Court decisions
on these issues have assumed a great importance.
The Supreme Court’s record on gay rights issues has
been mixed. The Court has issued three compara-
tively landmark decisions on gay rights since it first
tackled the issue in 1985, and several other less im-
portant holdings. The results are somewhat contra-
dictory.
Bowers v. Hardwick
In this 1986 case, the Court reviewed an anti-
sodomy STATUTE in Georgia. The plaintiff was arrest-
ed in his bedroom for having sex with another man.
The court ruled on a 5-4 vote that the constitutional
right to privacy did not apply to conduct between
members of the same sex. In handing down this rul-
ing, the court made a distinction between homosex-
ual behavior and actions such as BIRTH CONTROL,
ABORTION, and interracial marriage. While the court
had previously found that all of these were covered
by the right to privacy in the due process clause of
the Fourteenth Amendment, homosexual acts were
not covered by this clause, according to the Court.
Bowers v. Hardwick has never been overturned, and
many states still have anti-sodomy laws on the books,
although they are rarely enforced.
Romer v. Evans
In contrast to Bowers v. Hardwick, Romer v. Evans
was considered a big victory for gay rights. In 1992,
Colorado voters had approved Amendment 2, which
prohibited or preempted any law or policy ‘‘whereby
homosexual, lesbian or bisexual orientation, con-
duct, practices or relationships shall constitute or
otherwise be the basis of or entitled any person or
class of persons to have or claim any minority status,
quota preference, protected status or claim of dis-
crimination’’ In other words, the law banned any Col-
orado municipality from passing an sexual orienta-
tion anti-discrimination law.
The Supreme Court ruled in a 6-3 decision in 1996
that Amendment 2 violated homosexuals EQUAL
PROTECTION rights in Colorado. Applying the rational
basis test, which requires that a policy or law discrim-
inating against a specific non-protected class have a
rational relationship to a legitimate PUBLIC INTEREST,
the court determined that a ‘‘desire to harm a politi-
cally unpopular group cannot constitute a legitimate
government interest.’’ The Court noted that Amend-
ment 2 identified homosexuals by name and denied
them equal protection across the board. ‘‘[It’s] shear
breadth is so discontinuous with the reasons offered
for it that the amendment seems inexplicable by any-
thing but animus toward the class it affects,’’ said the
Court. The Court’s decision in Evans seemed to indi-
cate the Court would accept some equal protection
rights for homosexuals, though it certainly did not
offer the same protection to sexual orientation dis-
crimination as it would to race or sex.
Boy Scouts of America v. Dale
The Supreme Court did another reversal in 2000
and ruled in the case of Boy Scouts of America v.
Dale that a private organization had a right not allow
in homosexuals under the theory of freedom of asso-
ciation. In this case, the Boy Scouts of America had
dismissed a scout leader who was openly homosexu-
al. The court determined that a New Jersey public ac-
commodation law, which required organizations
CIVIL RIGHTS—SEXUAL DISCRIMINATION AND ORIENTATION
186 GALE ENCYCLOPEDIA OF EVERYDAY LAW
using public facilities in the state not to discriminate
on the basis of sexual orientation, violated the scouts
First Amendment rights. ‘‘Forcing a group to accept
certain members may impair the ability of the group
to express those views, and only those views, that it
intends to express,’’ said the Court, which added that
‘‘the presence of Dale as an assistant scoutmaster
would... interfere with the Boy Scouts’ choice not to
propound a point of view contrary to its beliefs.’’
This decision was differentiated from the way the
court had refused to apply freedom of association
rights in the past when dealing with gender and ra-
cial discrimination. ‘‘Until today,’’ Justice John Paul
Stevens pointed out in a dissent, ‘‘we have never
once found a claimed right to associate in the selec-
tion of members to prevail in the face of a State’s
anti-discrimination law.’’
Other Supreme Court Decisions
Several other Supreme Court rulings were handed
down in the 1990s on the issue of homosexual rights.
These rulings did not have the impact of the above
three, although they also yielded a mixed position on
gay rights. Onacle v. Sundowner Offshore Services in
1998 found the Court unanimously ruling that same
sex harassment was actionable under Title VII. The
Court found even though same sex harassment was
not contemplated by the statute, ‘‘statutory prohibi-
tions often go beyond the principal evil to cover rea-
sonably comparable evil.’’ The 1998 case of Bragdon
v. Abbott found a divided Supreme Court allowing
persons with HIV to be considered disabled under
the Americans With Disabilities Act, even when the
disease had not progressed to a symptomatic stage.
This action was considered a major gay rights victory.
In summary, Supreme Court decisions on gay rights
since Hardwick v. Bowers have not laid out a clear
path either for or against sexual orientation discrimi-
nation. It remains to be seen whether the Supreme
Court will clarify this more in the future.
State And Municipal Sexual Orientation
Anti-Discrimination Laws
While the Supreme Court has failed to set a con-
sistent national policy regarding sexual orientation
discrimination, many states and municipalities have
taken the lead in passing protections for homosexu-
als in areas such as employment and public accom-
modations. The first of these were passed in the early
1970s, subsequently hundreds of municipalities and
many states have adopted anti-sexual orientation
protections.
Probably the most famous anti-discrimination sex-
ual orientation law was Vermont’s Civil Union Law,
passed in the year 2000, which permits same-sex cou-
ples to enter into ‘‘civil union’’ relationships. The
law, while not using the language of marriage, gives
same-sex couples virtually all of the 300 or so rights
available to married couples.
No other state gives same-sex couples this sort of
protection, but several other states currently have
anti-discrimination laws and protection for homosex-
uals:
CALIFORNIA: Protections against discrimination in
employment and public accommodations
CONNECTICUT: Protections against discrimination
in employment, public accommodation, housing,
and credit
DISTRICT OF COLUMBIA: Protections against dis-
crimination in employment, public accommodation,
housing, and credit, although religious educational
institutions are exempt from protections
HAWAII: Protections against discrimination in em-
ployment
ILLINOIS: Protections against discrimination in pub-
lic employment
MARYLAND: Protections against discrimination in
employment
MASSACHUSETTS: Protections against discrimina-
tion in employment, public accommodation, hous-
ing, and credit
MINNESOTA: Protections against discrimination in
employment, public accommodation, housing, and
credit
NEVADA: Protections against discrimination in em-
ployment
NEW HAMPSHIRE: Protections against discrimina-
tion in employment, public accommodation, and
housing
NEW JERSEY: Protections against discrimination in
employment, public accommodation, housing, and
credit
NEW YORK: Protections against discrimination in
public employment
PENNSYLVANIA: Protections against discrimination
in public employment
CIVIL RIGHTS—SEXUAL DISCRIMINATION AND ORIENTATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 187
RHODE ISLAND: Protections against discrimination
in employment, public accommodation, housing,
and credit
VERMONT: Protections against discrimination in em-
ployment, public accommodation, housing, and
credit, civil union law
WASHINGTON: Protections against discrimination in
public employment
WISCONSIN: Protections against discrimination in
employment, public accommodation, housing, and
credit
Additional Resources
An Analysis of the U. S. Supreme Court’s Decision Making
In Gay Rights Cases. Johnson, Scott Patrick, Ohio
Northern University Law Review, 2001.
Gaylaw: Challenging the Apartheid of the Closet Eskridge,
William N., Jr., Harvard University Press, 1999.
Fighting Gender and Sexual Orientation Harassment:
The Sex Discrimination Argument in Gay Rights Cases.
Hunter, Nan, Journal of Law and Policy, 2001.
Recent Decisions: Harris v. Forklift Systems, Inc. Gleeson,
Kathleen, Duquesne Law Review, Fall 1994.
Sex Discrimination. Motto, Patricia, Illinois Institute for
Continuing Legal Education, July 2000.
Sex Discrimination. Thomas, Claire Sherman, West
Group, 1991.
U. S. Code, Title 20: Education, Chapter 38: Discrimina-
tion Based on Sex or Blindness. U. S. House of Repre-
sentatives, 1999. Available at: http://uscode.house.gov/
title_20.htm
U. S. Code, Title 42: The Public Health and Welfare, Chap-
ter 21: Civil Rights, Subchapter VI: Equal Employment
Opportunities. U. S. House of Representatives, 1999.
Available at http://uscode.house.gov/title_42.htm
Organizations
Concerned Women for America (CWA)
1015 Fifteenth St. NW, Suite 1100
Washington, DC 20005 USA
Phone: (202) 488-7000
Fax: (202) 488-0806
URL: http://www.cwfa.org/
Primary Contact: Beverly LaHaye, President
Lambda Legal Defense and Education Fund
120 Wall Street, Suite 1500
New York, NY 10005-3904 USA
Phone: (212) 809-8585
Fax: (212) 809-0055
URL: www.lamdalegal.org
Primary Contact: Kevin Cathcart, Executive
Director
National Organization For Women (NOW)
733 15th St NW, 2nd Floor
Washington, DC 20005 USA
Phone: (202) 628-8NOW (8669)
Fax: (202) 785-8576
URL: http://www.now.org/
Primary Contact: Kim Gandy, President
CIVIL RIGHTS—SEXUAL DISCRIMINATION AND ORIENTATION
188 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CIVIL RIGHTS
VOTING RIGHTS
Sections within this essay:
• Background
• The Nineteenth Amendment
• Black Suffrage
• Grandfather Clauses, Literacy Tests, and the
White Primary
• The Fifteenth Amendment
• The Voting Rights Act
- Section Two and Section Five
- Malapportioned Districts
• Minority Majority Districts
• Additional Resources
Background
During colonial times, the right to vote (also
known as being enfranchised) was severely limited.
Mostly, adult white males who owned property were
the only people with the right to vote. Women could
not vote, though some progressive colonies allowed
widows who owned property to vote. After the Unit-
ed States gained its independence from Great Brit-
ain, the Constitution gave the states the right to de-
cide who could vote. Individually, the states began
to abolish property requirements and, by 1830, adult
white males could vote. Suffrage (the right to vote)
has been gradually extended to include many peo-
ple, and the U.S. Constitution has been amended
several times for this purpose. A time line of major
developments in U.S. voting rights contains at least
the following seventeen events:
• 1789: The first presidential election is held,
electing George Washington by unanimous
vote of the country’s ‘‘electors,’’ a group of
mostly white male landowners.
• 1868: The Fourteenth Amendment declares
that any eligible twenty-one year old male
has the right to vote.
• 1870: The Fifteenth Amendment says that
the right to vote cannot be denied ‘‘on ac-
count of race, color, or previous condition
of servitude,’’ thus extending the right to
vote to former (male) slaves.
• 1876: Wyoming becomes a state, and is the
first state to give voting rights to women.
• 1884: The U.S. Supreme Court rules ‘‘grand-
father clauses’’ unconstitutional.
• 1890: Southern states pass laws designed to
limit the voting rights of African Americans.
Some of the laws require voters to pay a poll
tax or to prove that they can read and write.
• 1920: The U.S. Supreme Court rules that
since Native Americans who live on reserva-
tions pay no state taxes, they cannot vote.
• 1920: Women gain the vote when the Nine-
teenth Amendment declares that the right to
vote cannot be denied ‘‘on account of sex.’’
• 1947: A court ruling grants Native Americans
the right to vote in every state.
• 1961: The Twenty-third Amendment estab-
lishes that the citizens of the District of Co-
lumbia have the right to vote in presidential
elections. D.C. is given 3 electoral votes.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 189
• 1964: The Twenty-fourth Amendment de-
clares that the states cannot require citizens
to pay a poll tax in order to vote in federal
elections.
• 1965: Voting Rights Act bans literacy tests as
a voting requirement and bars all racist vot-
ing practices in all states.
• 1971: The Twenty-Sixth Amendment lowers
the voting age to 18 and gives all Americans
the right to vote.
• 1975: Additions to the Voting Rights Act re-
quire translations of all election materials to
be made available for non-English speaking
citizens.
As this list illustrates, suffrage has been expanded
to include a greater number of people belonging to
diverse demographic groups based on age, sex, and
race. Without a doubt, the most dramatic and contro-
versial developments in the history of U.S. voting
rights expansion involves the movement to grant suf-
frage to women and African Americans. For African
Americans, this includes a long history of ensuring
unimpeded access to the polls in order to exercise
their constitutional right to vote. For women, gaining
suffrage was a very long struggle as well.
The Nineteenth Amendment
The Nineteenth amendment to the United States
Constitution guarantees U.S. women the right to
vote. But this right was not easily won for women. It
took many decades of political agitation and protest
before such a right became part of U.S. law. The
struggle for women’s right to vote began in the mid-
dle of the nineteenth century. A movement arose
that included several generations of woman suffrage
supporters, who became known as suffragettes.
These women lectured, wrote articles, marched, lob-
bied, and engaged in acts of civil disobedience to
achieve what many Americans then considered to be
an enormous change in the Constitution. Few of the
movement’s early supporters lived to see the amend-
ment ratified in 1920.
The amendment was first introduced in Congress
in 1878, but it was ratified on August 18, 1920. Those
who supported voting rights for women used a vari-
ety of strategies to achieve their goal. Some worked
to pass suffrage acts in each state; their efforts result-
ed in nine western states adopting female suffrage
legislation by 1912. Others used the courts to chal-
lenge male-only voting laws. Some of the more mili-
tant suffragettes organized parades, vigils, and even
hunger strikes. Suffragettes frequently met resis-
tance and even open hostility. They were heckled,
jailed, and sometimes even attacked physically.
By 1916, however, almost all of the major female
suffrage organizations had agreed that the best strat-
egy was to pursue the goal of a CONSTITUTIONAL
AMENDMENT. The following year, New York granted
suffrage to women. This was quickly followed in 1918
by President Woodrow Wilson’s change in his posi-
tion to support an amendment in 1918. These impor-
tant events helped shift the political balance in favor
of the vote for women. Then, on May 21, 1919, the
U.S. House of Representatives passed the amend-
ment, followed in two weeks by the Senate. With
Tennessee becoming the 36th state to ratify the
amendment on August 18, 1920, the amendment
had thus been ratified by three-fourths of the states.
The U.S. Secretary of State, Bainbridge Colby, certi-
fied the RATIFICATION on August 26, 1920, and
women had gained the constitutional right to vote.
Women’s collective experience in pursuit of this goal
differed significantly from that of Black Americans,
who had actually gained the right much earlier but
who had to struggle against sustained efforts to cur-
tail their exercise of this right.
Black Suffrage
Prior to the Civil War, free blacks were denied the
right to vote everywhere but in New York and several
New England states. By the close of the Civil War, suf-
frage for African Americans had become a possibility
throughout the country. The Reconstruction Act of
1867 imposed conditions on former states of the
Confederacy for re-admission to the Union. Some of
these conditions touched on black suffrage. For ex-
ample, former Confederate states were required to
call conventions to which blacks could be elected as
delegates and devise new state constitutions guaran-
teeing voting rights to black men. By the end of regis-
tration for 1867, more than 700,000 southern black
men had been added to the rolls. By 1872 there were
342 black officials elected to state legislatures and to
the U.S. Congress. Despite such progressive legisla-
tion, not all black CIVIL RIGHTS or suffrage measures
succeeded. Constitutional amendments that would
have prohibited states from imposing birth require-
ments, property ownership, or literacy tests, as well
as giving the federal government complete control
over voting rights were rejected.
CIVIL RIGHTS—VOTING RIGHTS
190 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Unfortunately, the progress of black voting rights
can be characterized as a stumbling trajectory of suc-
cess. There were gains, often followed by severe set-
backs. For example, in 1870 and 1871 three Enforce-
ment Acts were passed that strengthened the
constitutional guarantee of black voting rights. More-
over, the year 1870 also witnessed the ratification of
the Fifteenth Amendment. However, just a few years
later, two Supreme Court decisions, United States v.
Reese (1876) and United States v. Cruikshank
(1876), weakened the Fourteenth and Fifteenth
Amendments. By 1877, the Union was withdrawing
federal troops from the South as a compromise with
Democrats to allow the election of Rutherford B.
Hayes as president of the United States. This move
gave the largely racist Southern Democrats control
over the lives of blacks including black suffrage. Ac-
cordingly, this and other like-minded groups
launched a wave of repressive measures to curtail the
freedoms of blacks in the South.
Grandfather Clauses, Literacy Tests, and
the White Primary
After the Civil War and Reconstruction, southern
states employed a range of tactics to prevent blacks
from exercising their right to vote. They used vio-
lence, vote FRAUD, gerrymandering, literacy tests,
white primaries, among others. These tactics caused
registration by blacks to drop significantly. Such mea-
sures as the poll tax, literacy tests, grandfather
clauses, and the white primary proved especially ef-
fective in disfranchising blacks.
The poll tax, as it applied to primary elections
leading to general elections for federal office, was
abolished in the Twenty-fourth Amendment, ratified
in 1964. Qualifications to vote based on some ele-
ment of property ownership have a history that ex-
tends to colonial days. However, the poll tax was in-
stituted in seven southern states following
Reconstruction. The poll tax was a flat fee required
before voting; it was often levied as high as $200 per
person. The voting rights of poor blacks were dispro-
portionately discriminated against in this method.
The U.S. Congress eventually came to view the fi-
nancial qualification as an impediment to individuals’
suffrage rights. Despite Congressional sentiment,
though, a constitutional amendment was necessary
to abolish poll taxes, as the poll tax had previously
withstood constitutional challenges in the courts.
Even with the ratification of the Twenty-fourth
Amendment, some states continued to look for ways
to use poll taxes as an impediment to blacks’ exercis-
ing their right to vote. Finally, in the 1965 opinion in
the case of Harman v. Forssenius, the Supreme
Court struck down a Virginia law which had partially
eliminated the poll tax as an absolute qualification for
voting in federal elections. The Virginia law had given
voters in federal elections the choice of either paying
the tax or of filing a certificate of residence six
months before the election. The Court found the lat-
ter requirement to be an unfair procedural require-
ment for voters in federal elections, particularly be-
cause the law was not imposed on those who
otherwise agreed to pay the poll tax. The Court
unanimously held the law to conflict with the Twen-
ty-fourth Amendment as it penalized those who
chose to exercise a right guaranteed them by the
amendment.
There were many uneducated African Americans
in the post-Civil War era. Literacy tests were used to
help exclude them from the polls. However, whites
found that literacy tests also would exclude large
numbers of whites from becoming eligible voters
since many whites could not read or write either. As
a remedy, some jurisdictions adopted a ‘‘reasonable
interpretation’’ clause; these laws gave voting regis-
trars discretion to evaluate applicants’ performance
on literacy tests. The effect was predictable: most
whites passed and most blacks did not. By the begin-
ning of the twentieth century, almost every black had
been disfranchised in the South.
Grandfather clauses, a peculiarly irksome impedi-
ment to achieving voting rights for African Ameri-
cans, were enacted by seven Southern states be-
tween 1895 and 1910. These laws provided that
those who had enjoyed the right to vote prior to
1866 or 1867 or their lineal descendants would be ex-
empt from educational, property, or tax require-
ments for voting. Because former slaves had not
been granted the right to vote until the Fifteenth
Amendment was ratified in 1870, these clauses effec-
tively excluded blacks from the vote. At the same
time, grandfather clauses assured the right to vote to
many impoverished, ignorant, and illiterate whites.
In 1915, the U.S. Supreme Court finally declared the
GRANDFATHER CLAUSE unconstitutional because it vio-
lated equal voting rights guaranteed by the Fifteenth
Amendment.
The so-called white primary was a tactic Southern
whites used in which the Democratic Party was de-
clared a private organization that could exclude
whomever it pleased. State party rules or state laws
CIVIL RIGHTS—VOTING RIGHTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 191
that excluded blacks from the Democratic primary
virtually disenfranchised all blacks (and only blacks)
by keeping them out of the election that generally
determined who would hold office in a state that was
dominated by the Democratic Party. In 1944, the
white primary was ruled unconstitutional in the U.S.
Supreme Court case of Smith v. Allwright.
The Fifteenth Amendment
The Fifteenth Amendment to the United States
Constitution was ratified in 1870, just a few years
after the end of the Civil War. This Amendment pro-
hibits both federal and state governments from in-
fringing on a citizen’s right to vote ‘‘on account of
race, color, or previous condition of servitude.’’ The
Fifteenth Amendment is the third of three ‘‘Recon-
struction Amendments’’ ratified in the aftermath of
the Civil War. The other two are the Thirteenth
Amendment that abolished slavery, and the 14th
Amendment granted citizenship to all persons,
‘‘born or naturalized in the United States.’’
Prior to the Fifteenth Amendment, the states were
empowered to set the qualifications for the right to
vote. The Fifteenth Amendment essentially trans-
ferred this power to the federal government. Its rati-
fication, however, had little effect for nearly a centu-
ry. It had practically no effect in southern states,
which devised numerous ways such as poll taxes and
grandfather clauses to keep blacks from voting. Over
time, federal laws and Supreme Court judicial opin-
ions eventually struck down voting restrictions for
blacks. Eventually, Congress passed the Civil Rights
Act of 1957 which established a commission to inves-
tigate voting DISCRIMINATION. And in 1965 the Voting
Rights Act was passed to increase black voter regis-
tration by empowering the JUSTICE DEPARTMENT to
closely monitor voting qualifications.
The Voting Rights Act
The VOTING RIGHTS ACT OF 1965 (VRA) is argu-
ably the most significant piece of federal legislation
aimed at enforcing and protecting the voting rights
of minorities. While the Fifteenth Amendment en-
franchises African Americans, it does not necessarily
clear the way to the polls for them. After nearly a cen-
tury of countenancing various forms of intimidation
and legalistic obstructions to black voters, the federal
government passed sweeping legislation that fills im-
portant gaps in African Americans’ constitutional
right to vote. The VRA essentially mandates access to
the polls for minority groups. The VRA prevents
states from enforcing a range of discriminatory prac-
tices legislated to prevent African Americans from
participating in the voting process. As a result of the
VRA, the federal government intervened directly in
areas where African Americans had been denied the
right to vote.
Section Two and Section Five
Sections Two and Five of the VRA are especially
important. Section 2 prohibits attempts to dilute the
votes of minorities. Dilution occurs when the full ef-
fect of a block of voters is deliberately and unfairly
negated. Vote dilution can occur through legislation
or other situations that weaken the voting strength
of minorities. Section Two prohibits cities and towns
from establishing practices designed to prevent mi-
norities a fair chance to elect candidates of their
choice. Section Two is enforceable nationwide.
Section Five of the VRA requires certain designat-
ed areas of the country to obtain ‘‘pre-clearance’’
from the U.S. attorney general or the U.S. District
Court for the District of Columbia for any changes
that impact voting. These special areas are called
‘‘covered jurisdictions.’’ Accordingly, covered juris-
dictions must obtain approval before they can ad-
minister any new electoral practices. All areas in the
following states are subject to Section Five pre-
clearance.
• Alabama
• Alaska
• Arizona
• Georgia
• Louisiana
• Mississippi
• South Carolina
• Texas
• Virginia
Parts of the following states are also subject to pre-
clearance:
• California
• Florida
• Michigan
• New Hampshire
• New York
• North Carolina
CIVIL RIGHTS—VOTING RIGHTS
192 GALE ENCYCLOPEDIA OF EVERYDAY LAW
• South Dakota
Section Five was necessary because of the pur-
pose or intent in some areas to dilute or weaken the
strength of minority voters. They did this by chang-
ing electoral rules such that minorities had de-
creased opportunities to elect someone of their
choice. Additionally, Section 5 considers the effect of
a proposed change. The U.S. attorney general or the
U.S. District Court for the District of Columbia con-
siders whether the proposed change will lead to a
worsening of the position of minority voters, an ef-
fect known as ‘‘retrogression.’’
In 1975 an important amendment was added to
the VRA to include rights for language minorities.
These amendments required jurisdictions to provide
bilingual ballots and even translation services to
those who speak any of the following languages:
• Spanish
• Chinese
• Japanese
• Korean
• Native American languages
• Eskimo languages
Malapportioned Districts
The first version of the VRA was insufficient to pre-
vent efforts to continue vote dilution. Many areas
had a winner-take-all, at-large electoral system, as
well as severely malapportioned districts. Malappor-
tioning, also known as ‘‘gerrymandering,’’ is the de-
liberate rearrangement of the BOUNDARIES of con-
gressional districts with the intent to influence the
outcome of elections. Gerrymandering either con-
centrates opposition votes in a few districts to gain
more seats for the majority in surrounding districts
(a process called packing) or diffuses minority votes
across many districts (called dilution). The term
came about in 1812 when Massachusetts’s governor
Elbridge Gerry created a district for political pur-
poses that resembled a salamander.
The at-large electoral system where representa-
tives are chosen area-wide dilutes minority voting
strength because whites so frequently outnumber
blacks. In 1973 the U.S. Supreme Court in the case
of White v. Register ruled that at-large elections were
unconstitutional if they diluted or minimized minori-
ty votes.
In terms of malapportionment, there were prob-
lems of state legislatures adhering to outmoded rural
interests. For example, in the 1962 case Baker v.
Carr, malapportionment claims from some of Ten-
nessee’s big cities were found justifiable under the
Fourteenth Amendment. Baker v. Carr involved
APPORTIONMENT schemes whereby less populated
rural counties had obtained disproportionate politi-
cal strength as opposed to the densely populated cit-
ies.
Such malapportionment procedures became
tinged with racism as redistricting practices maxi-
mized the political advantage or votes of one group
and minimized the political advantage or votes of an-
other. In Gomillion v. Lightfoot, the board of super-
visors in Tuskegee, Alabama, annexed territory to in-
crease the size of the city, but excluded all the blacks
around the city. The Supreme Court found that such
racial gerrymandering violated constitutional guaran-
tees. A related case, Reynolds v. Sims put a stop to
a gerrymandering scheme that discriminated heavily
against populated urban areas in favor of rural areas
and small towns. Through such cases, the U.S. Su-
preme Court advanced toward the goal of full and ef-
fective participation by all citizens in state govern-
ment.
Minority Majority Districts
Through the VRA, the federal government moved
to guarantee access for all citizens to the ballot. Even
so, the right to vote did not necessarily translate into
electing representatives for voters who were in the
minority. In jurisdictions, particularly in the South,
voters who historically had faced racial discrimina-
tion (African-Americans, Latinos, Asian-Pacific Ameri-
cans and Native Americans) had been unable to elect
candidates of their choice unless they constituted a
majority of voters in a given electoral district. In
1982, Congress amended the VRA to include require-
ments that certain jurisdictions provide minority vot-
ers opportunities to elect candidates of their choice.
Initially, these jurisdictions turned minority popu-
lations into a majority through re-drawing legislative
districts. This created an overall racial majority from
a formerly minority population in a particular district.
But this approach has serious drawbacks, especially
when a minority group is not centralized, but is dis-
persed geographically or interspersed with other
groups of voters. Consequently, these race-
conscious districts encountered setbacks at the Su-
preme Court, which outlawed explicit ‘‘racial gerry-
manders.’’
CIVIL RIGHTS—VOTING RIGHTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 193
As a result of many legal disputes and public con-
troversies concerning effective minority representa-
tion, courts have ordered ward-based systems (sin-
gle-member districts) as remedies in vote dilution
cases. This supports the notion that the best deter-
minant of a black candidate’s electoral success is the
racial composition of the electoral jurisdictions. But
in the 1993 Supreme Court decision of Shaw v. Reno,
the Court declared that a North Carolina reappor-
tionment scheme constituted racial gerrymandering
under the EQUAL PROTECTION Clause of the Four-
teenth Amendment. This ruling allows white voters
to object to what they perceive as racially motivated
districting. Cases similar to Shaw, and cases resulting
from the Shaw decision filled the courts. Voting
rights attorneys, civil rights groups, and community
activists defended majority minority voting districts
and to protect them in light of the Shaw decision.
Many would agree that the VRA is perhaps the
most significant piece of legislation designed to se-
cure minority electoral rights. However, the VRA is
vulnerable to attack on the grounds that it may over-
extend its original mandate. Some have argued that
proponents of the VRA have confused the ‘‘right to
vote’’ with the ‘‘right to be elected.’’ Many people of
color have won federal, state, and local elections.
Their success may not have been possible without
such aggressive policy measures as the VRA. Yet de-
spite the protections of the VRA, courts continue to
address controversies surrounding new methods to
dilute the collective strength of black voters.
The creation of majority-black districts has been
the overarching federal policy regarding minority
representation after the VRA was enacted. Even so,
there are many views about the need and effective-
ness of majority-black districts. Likewise, the case of
Shaw v. Reno places majority-black districting in a
somewhat tenuous position as more and more
groups of whites begin to assert that redistricting
plans have resulted in a new kind of ‘‘political apart-
heid,’’ preventing them from full and effective use of
the ballot. Efforts continue to work out a solution
that passes constitutional muster and it remains to
be seen what that solution will be.
Additional Resources
Along Racial Lines: Consequences of the 1965 Voting
Rights Act. David M. Hudson, Peter Lang Publishing,
1998.
The Appearance of Equality: Racial Gerrymandering, Re-
districting, and the Supreme Court. Christopher Mat-
thew Burke, Greenwood Publishing Group, 1999.
A Free Ballot and a Fair Count: The Department of Justice
and the Enforcement of Voting Rights in the South,
1877-1893. Robert Michael Goldman, Fordham Univer-
sity Press, 2001.
Feminism and Suffrage: The Emergence of an Indepen-
dent Women’s Movement in America, 1848-1869. Ellen
Carol Dubois, Cornell University Press, 1999.
Struggle for Mastery: Disfranchisement in the South, 1888-
1908. Michael Perman, University of North Carolina
Press, 2001.
Voting Rights and Redistricting in the United States. Edited
by Mark E. Rush, Greenwood Publishing Group, 1998.
Voting Rights on Trial: A Handbook with Cases, Laws, and
Documents. Charles L. Zelden, ABC-CLIO, 2002.
Organizations
The Center for Voting and Democracy (CVD)
6930 Carroll Ave. Suite 610
Takoma Park, MD 20912 USA
Phone: (301) 270-4616
Fax: (301) 270-4133
E-Mail: info@fairvote.org
URL: http://www.fairvote.org/index.html
Federal Election Commission (FEC)
999 E Street, NW
Washington, DC 20463 USA
Phone: (202) 694-1100
E-Mail: Webmaster@fec.gov
URL: http://www.fec.gov/
Joint Center for Political and Economic
Studies (JCPES)
1090 Vermont Ave., NW, Suite 1100
Washington, DC 20005-4928 USA
Phone: (202) 789-3500
Fax: (202) 789-6390
E-Mail: athompson@jointcenter.org
URL: http://www.jointctr.org/index.html
League of Women Voters (LWV)
1730 M Street NW, Suite 1000
Washington, DC 20036-4508 USA
Phone: (202) 429-1965
Fax: (202) 429-0854
E-Mail: lwv@lwv.org
URL: http://www.lwv.org/
National Voting Rights Institute (NVRI)
One Bromfield Street, 3rd Floor
Boston, MA 02108 USA
Phone: (617) 368-9100
Fax: (617) 368-9101
CIVIL RIGHTS—VOTING RIGHTS
194 GALE ENCYCLOPEDIA OF EVERYDAY LAW
E-Mail: nvri@nvri.org
URL: http://www.nvri.org/
CIVIL RIGHTS—VOTING RIGHTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 195
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CONSUMER ISSUES
ADVERTISING
Sections within this essay:
• Background
• Bureau of Consumer Protection
- Advertising Agency Obligations
- Publisher Obligations
- Franchises and Businesses
- Telemarketing Sales
- Environmental Marketing Practices
- Labeling Rules
• Comparative Advertising
• FTC Litigation
• Additional Resources
Background
The Federal Trade Commission (FTC) works to
ensure that the nation’s markets are efficient and
free of practices which might harm consumers. To
ensure the smooth operation of our free market sys-
tem, the FTC enforces federal CONSUMER PROTECTION
laws that prevent FRAUD, deception, and unfair busi-
ness practices. The Federal Trade Commission Act al-
lows the FTC to act in the interest of all consumers
to prevent deceptive and unfair acts or practices. In
interpreting the Act, the Commission has deter-
mined that, with respect to advertising, a representa-
tion, omission, or practice is deceptive if it is likely
to mislead consumers and affect consumers’ behav-
ior or decisions about the product or service. In addi-
tion, an act or practice is unfair if the injury it causes,
or is likely to cause, is substantial, not outweighed by
other benefits, and not reasonably avoidable.
The FTC Act’s prohibition on unfair or deceptive
acts or practices broadly covers advertising claims,
marketing and promotional activities, and sales prac-
tices in general. The Act is not limited to any particu-
lar medium. Accordingly, the Commission’s role in
protecting consumers from unfair or deceptive acts
or practices encompasses advertising, marketing,
and sales online, as well as the same activities in
print, television, telephone and radio. For certain in-
dustries or subject areas, the Commission issues
rules and guides. Rules prohibit specific acts or prac-
tices that the Commission has found to be unfair or
deceptive. Guides help businesses in their efforts to
comply with the law by providing examples or direc-
tion on how to avoid unfair or deceptive acts or prac-
tices. Many rules and guides address claims about
products or services or advertising in general and is
not limited to any particular medium used to dissem-
inate those claims or advertising. Therefore, the
plain language of many rules and guides applies to
claims made on the Internet. Solicitations made in
print, on the telephone, radio, TV, or online naturally
fall within the Rule’s scope.
Bureau of Consumer Protection
The FTC’s Bureau of Consumer Protection pro-
tects consumers against unfair, deceptive, or
FRAUDULENT practices. The Bureau enforces a variety
of consumer protection laws enacted by Congress, as
well as trade regulation rules issued by the Commis-
sion. Its actions include individual company and in-
dustry-wide investigations, administrative and feder-
al court LITIGATION, rule-making proceedings, and
consumer and business education. In addition, the
Bureau contributes to the Commission’s on-going ef-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 197
forts to inform Congress and other government enti-
ties of the impact that proposed actions could have
on consumers. The Bureau of Consumer Protection
is divided into six divisions and programs, each with
its own areas of expertise. One of the divisions is the
Division of Advertising Practices.
Within the Bureau of Consumer Protection is the
Division of Advertising Practices and the Division of
Enforcement. These entities are the nation’s enforc-
ers of federal truth-in-advertising laws. The FTC Act
prohibits unfair or deceptive advertising in any medi-
um. That is, advertising must tell the truth and not
mislead consumers. A claim can be misleading if rele-
vant information is left out or if the claim implies
something that is not true. In addition, claims must
be substantiated especially when they concern
health, safety, or performance. The type of EVIDENCE
may depend on the product, the claims, and what ex-
perts believe necessary. Sellers are responsible for
claims they make about their products and services.
Third parties such as advertising agencies or website
designers and catalog marketers also may be liable
for making or disseminating deceptive representa-
tions if they participate in the preparation or distri-
bution of the advertising or know about the decep-
tive claims.
The Division of Advertising Practices focuses its
enforcement activities on claims for foods, drugs, di-
etary supplements, and other products promising
health benefits; health fraud on the Internet; weight-
loss advertising and marketing directed to children;
performance claims for computers, ISPs and other
high-tech products and services; tobacco and alcohol
advertising; protecting children’s privacy online;
claims about product performance made in national
or regional newspapers and magazines; in radio and
TV commercials, including infomercials; through di-
rect mail to consumers; or on the Internet.
Advertising Agency Obligations
Advertising agencies (and more recently, website
designers) are responsible for reviewing the informa-
tion used to SUBSTANTIATE ad claims. These agencies
may not simply rely on an advertiser’s assurance that
the claims are substantiated. In determining whether
an ad agency should be held liable, the FTC looks at
the extent of the agency’s participation in the prepa-
ration of the challenged ad and whether the agency
knew or should have known that the ad included
false or deceptive claims.
Publisher Obligations
Like advertising agencies, catalog and magazine
publishers can be held responsible for material dis-
tributed. Publications may be required to provide
documentation to back up assertions made in the ad-
vertisement. Repeating what the manufacturer
claims about the product is not necessarily sufficient.
The Division of Enforcement conducts a wide variety
of law enforcement activities to protect consumers,
including deceptive marketing practices. This divi-
sion monitors compliance with Commission cease
and desist orders and federal court injunctive orders,
investigates violations of consumer protection laws,
and enforces a number of trade laws, rules, and
guides.
Franchises and Businesses
The Franchise and Business Opportunity Rule re-
quires franchise and business opportunity sellers to
give consumers a detailed disclosure document at
least 10 days before the consumer pays any money
or legally commits to a purchase. The document
must include:
• The names, addresses, and telephone num-
bers of other purchasers
• A fully-audited FINANCIAL STATEMENT of the
seller
• The background and experience of the busi-
ness’s key executives
• The cost of starting and maintaining the
business
• The responsibilities of the seller and pur-
chaser once the purchase is made
In addition, companies that make earnings represen-
tations must give consumers the written basis for
their claims, including the number and percentage
of owners who have done at least as well as claimed.
Multi-level marketing (MLM), sometimes known
as network or matrix marketing, is a way of selling
goods and services through distributors. These plans
typically promise that people who sign up as distrib-
utors will get commissions two ways: On their own
sales and on the sales their recruits have made.
Pyramid schemes are a form of multi-level market-
ing which involves paying commissions to distribu-
tors only for recruiting new distributors. Pyramid
schemes are illegal in most states because the plans
inevitably collapse when no new distributors can be
recruited. When a plan collapses, most people ex-
CONSUMER ISSUES—ADVERTISING
198 GALE ENCYCLOPEDIA OF EVERYDAY LAW
cept those at the top of the pyramid lose money.
Lawful MLMs should pay commissions for the retail
sales of goods or services, not for recruiting new dis-
tributors. MLMs that involve the sale of business op-
portunities or franchises, as defined by the Franchise
Rule, must comply with the Rule’s requirements
about disclosing the number and percentage of exist-
ing franchisees who have achieved the claimed re-
sults, as well as cautionary language.
Telemarketing Sales
The FTC’s Telemarketing Sales Rule requires cer-
tain disclosures and prohibits misrepresentations.
The Rule covers most types of telemarketing calls to
consumers, including calls to pitch goods, services,
sweepstakes, and prize promotion and investment
opportunities. It also applies to calls consumers
make in response to postcards or other materials re-
ceived in the mail. Calling times are restricted to the
hours between 8 a.m. and 9 p.m. Telemarketers must
disclose that it is a sales call, and for which company.
It is illegal for telemarketers to misrepresent any in-
formation, including facts about goods or services,
earnings potential, profitability, risk or liquidity of an
investment, or the nature of a prize in a prize-
promotion scheme. Telemarketers must disclose the
total cost of the products or services offered and all
restrictions on getting or using them, or that a sale
is final or non-refundable. Although most types of
telemarketing calls are covered by the Rule, the Rule
does not cover calls placed by consumers in re-
sponse to general media advertising (except calls re-
sponding to ads for investment opportunities, credit
repair services, recovery room services, or advance-
fee loans). It also does not cover calls placed by con-
sumers in response to direct mail advertising that
discloses all the material information required by the
Rule (except calls responding to ads for investment
opportunities, prize promotions, credit repair ser-
vices, recovery room services, or advance-fee loans).
The Mail or Telephone Order Merchandise Rule re-
quires companies to ship purchases when promised
(or within 30 days if no time is specified) or to give
consumers the option to cancel their orders for a re-
fund.
Environmental Marketing Practices
Guidelines for using environmental marketing
claims have been established by the Federal Trade
Commission. The guides themselves are not enforce-
able regulations, nor do they have the force and ef-
fect of law. These guides specifically address the ap-
plication of Section 5 of the Federal Trade
Commission Act that makes deceptive acts and prac-
tices in or affecting commerce unlawful to environ-
mental advertising and marketing practices. Guides
for the Use of Environmental Marketing Claims pro-
vide the basis for voluntary compliance with such
laws by members of industry and are available from
the EPA and the FTC. The guides apply to advertis-
ing, labeling, and other forms of marketing to con-
sumers and do not preempt state or local laws or reg-
ulations. Generally, environmental claims must
specify application to the product, the package, or a
component of either. Environmental claims should
not overstate the environmental attributes or bene-
fit. Every express and material implied claim con-
veyed to consumers about an objective quality
should be substantiated and other broad environ-
mental claims should be avoided or qualified.
A product which purports to offer an environmen-
tal benefit must be backed with factual information.
Green Guides govern claims that consumer products
are environmentally safe, recycled, recyclable,
ozone-friendly, or biodegradable. These guides
apply to environmental claims included in labeling,
advertising, promotional materials, and all other
forms of marketing. The guides apply to any claim
about the environmental attributes of a product,
package, or service in connection with the sale, offer-
ing for sale, or marketing of such product, package,
or service for personal, family, or household use, or
for commercial, institutional, or industrial use.
According to the guidelines, a product or package
should not be marketed as recyclable unless it can
be collected, separated, or otherwise recovered from
the solid waste stream for reuse or in the manufac-
ture or assembly of another package or product
through an established recycling program. Products
or packages that are made of both recyclable and
non-recyclable components must have any recycl-
able claim adequately qualified to avoid consumer
deception about which portions or components of
the product or package are recyclable. Claims of re-
cyclability should be qualified to the extent necessary
to avoid consumer deception about any limited avail-
ability of recycling programs and collection sites. If
an incidental component significantly limits the abili-
ty to recycle a product or package, a claim of recycla-
bility would be deceptive. A product or package that
is made from recyclable material, but, because of its
shape, size, or some other attribute, is not accepted
in recycling programs for such material, should not
be marketed as recyclable.
Likewise, claims that a product or package is de-
gradable, biodegradable, or photodegradable should
CONSUMER ISSUES—ADVERTISING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 199
be substantiated by competent and reliable scientific
evidence that the entire product or package will
completely break down and return to nature, i.e., de-
compose into elements found in nature within a rea-
sonably short time after customary disposal. Claims
of degradability, biodegradability, or photodegrada-
bility should be qualified to the extent necessary to
avoid consumer deception about the product or
package’s ability to degrade in the environment
where it is customarily disposed and the rate and ex-
tent of degradation.
A recycled content claim may be made only for
materials that have been recovered or otherwise di-
verted from the solid waste stream, either during the
manufacturing process (pre-consumer) or after con-
sumer use (post-consumer). To the extent the
source of recycled content includes pre-consumer
material, the manufacturer or advertiser must have
substantiation for concluding that the pre-consumer
material would otherwise have entered the solid
waste stream. In asserting a recycled content claim,
distinctions may be made between pre-consumer
and post-consumer materials. Where such distinc-
tions are asserted, any express or implied claim
about the specific pre-consumer or post-consumer
content of a product or package must be substantiat-
ed. For products or packages that are only partially
made of recycled material, a recycled claim should be
adequately qualified to avoid consumer deception
about the amount, by weight, of recycled content in
the finished product or package. Additionally, for
products that contain used, reconditioned, or re-
manufactured components, a recycled claim should
be adequately qualified to avoid consumer deception
about the nature of such components. No such quali-
fication would be necessary in cases where it would
be clear to consumers from the context that a prod-
uct’s recycled content consists of used, recondi-
tioned, or remanufactured components.
Labeling Rules
The Textile, Wool, Fur, and Care Labeling Rules
require proper origin and fiber content labeling of
textile, wool and fur products, and care label instruc-
tions attached to clothing and fabrics.
For a product to bear the label ‘‘Made in USA,’’ the
product must be ‘‘all or virtually all’’ made in the
United States. The term ‘‘United States,’’ as referred
to in the Enforcement Policy Statement, includes the
50 states, the District of Columbia, and the U.S. terri-
tories and possessions. ‘‘All or virtually all’’ means
that all significant parts and processing that go into
the product must be of U.S. origin. That is, the prod-
uct should contain no, or negligible, foreign content.
The product’s final assembly or processing must take
place in the United States. The Commission then
considers other factors, including how much of the
product’s total manufacturing costs can be assigned
to U.S. parts and processing and how far removed
any foreign content is from the finished product. In
some instances, only a small portion of the total man-
ufacturing costs is attributable to foreign processing,
but that processing represents a significant amount
of the product’s overall processing. Claims that a par-
ticular manufacturing or other process was per-
formed in the United States or that a particular part
was manufactured in the United States must be
truthful, substantiated, and clearly refer to the specif-
ic process or part, not to the general manufacture of
the product, to avoid implying more U.S. content
than exists.
A product that includes foreign components may
be called ‘‘Assembled in USA’’ without qualification
when its principal assembly takes place in the United
States and the assembly is substantial. For the assem-
bly claim to be valid, the product’s last substantial
transformation should have occurred in the United
States.
Comparative Advertising
It is completely legal for a company to compare
its product or service to another company’s in an ad
provided the comparison is truthful and accurate.
However, it is illegal to mislead through an implied
comparison. A statement in an ad that a product is
more reliable than another because it does some-
thing that the other product may also do, can
manipulatively imply a falsehood.
FTC Litigation
Typically, FTC investigations are non-public to
protect both the investigation and the companies in-
volved. If the FTC believes that a person or company
has violated the law, the agency may attempt to ob-
tain voluntary compliance by entering into a consent
order with the company. A company that signs a con-
sent order need not admit that it violated the law, but
it must agree to stop the disputed practices outlined
in an accompanying complaint. If a consent agree-
ment cannot be reached, the FTC may issue an ad-
ministrative complaint or seek injunctive relief in the
federal courts. The FTC’s administrative complaints
CONSUMER ISSUES—ADVERTISING
200 GALE ENCYCLOPEDIA OF EVERYDAY LAW
initiate a formal proceeding that is much like a feder-
al court trial but before an administrative law judge;
evidence is submitted, TESTIMONY is heard, and wit-
nesses are examined and cross-examined. If a law vi-
olation is found, a CEASE AND DESIST ORDER may be is-
sued. Initial decisions by administrative law judges
may be appealed to the full Commission. Final deci-
sions issued by the Commission may be appealed to
the U.S. Court of Appeals and, ultimately, to the U.S.
Supreme Court.
In some circumstances, the FTC can go directly to
court to obtain an injunction, civil penalties, or con-
sumer REDRESS. The injunction preserves the mar-
ket’s competitive status quo. The FTC seeks federal
court injunctions in consumer protection matters
typically in cases of ongoing consumer fraud.
Additional Resources
Advertising: Principles And Practice. Wells, William, Pren-
tice Hall, 1999.
Copywriting for the Electronic Media: A Practical Guide.
Meeske, Milan, Wadsworth Publishing Company, 1999.
Trust Us, We’re Experts: How Industry Manipulates Sci-
ence and Gambles with Your Future. Rampton, Shel-
don and John Stauber, Putnam, 2000.
Organizations
The Council of Better Business Bureaus
4200 Wilson Blvd., Suite 800
Arlington, VA 22203-1838 USA
Phone: (703) 276-0100
Fax: (703) 525-8277
URL: http://www.bbb.org
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580 USA
Phone: (877) FTC-HELP
URL: http://www.ftc.gov
CONSUMER ISSUES—ADVERTISING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 201
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CONSUMER ISSUES
BANKRUPTCY
Sections within this essay:
• Background
• History
• Types of Bankruptcies
• Jurisdiction and Procedure
• Exemptions from the Bankruptcy Estate
• Additional Resources
Background
BANKRUPTCY is a procedure, authorized under fed-
eral law, that relieves an individual or corporation of
debts. With bankruptcy, debtors rarely escape com-
pletely from liability for their debts; instead, they par-
tially or completely repay creditors under an arrange-
ment that is court approved and authorized and in
exchange, any remaining debt is forgiven.
Once considered shameful, bankruptcy still is a
method of last resort for relieving financial obliga-
tions, but in recent decades bankruptcy in the United
States has become more common and more accept-
able. Individuals can seek the protection of the bank-
ruptcy courts for personal debts such as credit cards,
home mortgages, and medical bills, among others.
CORPORATIONS, farms, and even local governments
also can find themselves lacking enough financial re-
sources to pay their debts and can turn to the bank-
ruptcy law for help.
Bankruptcy exists to allow debtors to have a
‘‘fresh start,’’ so that they can settle their debts and
return to being productive members of society. The
goal is to prevent individual debtors from becoming
destitute and to prevent CORPORATE debtors and
other entities from becoming non-existent. At the
same time, it is the goal of bankruptcy to repay credi-
tors, at least partially. This is done by having the
bankruptcy court LIQUIDATE, or sell, the assets of the
DEBTOR or restructure the debtor’s finances so that
creditors are paid at least part of what is owed. The
bankruptcy court protects the debtor from further
debt-collecting actions by the CREDITOR so long as
the debtor complies with the court’s LIQUIDATION or
restructuring plan. Bankruptcy thereby allows the
debtor to emerge from the debt and move forward.
This is why bankruptcy is sometimes referred to as
‘‘bankruptcy protection’’ or ‘‘bankruptcy relief.’’ A
significant deterrent to bankruptcy is the damaged
credit rating that results. An individual who files for
bankruptcy may have a difficult time obtaining credit
for up to seven years or more.
Although federal law generally governs bankrupt-
cies in the United States, states still govern issues and
disputes over financial obligations such as rental
leases, utility bills, and other contracts involving fi-
nances. Federal law concerning these issues over-
rides state law once a debtor files for bankruptcy pro-
tection. This is warranted by the Constitution and
ensures economic stability and uniformity among
the states.
History
The evolution of bankruptcy laws in the United
States began in England in the sixteenth century. At
that time, debtors who would not, or could not, pay
their debts unhappily found themselves in debtors
GALE ENCYCLOPEDIA OF EVERYDAY LAW 203
prison. By the eighteenth century, public sentiment
was shifting with the realization that imprisoning
debtors was not only cruel, it also prevented credi-
tors from ever getting paid. New laws developed that
allowed debts to be reduced or forgiven in exchange
for the debtor’s efforts to repay them.
Before the signing of the Declaration of Indepen-
dence, colonies in the United States followed the
earlier, punitive English laws that imprisoned debt-
ors. States developed their own laws regarding debt-
ors after 1776, but these laws lacked uniformity. The
U.S. Constitution in 1789 charged Congress with en-
acting laws concerning bankruptcy and the Bank-
ruptcy Act of 1800 became the country’s first uniform
bankruptcy law.
But three years after its enactment, Congress re-
pealed the 1800 law over public sentiment that disfa-
vored its emphasis on creditor rights. Congress
struggled during the next century to strike the deli-
cate balance between protecting debtors and repay-
ing creditors. In 1841, Congress for the first time per-
mitted debtors to choose whether to obtain
bankruptcy relief rather than being forced to do so.
Other bankruptcy laws came and went, but the Bank-
ruptcy Act of 1898 and its many amendments lasted
for eighty years and became the model for current
bankruptcy laws in the United States. The 1898 act
established special bankruptcy courts and bankrupt-
cy trustees, charged with the duty of overseeing
bankruptcy liquidations and financial restructuring.
The Bankruptcy Reform Act of 1978 replaced the
1898 act and, along with amendments passed in
1984, 1986, and 1994, this act is known as the bank-
ruptcy code.
Types of Bankruptcies
There are generally two types of bankruptcy relief.
Liquidation, governed by chapter seven of the bank-
ruptcy code and commonly referred to as chapter
seven bankruptcy, involves converting the debtor’s
assets into cash and using the cash to pay the credi-
tors. The bankruptcy code defines how bankruptcy
courts and trustees are to prioritize creditors. Some
creditors receive only partial satisfaction, or in some
cases no satisfaction, of the debt. Once the liquida-
tion and distribution of assets to the creditors is com-
plete, in the case of an individual debtor, the court
will forgive any remaining debt. In the case of a cor-
poration, the corporation is rendered defunct upon
liquidation and distribution. There is no need to for-
give remaining debts of a corporation since the cor-
poration is no longer a legal entity for creditors to
pursue.
The second type of bankruptcy relief is called re-
habilitation or reorganization. This type of bankrupt-
cy usually gives creditors a better chance of being re-
paid, although the duration of repayment may be
extended. In a reorganization bankruptcy, the debtor
may keep assets but must strictly abide by a reorgani-
zation plan that the bankruptcy court authorizes.
The reorganization plan defines when and how
much each creditor will be repaid, but allows the
debtor to continue to function as normally as possi-
ble. While the reorganization plan is in place the
court prevents creditors from pursuing additional
payments from the debtor. Over time and with dili-
gence, the debtor repays the creditors according to
the reorganization plan. Once the plan is completed,
remaining debts are discharged, or forgiven. If the
debtor does not comply with the reorganization
plan, the court may order that the debtor’s assets be
liquidated to pay the debts.
The most common forms of reorganization bank-
ruptcies are chapter eleven bankruptcy, which nor-
mally applies to individuals and corporations with
large and complex debts, and chapter thirteen bank-
ruptcy, which normally applies to individual consum-
ers. The bankruptcy code has a special chapter for
family farmers, chapter twelve, but family farmers
may opt to file under chapters eleven or thirteen in-
stead. Municipalities seeking bankruptcy protection
do so under chapter nine, which mandates reorgani-
zation.
Jurisdiction and Procedure
Federal STATUTE requires that federal district
courts maintain JURISDICTION over bankruptcy mat-
ters. District court judges do not preside over bank-
ruptcy cases, however. Instead, units within the dis-
trict courts manage bankruptcy cases. Federal
APPELLATE COURT judges appoint bankruptcy judges
to these units, and these judges, with their special-
ized knowledge of the bankruptcy laws and rules,
preside over bankruptcy cases. Thus, the federal dis-
trict courts technically have jurisdiction over bank-
ruptcy filings but in practice refer the matters to the
bankruptcy judges.
Most bankruptcy cases require that the bankrupt-
cy court appoint a TRUSTEE. The bankruptcy trustee’s
job is to impartially administer the bankruptcy estate,
which includes the assets of the debtor. Once a debt-
CONSUMER ISSUES—BANKRUPTCY
204 GALE ENCYCLOPEDIA OF EVERYDAY LAW
or files for bankruptcy protection, the debtor’s as-
sets—savings, houses, cars, jewelry, stocks, and
BONDS are examples of assets—become the bank-
ruptcy estate, and the bankruptcy estate becomes a
distinct legal entity separate from the debtor. The
trustee represents the bankruptcy estate and at the
direction of the bankruptcy judge may sell assets, or
otherwise oversees if, when, and how the assets will
be distributed to pay the debts.
In 1986, Congress permanently established a cen-
tral office to oversee the work of bankruptcy trustees
throughout the country. The office of the U.S. trust-
ee has trustees, appointed by the U.S. attorney gen-
eral, in each region of the United States. These ap-
pointed U.S. trustees, in turn, appoint and supervise
additional trustees, ensuring that trustees do their
jobs competently and honestly. U.S. trustees also
have the responsibility to monitor and report FRAUD
by debtors and abuse by creditors.
One important aspect of the bankruptcy laws is
the ‘‘automatic stay.’’ As soon as a debtor files the
proper legal documents requesting bankruptcy pro-
tection, the automatic stay takes effect. This means
that all efforts by creditors to collect from the debtor
are, by law, frozen, and a creditor who ignores the
automatic stay faces severe penalties. The automatic
stay gives the debtor, the trustee, and the court time
to determine the proper course of action in getting
the debts repaid. A party who has a claim against the
bankruptcy estate and shows good cause for not
being included in the requirements of the automatic
stay may ask the bankruptcy judge for ‘‘relief from
the automatic stay.’’
When the debtor complies with the bankruptcy
liquidation or reorganization plan and the plan is
completed, the bankruptcy judge may discharge any
remaining debt and terminate the bankruptcy case.
This action also terminates the automatic stay and
ends the bankruptcy court’s involvement with the
debtor. Typically, the debtor is left without any debts
since the bankruptcy plan has repaid them or the
bankruptcy court has discharged them. Also typical-
ly, the debtor is left with a poor credit rating and has
difficulty borrowing money, obtaining credit cards,
and financing things like homes, cars, and business
ventures.
Exemptions from the Bankruptcy Estate
In keeping with the goal of bankruptcy laws to re-
habilitate rather than punish the debtor, the individ-
ual debtor is permitted to keep some property that
otherwise would be included in the bankruptcy es-
tate and liquidated. These are called exemptions. Ex-
emptions ensure that the debtor is able to survive
the bankruptcy process without becoming destitute
and having to rely on additional government assis-
tance once the process is complete. Property that is
commonly deemed exempt from the bankruptcy es-
tate usually includes a home, a personal car, and per-
sonal items such as clothing.
The federal bankruptcy statute lists allowable ex-
emptions, and these are followed in some states. But
the federal law also permits states to legislate their
own list of bankruptcy exemptions. This results in
widely varying types and amounts of exemptions that
depend on the debtor’s state of residence.
State Bankruptcy Exemptions
ALABAMA: Residents may not elect federal exemp-
tions. State exemptions include up to $5,000 in
HOMESTEAD equity and up to $3,000 in PERSONAL
PROPERTY. Personal items such as family books and
photos are exempt.
ARIZONA: Residents may not elect federal exemp-
tions. Residents may exempt up to $100,000 in
homestead property and up to $4,000 in household
furnishings and appliances, food and provisions for
use of individual or family for six months, life insur-
ance proceeds, retirement fund, tools or equipment
used in a trade or profession.
CALIFORNIA: Residents can elect federal exemptions
or California exemptions. California homestead ex-
emptions include up to $50,000 in home equity for
individuals, up to $75,000 in home equity for heads
of households, and up to $100,000 for seniors or dis-
abled individuals. Ordinarily and reasonably neces-
sary household furnishings and clothing used by the
debtor and spouse are completely exempt. Other ex-
emptions include jewelry, heirlooms, and works of
art up to $5,000, tools of trade up to $5,000 per
spouse, cemetery plots.
FLORIDA: Residents may not elect federal exemp-
tions. Homestead is completely exempt. Personal
property worth up to $1,000 is exempt. Personal ve-
hicle up to $1,000 is exempt. Professionally pre-
scribed health aids are exempt.
IDAHO: Residents may not elect federal exemptions.
Homestead equity of up to $50,000 is exempt. Per-
sonal property valued up to $500 per item or an ag-
CONSUMER ISSUES—BANKRUPTCY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 205
gregate of $4,000 for all items is exempt; jewelry of
aggregate value up to $250 is exempt; personal vehi-
cle up to $1,500 is exempt; professional books and
tools of the trade up to aggregate value of $1,000 is
exempt.
KENTUCKY: Residents may not elect federal exemp-
tions. Real or personal property valued up to $5,000
used by the debtor as a residence is exempt. Personal
property valued up to $3,000; equipment and live-
stock valued up to $3,000 and personal vehicle val-
ued up to $2,500 are exempt.
MICHIGAN: Homestead exemption of up to 40 acres
of land and dwelling house not exceeding $3,500 in
value are exempt. Family pictures and clothing are
exempt. Household goods not exceeding $1,000 are
exempt. Seat or pew used by debtor in public house
of worship is exempt. INDIVIDUAL RETIREMENT
ACCOUNT is exempt.
NEVADA: Residents may not elect federal exemp-
tions. Homestead equity up to $125,000 is exempt.
Private libraries up to $1,500 in value and personal
belongings up to $3,000 in value are exempt. Farm
trucks, stock, and equipment not to exceed $4,500
are exempt; tools of the profession not to exceed
$4,500 are exempt. Qualified retirement plans not
exceeding $500,000 in present-day value are exempt.
NEW YORK: Homestead equity of up to $10,000 is ex-
empt. Personal belongings such as family bible, pic-
tures, school books, one sewing machine, pets and
pet food, all clothing and household furniture, one
television set, one refrigerator, one radio, one wed-
ding ring, one watch up to $35 in value are exempt.
OKLAHOMA: Homestead is exempt. Exempt person-
al property may include all household furniture;
cemetery plots; family books, portraits, and pictures;
clothing valued up to $4,000; five milk cows and their
calves up to six months old; 100 chickens; two
horses and two bridles and two saddles; one gun;
one vehicle valued up to $3,000; ten hogs; twenty
sheep; and one year’s supply of provisions for stock.
RHODE ISLAND: There is no exemption for home-
stead. Exempt personal property includes clothing
up to $500; furniture up to $1,000; bibles, school
books, and family books valued up to $300; cemetery
plot.
UTAH: Residents may not elect federal exemptions.
Homestead equity up to $10,000 is exempt. Personal
property such as burial plots; necessary health aids;
clothing not including jewelry and furs; one washing
machine; one dryer; one microwave oven; one refrig-
erator; one freezer; one stove; one sewing machine;
beds and bedding are exempt. Personal vehicle up to
$2,500 is exempt. Household furnishings up to
$1,000 in value are exempt. Heirlooms up to $500 are
exempt. Animals, books, and musical instruments up
to $500 are exempt. Tools of trade up to $3,500 are
exempt.
WASHINGTON: Resident may elect state exemp-
tions, federal exemptions, or both. Homestead equi-
ty up to $30,000 is exempt. Personal property that is
exempt includes clothing; jewelry, and furs valued
up to $1,000; private libraries valued up to $1,500 per
individual; household furnishings up to $2,700; two
cars; $100 in cash; and tools of the trade not to ex-
ceed $5,000 in value.
FEDERAL EXEMPTIONS: Residence of debtor up to
$16,150 in value is exempt. Personal vehicle up to
$2,575 in value is exempt. Household furnishings,
books, clothing, pets, and other personal items not
to exceed $425 per item or $8,625 in aggregate value
are exempt. Jewelry not to exceed $1,075 in value is
exempt. Tools of the trade valued up to $1,625 are
exempt. Benefits such as social security, DISABILITY,
unemployment, ALIMONY, and certain pensions are
exempt.
Additional Resources
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Bankruptcy Institute
44 Canal Center Plaza, Suite 404
Alexandria, VA 22314 USA
Phone: ((703)) 739-0800
URL: www.abiworld.org
CONSUMER ISSUES—BANKRUPTCY
206 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CONSUMER ISSUES
CONTRACTS
Sections within this essay:
• Background
• Elements of a Contract
- Offer
- Acceptance
- Consideration
- Mutuality of Obligation
- Competency and Capacity
- Writing Requirements
• Types of Contracts
- Contracts under Seal
- Express and Implied Contracts
- Bilateral and Unilateral Contracts
• Breach of Contract: Definition
• Breach of Contract: Defenses
• Breach of Contract: Remedies
• Additional Resources
Background
A contract is an agreement between two parties
that creates an obligation to do or refrain from doing
a particular thing. The purpose of a contract is to es-
tablish the terms of the agreement by which the par-
ties have fixed their rights and duties. Courts must
enforce valid contracts, unless one party has legal
grounds to bar enforcement.
Consumers and commercial entities both depend
on the enforceability of contracts when conducting
business relations. When consumers or commercial
entities enter a contract to buy goods or services at
a particular price, in a particular amount, or of a par-
ticular quality, they expect the seller to deliver goods
and services that conform to the contract. Manufac-
turers, wholesalers, and retailers similarly expect that
their goods and services will be bought in accor-
dance with the terms of the contract.
A legal action for breach of contract arises when
at least one party’s performance does not live up to
the terms of the contract and causes the other party
to suffer economic damage or other types of measur-
able injury. The injury may include any loss suffered
by the plaintiff in having to buy replacement goods
or services at a higher price or of a lower quality from
someone else in the market. It may also include the
costs and expenses incurred by the plaintiff in having
to locate replacement goods or services in the first
place.
Contract disputes may be governed by the COMMON
LAW, STATUTORY law, or both. Each state has devel-
oped its own common law of contracts, which con-
sists of a body of JURISPRUDENCE developed over time
by trial and APPELLATE courts on a case-by-case basis.
For contracts involving commercial transactions, all
fifty states have enacted, at least partially, a body of
statutory law called the UNIFORM COMMERCIAL CODE
(UCC), which governs a variety of commercial rela-
tions involving consumers and merchants, among
others.
State legislatures have also enacted a host of other
statutes governing contracts that affect the PUBLIC
INTEREST. For example, most states have passed legis-
lation governing the terms of insurance contracts to
guarantee that sufficient financial resources will be
available for residents who are injured by accident.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 207
Congress has passed a number of laws governing
contracts as well, ranging from laws that regulate the
terms of COLLECTIVE BARGAINING agreements between
labor and management to laws that regulate FALSE
ADVERTISING and promote fair trade.
Elements of a Contract
The requisite elements that must be established
to demonstrate the formation of a legally binding
contract are (1) offer; (2) acceptance; (3) consider-
ation; (4) mutuality of obligation; (5) competency
and capacity; and, in certain circumstances, (6) a
written instrument.
Offer
An offer is a promise to act or refrain from acting,
which is made in exchange for a return promise to
do the same. Some offers anticipate not another
promise being returned in exchange but the perfor-
mance of an act or forbearance from taking action.
For example, a painter’s offer to paint someone’s
house for $100 is probably conditioned on the home-
owner’s promise to pay upon completion, while a
homeowner’s offer to pay someone $100 to have his
or her house painted is probably conditioned upon
the painter’s successfully performing the job. In ei-
ther case, an offeree’s power of acceptance is created
when the offeror conveys a present intent to enter
a contract in certain and definite terms that are com-
municated to the offeree.
Courts distinguish preliminary negotiations from
formal legal offers in that parties to preliminary nego-
tiations lack a present intent to form a contract. Ac-
cordingly, no contract is formed when parties to pre-
liminary negotiations respond to each other’s
invitations, requests, and intimations. Advertise-
ments and catalogues, for example, are treated as
forms of preliminary negotiations. Otherwise, the
seller of the goods or services would be liable for
countless contracts with consumers who view the ad
or read the catalogue, even though the quantity of
the merchandise may be limited.
However, sellers must be careful to avoid couch-
ing their advertisements in clear and definite terms
that create the power of acceptance in consumers.
For example, sellers have been found liable to con-
sumers for advertising a definite quantity of goods
for sale at a certain price on a ‘‘first come, first serve’’
basis, after consumers showed up and offered to pay
the advertised price before the goods sold out. In
such situations, the seller may not withdraw the offer
on grounds that market factors no longer justify sell-
ing the goods at the advertised price. Instead, courts
will compel them to sell the goods as advertised.
The rejection of an offer terminates the offeree’s
power of acceptance and ends the offeror’s liability
for the offer. Rejection might come in the form of an
express refusal to accept the offer or by implication
when the offeree makes a COUNTEROFFER that is ma-
terially different from the offeror’s original proposal.
Most jurisdictions also recognize an offeror’s right to
withdraw or revoke an offer as a legitimate means of
terminating the offer.
Offers that are not rejected, withdrawn, or re-
voked generally continue until the expiration of the
time period specified by the offer, or, if there is no
time limit specified, until a reasonable time has
elapsed. A reasonable time is determined according
to what a reasonable person would consider suffi-
cient time to accept the offer under the circum-
stances. Regardless of how much time has elapsed
following an offer, the death or insanity of either
party before acceptance is communicated normally
terminates an offer, as does the destruction of the
subject matter of the proposed contract and any in-
tervening conditions that would make acceptance il-
legal.
Sometimes offerees are concerned that an offer
may be terminated before they have had a full oppor-
tunity to evaluate it. In this case, they may purchase
an ‘‘option’’ to keep the offer open for a designated
time. During that time the offer is deemed irrevoca-
ble, though some jurisdictions allow the offeror to
revoke the offer by paying the offeree an agreed
upon sum to do so.
Acceptance
Acceptance of an offer is the expression of ASSENT
to its terms. Acceptance must generally be made in
the manner specified by the offer. If no manner of
acceptance is specified by the offer, then acceptance
may be made in a manner that is reasonable under
the circumstances. An acceptance is only valid, how-
ever, if the offeree knows of the offer, the offeree
manifests an intention to accept, and the acceptance
is expressed as an unequivocal and unconditional
agreement to the terms of the offer.
Many offers specify the method of acceptance,
whether it be oral or written, by phone or in person,
by handshake or by ceremony. Other offers leave
open the method of acceptance, allowing the offeree
to accept in a reasonable manner. Most consumer
CONSUMER ISSUES—CONTRACTS
208 GALE ENCYCLOPEDIA OF EVERYDAY LAW
transactions fall into this category, as when a shop-
per ‘‘accepts’’ a merchant’s offer by taking posses-
sion of a particular good and paying for it at the cash
register. But what constitutes a ‘‘reasonable’’ accep-
tance will vary according to the contract.
Some offers may only be accepted by the perfor-
mance or non-performance of a particular act. Once
formed, these types of agreements are called unilat-
eral contracts, and they are discussed more fully later
in this essay. Other offers may only be accepted by
a return promise of performance from the offeree.
Once formed, these agreements are called bilateral
contracts, and they are also discussed more fully later
in this essay.
Problems can arise when it is not clear whether an
offer anticipates the method of acceptance to come
in the form of performance or a return promise. Sec-
tion 32 of the Restatement of Contracts (Second) at-
tempts to address this issue by providing that ‘‘in
case of doubt an offer is interpreted as inviting the
offeree to accept either by promising to perform
what the offer requests or by rendering perfor-
mance, as the offeree chooses.’’ A growing number
of jurisdictions are adopting this approach.
Jurisdictions are split as to the time when an air-
mailed acceptance becomes effective. Under the ma-
jority approach, known as ‘‘the mailbox rule,’’ an ac-
ceptance is effective upon dispatch in a properly ad-
dressed envelope with prepaid postage, even if the
acceptance is lost or destroyed in transit. Under the
minority approach, acceptance is effective only upon
actual receipt by the offeror, no matter what precau-
tions the offeree took to ensure that the acceptance
was properly mailed.
In certain cases acceptance can be implied from
a party’s conduct. Suppose a consumer orders a per-
sonal computer (PC) with exact specifications for its
central processing unit (CPU), hard drive, and mem-
ory. Upon receipt, the consumer determines that the
PC does not match the specs. If the consumer none-
theless pays the full amount on the invoice accompa-
nying the PC without protest, the consumer has ef-
fectively communicated a legally binding acceptance
of the non-conforming good.
Acceptance cannot generally be inferred from a
party’s silence or inaction. An exception to this rule
occurs when two parties have a prior course of deal-
ings in which the offeree has led the offeror to be-
lieve that the offeree will accept all goods shipped by
the offeror unless the offeree sends notice to the
contrary. In such instances, the offeree’s silence or
inaction constitutes a legally binding acceptance
upon which the offeror can rely.
Consideration
Each party to a contract must provide something
of value that induces the other to enter the agree-
ment. The law calls this exchange of values ‘‘consid-
eration.’’ The value exchanged need not consist of
currency. Instead, it may consist of a promise to per-
form an act that one is not legally required to do or
a promise to refrain from an act that one is legally en-
titled to do. For example, if a rich uncle promises to
give his nephew a new sports car if he refrains from
smoking cigarettes and drinking alcohol for five
years, the law deems both the uncle’s promise and
the nephew’s forbearance lawful consideration.
A court’s analysis as to whether a contract is sup-
ported by sufficient consideration typically focuses
more on the promise or performance of the offeree
than the promise or performance of the offeror.
Courts often say that no consideration will be found
unless the offeree suffers a ‘‘legal detriment’’ in mak-
ing the return promise or in performing the act re-
quested by the offeror. As a general rule, legal detri-
ment is found if the offeree relinquishes a LEGAL
RIGHT in fulfilling his or her contractual duties. Thus,
promises to give love and affection or make a gift or
donation are not sufficient consideration to support
a contract because no one is under a legal duty to
give or refrain from giving these things to others.
Similarly a promise to perform an act that has already
been completed in the past fails to offer consider-
ation to support a new agreement.
Mutuality of Obligation
Closely related to the concept of consideration is
the mutuality of obligation doctrine. Under this doc-
trine, both parties must be bound to perform their
obligations or the law will treat the agreement as if
neither party is bound to perform. When an offeree
and offeror exchange promises to perform, one party
may not be given the absolute and unlimited right to
cancel the contract. Such arrangements attempt to
allow one party to perform at her leisure, while os-
tensibly not relieving the other party of his obliga-
tions to perform. Most courts declare these one-
sided arrangements null for lack of mutuality of obli-
gation. Some courts simply invalidate such contracts
for lack of consideration, reasoning that a party who
is given absolute power to cancel a contract suffers
no legal detriment.
CONSUMER ISSUES—CONTRACTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 209
To avoid having a contract subsequently invalidat-
ed by a court, the parties must be careful to limit
their discretion to cancel the contract or otherwise
not perform. As long as the right to avoid perfor-
mance is dependent on some condition or event out-
side the control of the party seeking to cancel the
contract, courts will find that mutuality of obligation
exists. Thus, a farmer might lawfully be given the
right to cancel a crop-watering service if the right to
cancel were conditioned upon the amount of rain
that fell during a given season, something outside
the farmer’s control. But a court would find mutuali-
ty lacking if the farmer were given the right to termi-
nate the service short of full performance simply by
giving notice of his or her intention to cancel.
Competency and Capacity
A natural person who enters a contract possesses
complete legal capacity to be held liable for the du-
ties he or she agrees to undertake, unless the person
is a minor, mentally incapacitated, or intoxicated. A
minor is defined as a person under the age of 18 or
21, depending on the JURISDICTION. A contract made
by a minor is voidable at the minor’s discretion,
meaning that the contract is valid and enforceable
until the minor takes some affirmative act to disavow
the contract. Minors who choose to disavow their
contracts entered may not be held liable for breach.
The law assumes that minors are too immature,
na¤ve, or inexperienced to negotiate on equal terms
with adults, and thus courts protect them from being
held accountable for unwisely entering contracts of
any kind.
When a party does not understand the nature and
consequences of an agreement that he or she has en-
tered, the law treats that party as lacking mental ca-
pacity to form a binding contract. However, a party
will not be relieved from any contractual duties until
a court has formally adjudicated the issue after taking
EVIDENCE concerning the party’s mental capacity, un-
less there is an existing court order declaring the
party to be incompetent or insane. Like agreements
with minors, agreements with mentally incapacitated
persons are voidable at that person’s discretion.
However, a GUARDIAN or personal representative may
ratify an agreement for an incapacitated person and
thereby convert the agreement into a legally binding
contract.
Contracts entered into by persons under the influ-
ence of alcohol and drugs are also voidable at that
person’s discretion, but only if the other party knew
or had reason to know the degree of impairment. As
a practical matter, courts rarely show sympathy for
defendants who try to avoid contractual duties on
grounds that they were intoxicated. However, if the
evidence shows that the sober party was trying to
take advantage of the intoxicated party, courts will
typically intervene to void the contract. Persons who
are intoxicated from prescription medication are
treated the same as persons who are mentally incom-
petent or insane and are generally relieved from their
contractual responsibilities more readily than are
persons intoxicated from non-prescription drugs or
alcohol.
Writing Requirement
Not every contract need be in writing to be valid
and binding on both parties. But nearly every state
legislature has enacted a body of law that identifies
certain types of contracts that must be in writing to
be enforceable. In legal parlance this body of law is
called the STATUTE of frauds.
Named after a seventeenth-century English stat-
ute, the statute of frauds is designed to prevent a
plaintiff from bringing an action for breach of con-
tract based on a nonexistent agreement for which
the only proof of the agreement is the plaintiff’s per-
jured TESTIMONY. The statute of frauds attempts to
accomplish this objective by prohibiting the enforce-
ment of particular contracts, unless the terms of the
contract are expressly reflected by written note,
memorandum, or agreement that is signed by the
parties or their personal representatives.
As originally conceived, the statute of frauds ap-
plied to four types of contracts: (1) promises to pay
a debt owed by another person; (2) promises to
marry; (3) promises to perform an act that cannot
possibly be performed within a year from the date of
the promise; and (4) agreements involving real es-
tate. However, most states have since expanded the
class of contracts that must be in writing to be en-
forceable. For example, in many jurisdictions long
term leases, insurance contracts, agreements for the
sale of SECURITIES, and contracts for the sale of goods
over $500 will all be deemed unenforceable unless
the terms of the parties’ agreement are memorial-
ized in writing.
Types of Contracts
Contracts under Seal
Early English common law required all contracts
to be stamped with a seal before a party could en-
force them in court. The seal memorialized the par-
CONSUMER ISSUES—CONTRACTS
210 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ties’ intention to honor the terms of the contract. No
consideration was required, since the seal symbol-
ized a solemn promise undertaken by all parties to
the contract.
With the onset of the industrial era during the
eighteenth century, however, sealed contracts were
increasingly seen as an impractical and inefficient im-
pediment to fast paced commercial relations. Sealed
contracts were gradually replaced by other types of
agreements, including express and implied con-
tracts. In fact, nearly all jurisdictions have eliminated
the legal effect of sealed contracts. Thus, contracts
under seal will not generally be enforced unless they
are supported by independent consideration.
Express and Implied Contracts
Express contracts consist of agreements in which
the terms are stated by the parties. The terms may
be stated orally or in writing. But the contract as a
whole must reflect the intention of the parties. As a
general rule, if an express contract between the par-
ties is established, a contract embracing the identical
subject cannot be implied in fact, as the law will not
normally imply a substitute promise or contract for
an express contract of the parties.
Contracts implied in fact are inferred from the
facts and circumstances of the case or the conduct
of the parties. However, such contracts are not for-
mally or explicitly stated in words. The law makes no
distinction between contracts created by words and
those created by conduct. Thus, a contract implied
in fact is just as binding as an express contract that
arises from the parties’ declared intentions, with the
only difference being that for contracts implied in
fact courts will infer the parties’ intentions from their
business relations and course of dealings.
Whereas courts apply the same legal principles to
express contracts and contracts implied in fact, a dif-
ferent body of principles is applied to contracts im-
plied in law. Also known as quasi-contracts, contracts
implied in law are agreements imposed by courts de-
spite the absence of at least one element essential to
the formation of a binding agreement. The law
creates these types of fictitious agreements to pre-
vent one party from being unjustly enriched at the
expense of another.
For example, suppose that a husband and wife ask
a third party to hold a sum of money in trust for their
children. But instead of holding the money in trust,
the third party absconds with it. The law will not
allow the third party to keep the money simply be-
cause all the requisite elements of a formal contract
have not been proven by the husband and wife. Al-
though the law is generally wary of imposing con-
tracts on parties who did not agree to their terms,
courts will find that a contract implied in law exists
when (1) the DEFENDANT has been enriched at the ex-
pense of the plaintiff; (2) the enrichment was unjust;
(3) the plaintiff’s own conduct has not been inequita-
ble; and (4) it is otherwise reasonable for the court
to do so in light of the relationship between the par-
ties and the circumstances of the case.
Bilateral and Unilateral Contracts
A BILATERAL CONTRACT arises from the exchange of
mutual, reciprocal promises between two persons
that requires the performance or non-performance
of some act by both parties. The promise made by
one party constitutes sufficient consideration for the
promise made by the other party. A UNILATERAL
CONTRACT involves a promise made by only one party
in exchange for the performance or non-
performance of an act by the other party. Stated dif-
ferently, acceptance of an offer to form a unilateral
contract cannot be achieved by making a return
promise, but only by performance or non-
performance of some particular act. Accordingly, ac-
ceptance of an offer to enter a unilateral contract can
be revoked until performance is complete or until
the date has passed for non-performance.
It should be remembered, however, that courts
are asked to interpret contracts long after they have
been formed. As a result, courts will often take into
account how the parties actually acted on the terms
of a particular contract. Not surprisingly, courts will
avoid interpreting a contract as unilateral or bilateral
when such an interpretation would leave one party
in the lurch or the opposite interpretation would
yield a more commercially reasonable result. This is
not to say that courts do not enforce one-sided
agreements, but only that the evidence of the par-
ties’ understanding must be clear before a court will
do so.
Breach of Contract: Definition
An unjustifiable failure to perform all or some part
of a contractual duty is a breach of contract. A breach
may occur when one party fails to perform in the
manner specified by the contract or by the time spec-
ified in the contract. A breach may also occur if one
party only partially performs his or her duties or fully
performs them in a defective manner.
CONSUMER ISSUES—CONTRACTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 211
Courts distinguish total breaches from partial
breaches. A total breach of contract is the failure to
perform a material part of the contract, while a par-
tial breach results from merely a slight deviation. In
determining whether a breach is total or partial,
courts typically examine the following factors: (1) the
extent to which the non-breaching party obtained
the substantial benefit of the contract despite the
breach; (2) the extent to which the non-breaching
party can be adequately compensated for the breach
with money damages; (3) the extent to which the
breaching party has already performed or made
preparations for performance; (4) the extent to
which the breaching party mitigated the hardship on
both parties by not fully performing; (5) the willful,
negligent, or innocent behavior of the breaching
party; and (6) the likelihood that the breaching party
will perform the remainder of the contract if allowed.
Breach of Contract: Defenses
A number of defenses are available to defendants
sued for breach of contract, many of which are allud-
ed to earlier in this essay. For example, a defendant
might assert that no breach was committed because
no valid contract was never actually formed due to
the lack of an offer, an acceptance, consideration,
mutuality of obligation, or a writing. Alternatively, a
defendant might assert that he or she lacked capacity
to enter the contract, arguing that the contract
should be declared void on the grounds that the de-
fendant was incompetent, insane, or intoxicated at
the time it was entered.
The law also affords defendants several other de-
fenses in breach of contract actions. They include (1)
unconscionabilty; (2) mistake; (3) FRAUD; (4) undue
influence; and (5) DURESS. First, a defendant might
assert that a contract should not be enforced be-
cause its terms are unconscionable. Unconscionable
contracts are those that violate PUBLIC POLICY by
being so unjust as to offend the court’s sense of fair-
ness. Sometimes called ‘‘contracts against public pol-
icy,’’ unconscionable contracts usually result from a
gross disparity in the parties’ bargaining power, as
can happen when one party is a savvy business per-
son and the other party is elderly, illiterate, or not flu-
ent in English. But a mere disparity in bargaining
power will not suffice to overturn an otherwise valid
contract, unless a court finds that the resulting con-
tract is one that no mentally competent person
would enter and that no fair and honest person
would accept.
Second, a defendant might assert that a contract
should not be enforced because of a mistake made
by one or more parties. Ordinarily, to constitute a
valid defense in an action for breach of contract the
mistake must be a mutual one made by all of the par-
ties to the contract. However, when the mistake is
obvious from the face of the contract, knowledge of
the mistake will be imputed to each party. Thus, a
contract that by its terms designates a horse as the
subject matter will be enforced unless both parties
agree that a different subject matter was intended.
On the other hand, if the same contract designates
a pig as the subject matter in 99 paragraphs of the
agreement, but mentions a horse in only one para-
graph, a court will not force the defendant to sell his
horse if it is obvious that the one paragraph contains
an error.
Third, a defendant might assert that a contract
should not be enforced because it is the product of
fraud. Fraud occurs when one party intentionally de-
ceives another party as to the nature and conse-
quences of a contract, and the deceived party is in-
jured as a result. In most cases, fraud requires an
affirmative act, such as willful misrepresentation or
concealment of a material fact. In a few cases where
a special relationship exists between the parties,
such as between attorney and client, simple non-
disclosure of a material fact may amount to fraud. Re-
gardless of the underlying relationship between the
parties, however, a court will not void a contract due
to fraud unless the defendant demonstrates that he
or she was induced to enter the contract by the
FRAUDULENT conduct and not merely that the plaintiff
made a false statement at some point in time.
Fourth, a defendant might assert that a contract
should not be enforced because it is the product of
undue influence. Undue influence occurs when one
party exercises such control over a second party as
to overcome the independent judgment and free will
of the second party. In reviewing claims of undue in-
fluence, courts look to see whether the plaintiff
preyed on and exploited a known psychological or
physical weakness when securing the defendant’s as-
sent to a contract. However, evidence that the plain-
tiff merely used aggressive and unsavory tactics in se-
curing the defendant’s assent will not suffice to
overturn a contract on grounds of undue influence,
unless those tactics had the effect of substituting the
plaintiff’s will and judgment for the defendant’s.
Fifth, a defendant might assert that a contract is
not enforceable because it is the product of duress.
CONSUMER ISSUES—CONTRACTS
212 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Duress consists of any wrongful act that coerces an-
other person to enter a contract that he or she would
not have entered voluntarily. BLACKMAIL, physical vi-
olence, a show of force, and threats to institute LEGAL
PROCEEDINGS in an abusive manner may all constitute
sufficient duress to void a contract. However, a de-
fendant claiming duress must demonstrate that suffi-
cient harm was threatened or inflicted to justify find-
ing that the defendant had no reasonable choice but
to enter the contract on the terms dictated by the
plaintiff.
Breach of Contract: Remedies
The five basic remedies for breach of contract are
money damages, RESTITUTION, rescission, reforma-
tion, and specific performance. Money damages is a
sum of money that is awarded as compensation for
financial losses caused by a breach of contract. Par-
ties injured by a breach are entitled to the benefit of
the bargain they entered, or the NET gain that would
have accrued but for the breach. The type of breach
governs the extent of damages that may be recov-
ered.
If the breach is a total breach, a plaintiff can recov-
er damages in an amount equal to the sum or value
the plaintiff would have received had the contract
been fully performed by the defendant, including
lost profits. If the breach is only partial, the plaintiff
may normally seek damages in an amount equal to
the cost of hiring someone else to complete the per-
formance contemplated by the contract. However, if
the cost of completion is prohibitive and the portion
of the unperformed contract is small, many courts
will only award damages in an amount equal to the
difference between the diminished value of the con-
tract as performed and the full value contemplated
by the contract.
For example, if the plaintiff agreed to pay the de-
fendant $200,000 to build a house, but the defendant
only completed 90 percent of the work contemplat-
ed by the contract, a court might be inclined to
award $20,000 in damages if it would cost the plain-
tiff twice as much to hire someone else to finish the
last 10 percent. The same principles apply to dam-
ages sought for contracts that are fully performed,
but in a defective manner. If the defect is significant,
the plaintiff can recover the cost of repair. But if the
defect is minor, the plaintiff may be limited to recov-
ering the difference between the value of the good
or service actually received and the value of the good
or service contemplated by the contract.
Restitution is a remedy designed to restore the in-
jured party to the position occupied prior to the for-
mation of the contract. Parties seeking restitution
may not request to be compensated for lost profits
or other earnings caused by a breach. Instead, resti-
tution aims at returning to the plaintiff any money or
property given to the defendant under the contract.
Plaintiffs typically seek restitution when contracts
they have entered are voided by courts due to a de-
fendant’s INCOMPETENCY or incapacity. The law allows
incompetent and incapacitated persons to disavow
their contractual duties but generally only if the
plaintiff is not made worse off by their disavowal.
Parties that are induced to enter contracts by mis-
take, fraud, undue influence, or duress may seek to
have the contract set aside or have the terms of con-
tract rewritten to do justice in the case. Rescission is
the name for the remedy that terminates the contrac-
tual duties of both parties, while reformation is the
name for the remedy that allows courts to change
the substance of a contract to correct inequities that
were suffered. Like contracts implied in law, howev-
er, courts are reluctant to rewrite contracts to reflect
the parties’ actual agreement, especially when the
contract as written contains a mistake that could
have been rectified through pre-contract investiga-
tion. Thus, one court would not reform a contract
that stipulated an incorrect amount of acreage being
purchased, since the buyer could have ascertained
the correct amount by obtaining a land survey before
entering the contract. Little Stillwater Holding Corp.
v. Cold Brook Sand and Gravel Corp., 151 Misc.2d
457, 573 N.Y.S.2d 382 (N.Y.Co.Ct. 1991).
Specific performance is an equitable remedy that
compels one party to perform, as nearly as practica-
ble, his or her duties specified by the contract. Spe-
cific performance is available only when money dam-
ages are inadequate to compensate the plaintiff for
the breach. This ruling often happens when the sub-
ject matter of a contract is unique.
Every parcel of land by definition is unique, if for
no other reason than its location. However, rare arti-
cles that are not necessarily one of a kind are still
treated by the law as unique if it would be impossible
for a judge or jury to accurately calculate the appro-
priate amount of damages to award the plaintiff in
lieu of awarding him or her the unique article con-
templated by the contract. Heirlooms and antiques
are examples of such rare items for which specific
performance is usually available as a remedy. Howev-
er, specific performance may never be invoked to
CONSUMER ISSUES—CONTRACTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 213
compel the performance of a personal service, since
the Thirteenth Amendment to the U.S. Constitution
prohibits slavery.
Additional Resources
American Jurisprudence. West Group, 1998.
http://www.findlaw.com/01topics/07contracts/
index.html. FindLaw for Legal Professionals: Contracts
Law.
Restatement (Second) of Contracts. American Law Insti-
tute, 2001.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
Consumer Contact Services, Inc.
6125 Black Oak Blvd.
Fort Wayne, IN 46835-2654 USA
Phone: (219) 486-2453
Primary Contact: Karen L. Gonzagowski, President
National Organization of Bar Counsel
515 Fifth Street, NW
Washington, DC 64196 USA
Phone: (202) 638-1501
Fax: (202) 662-1777
URL: http://w ww.nobc.org
Primary Contact: Robert J. Saltzman, President
Office of Consumer Protection, Federal
Trade Commission
600 Pennsylvania Avenue NW
Washington, DC 20580 USA
Phone: (877) 382-4357
Fax: (202) 326-3529
URL: http://w ww.ftc.gov/ftc/consumer.htm
Primary Contact: Robert Pitofsky, Chairman
CONSUMER ISSUES—CONTRACTS
214 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CONSUMER ISSUES
CREDIT/TRUTH-IN LENDING
Sections within this essay:
• Background
• Types of Credit
- Same as Cash Credit
- Installment Credit
- Revolving Credit
• Interest
• Truth in Lending Act
• FTC Litigation
• Equal Credit Opportunity Act
• Fair Credit Reporting Act
• Credit Reports
- Credit Report Errors
- Accurate Negative Information
• Fair Debt Collection Practices Act
• Additional Resources
Background
Credit is money granted by a CREDITOR or lender
to a DEBTOR or borrower, who defers payment of the
debt. In exchange for the credit, the lender gets back
the money, usually paid on a monthly basis, plus fi-
nance charges or interest.
Types of Credit
Same as Cash Credit
Same as cash or noninstallment credit is the sim-
plest form of credit. Same as cash credit is usually
very short term, such as thirty days. Same as cash
credit enables consumers to take possession of prop-
erty today and pay for it within a set amount of time.
Many department stores offer noninstallment credit;
however, many same-as-cash plans can convert to
high interest credit if the customer does not pay in
full on the due date.
Installment Credit
With INSTALLMENT closed-end credit, a particular
amount of money is lent to the consumer, usually
the amount of the purchase price of the goods. The
full amount of the principal and interest must be paid
within a pre-determined time period.
Revolving Credit
Revolving open-end credit is found with most
credit cards. Under agreement with the lender, an
amount of credit is extended to the consumer. An
outside limit is established, depending upon the con-
sumer’s credit history and ability to handle the debt
repayment. The financial institution gives the con-
sumer a credit card with a credit limit, and the con-
sumer can choose how much of the available credit
to use at any given time. Usually the consumer
makes monthly payments. Revolving credit requires
active management by the consumer. The consumer
can decide to pay off the entire outstanding debt
when the statement is present, pay off more than the
required minimum payment, or simply make the
minimum required payment.
Interest
Interest is the compensation to the creditor for
the use of the creditor’s money. Over time, due to
inflation, the value of money decreases. Interest on
GALE ENCYCLOPEDIA OF EVERYDAY LAW 215
credit can be either simple or compound. Simple in-
terest is interest charged only on the principal
amount borrowed. Simple interest does not add the
interest charge back to the outstanding loan during
the length of the loan. Thus, simple interest charges
are less than COMPOUND INTEREST charges. Com-
pound interest is interest charged not only on the
principal, but on the interest accrued during the
length of the loan. Compound interest is more ex-
pensive to the consumer because interest is charged
on top of interest.
The amount of interest that can be charged is lim-
ited and regulated by state laws. The percentage in-
terest rate allowed varies from state to state, depend-
ing on the type of credit being extended. A fixed
interest rate does not change throughout the dura-
tion of the extension of credit. Under a variable rate
loan, the FINANCE CHARGE is determined by an index,
such as the ‘‘prime rate’’ published nationally each
quarter for short-term loans charged by banks. This
allows the lender to charge an interest rate that re-
flects current market conditions. Regardless of
whether the interest rate charged is fixed or variable,
the rate may not exceed the permissible rate set by
state USURY laws.
Truth In Lending Act
The Truth in Lending Act is a federal law which
sets minimum standards for the information which
a creditor must provide in an installment credit con-
tract. The amount being financed, the amount of the
required minimum monthly payment, the total num-
ber of monthly payments, and the ANNUAL PERCENTAGE
RATE (APR) must all be provided to the consumer
prior to entering into a credit contract. In addition,
the Truth in Lending Act regulates the advertising of
credit. The Federal Trade Commission (FTC) works
to ensure that the nation’s markets are efficient and
free of practices which might harm consumers. To
ensure the smooth operation of our free market sys-
tem, the FTC enforces federal CONSUMER PROTECTION
laws that prevent FRAUD, deception, and unfair busi-
ness practices. The Federal Trade Commission Act al-
lows the FTC to act in the interest of all consumers
to prevent deceptive and unfair acts or practices. In
interpreting the Act, the Commission has deter-
mined that, with respect to advertising, a representa-
tion, omission or practice is deceptive if it is likely to
mislead consumers and affect consumers’ behavior
or decisions about the product or service. In addi-
tion, an act or practice is unfair if the injury it causes,
or is likely to cause, is substantial, not outweighed by
other benefits, and not reasonably avoidable.
The FTC’s Bureau of Consumer Protection pro-
tects consumers against unfair, deceptive, or
FRAUDULENT practices. The Bureau enforces a variety
of consumer protection laws enacted by Congress, as
well as trade regulation rules issued by the Commis-
sion. Its actions include individual company and in-
dustry-wide investigations, administrative and feder-
al court LITIGATION, rule-making proceedings, and
consumer and business education. In addition, the
Bureau contributes to the Commission’s on-going ef-
forts to inform Congress and other government enti-
ties of the impact that proposed actions could have
on consumers. The Bureau of Consumer Protection
is divided into six divisions and programs, each with
its own areas of expertise. One of the divisions is the
Division of Advertising Practices.
Within the Bureau of Consumer Protection is the
Division of Advertising Practices and the Division of
Enforcement. These entities are the nation’s enforc-
ers of federal truth-in-advertising laws. The FTC Act
prohibits unfair or deceptive advertising in any medi-
um. That is, advertising must tell the truth and not
mislead consumers. A claim can be misleading if rele-
vant information is left out or if the claim implies
something that is not true. In addition, claims must
be substantiated especially when they concern
health, safety, or performance. The type of EVIDENCE
may depend on the product, the claims, and what ex-
perts believe necessary. Sellers are responsible for
claims they make about their products and services.
Third parties such as advertising agencies or website
designers and catalog marketers also may be liable
for making or disseminating deceptive representa-
tions if they participate in the preparation or distri-
bution of the advertising, or know about the decep-
tive claims.
FTC Litigation
Typically, FTC investigations are non-public to
protect both the investigation and the companies in-
volved. If the FTC believes that a person or company
has violated the law, the agency may attempt to ob-
tain voluntary compliance by entering into a consent
order with the company. A company that signs a con-
sent order need not admit that it violated the law, but
it must agree to stop the disputed practices outlined
in an accompanying complaint. If a consent agree-
ment cannot be reached, the FTC may issue an ad-
ministrative complaint or seek injunctive relief in the
CONSUMER ISSUES—CREDIT/TRUTH-IN LENDING
216 GALE ENCYCLOPEDIA OF EVERYDAY LAW
federal courts. The FTC’s administrative complaints
initiate a formal proceeding that is much like a feder-
al court trial but before an administrative law judge:
Evidence is submitted, TESTIMONY is heard, and wit-
nesses are examined and cross-examined. If a law vi-
olation is found, a CEASE AND DESIST ORDER may be is-
sued. Initial decisions by administrative law judges
may be appealed to the full Commission. Final deci-
sions issued by the Commission may be appealed to
the U.S. Court of Appeals and, ultimately, to the U.S.
Supreme Court.
In some circumstances, the FTC can go directly to
court to obtain an injunction, civil penalties, or con-
sumer REDRESS. The injunction preserves the mar-
ket’s competitive status quo. The FTC seeks federal
court injunctions in consumer protection matters
typically in cases of ongoing consumer fraud.
Equal Credit Opportunity Act
The Equal Credit Opportunity Act (ECOA) en-
sures that all consumers are given an equal chance
to obtain credit. Factors such as income, expenses,
debt, and credit history are always valid consider-
ations for creditworthiness; however, there are cer-
tain areas about which it unlawful for a potential
creditor to inquire. These include sex, race, national
origin, or religion. A creditor may ask for to voluntari-
ly disclosure of this information if the loan is a real
estate loan. This information helps federal agencies
enforce anti-discrimination laws. When permitted to
ask marital status, a creditor may only use the terms:
married, unmarried, or separated. A creditor may ask
for such information in COMMUNITY PROPERTY states.
A creditor in any state may ask for this information
if the account is joint and spouses apply together. A
potential creditor many not inquire about plans a
consumer may have for having or raising children,
except that a creditor many inquire about court-
ordered ALIMONY, CHILD SUPPORT, or separate mainte-
nance payments a potential debtor may to obligated
to make.
As creditors decide whether to grant credit, they
may not base their decision on sex, marital status,
race, national origin, religion, or age (unless the ap-
plicant is a minor and without capacity to contract)
or if age is used to determine the meaning of other
factors important to creditworthiness. A potential
creditor must consider public assistance income,
part-time employment or PENSION, ANNUITY, or retire-
ment income as well as any reported alimony, child
support, or separate maintenance payments.
Creditors are required to notify applicants within
30 days whether the application has been approved
or denied. Creditors who reject potential consumers
must provide a notice explaining either the specific
reasons for rejection or the procedure for discover-
ing the reason within 60 days.
Fair Credit Reporting Act
The FAIR CREDIT REPORTING ACT (FCRA) is a feder-
al law which regulates the activities of credit report-
ing bureaus. The FCRA is designed to protect the pri-
vacy of credit report information and to guarantee
that information supplied by consumer reporting
agencies (CRAs) is as accurate as possible. Private
credit reporting bureaus, such as TRW Information
Services, Equifax Credit Information Services, and
Trans Union Credit Information Company, maintain
records of financial payment histories, public record
data, along with personal identification information.
The FCRA punishes unauthorized persons who ob-
tain credit reports, as well as employees of credit re-
porting bureaus who furnish credit reports to unau-
thorized persons. The FTC also places
responsibilities on those who supply the reporting
bureaus with the initial information.
Credit Reports
A credit report is a type of consumer report which
contains information about where a consumer lives
and how that consumers pays bills. It also may show
whether an individual has been sued, arrested, or has
filed for BANKRUPTCY. Companies called consumer re-
porting agencies (CRAs) or credit bureaus compile
and sell consumer credit reports to businesses. Busi-
nesses use this information to evaluate applications
for credit, insurance, employment, and other pur-
poses allowed by the Fair Credit Reporting Act
(FCRA).
Any consumer denied credit insurance or employ-
ment because of information supplied by a CRA, is
entitled to receive the CRA’s name, address, and tele-
phone number. If the consumer contacts the agency
for a copy of the report within 60 days of receiving
a denial notice, the report is free. In addition, con-
sumers are entitled to one free copy a year if unem-
ployed or if identity theft or fraud is suspected. Oth-
erwise, a CRA can charge a small fee for issuing a
report. The major CRAs are Equifax, TransUnion, and
Experian.
CONSUMER ISSUES—CREDIT/TRUTH-IN LENDING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 217
Credit Report Errors
Under the FCRA, both the CRA and the organiza-
tion that provided the information to the CRA, such
as a bank or credit card company, have responsibili-
ties for correcting inaccurate or incomplete informa-
tion in consumer credit reports. If a consumer dis-
putes an item on the credit report in writing, the
CRAs must reinvestigate the items in question within
30 days. After the information provider receives no-
tice of a dispute from the CRA, it must investigate,
review all relevant information provided by the CRA,
and report the results to the CRA. If the information
provider finds the disputed information to be inaccu-
rate, it must notify all nationwide CRAs. Disputed in-
formation that cannot be verified must be deleted
from a consumer credit report. When the reinvesti-
gation is complete, the CRA must give the consumer
written results and a free copy of the report if the dis-
pute results in a change. If an item is changed or re-
moved, the CRA cannot put the disputed informa-
tion back into a consumer file unless the information
provider verifies its accuracy and completeness, and
the CRA gives the consumer a written notice that in-
cludes the name, address, and phone number of the
provider. If the consumer requests, the CRA must
send notices of corrections to anyone who received
a report in the previous six months. Job applicants
can have a corrected copy of their report sent to any-
one who received a copy during the past two years
for employment purposes. If a reinvestigation does
not resolve a dispute, consumers have a right to ask
the CRA to include a statement of the dispute in the
file and in future reports.
Accurate Negative Information
When negative information in a consumer report
is accurate, only the passage of time can assure its re-
moval. Accurate negative information can generally
stay on a consumer report for 7 years. However,
bankruptcy information may be reported for 10
years. Information about a lawsuit or an unpaid judg-
ment can be reported for seven years or until the
STATUTE OF LIMITATIONS runs out, whichever is longer.
Credit Counseling Services can assist consumers.
Some will contact creditors and attempt to consoli-
date debts, and put together a repayment plan. Most
of these businesses are non-profit agencies that
charge small or even no fees to provide credit coun-
seling. Other for-profit organizations sometimes ad-
vise consumers to apply for new employee ID num-
bers, and then use them instead of their Social
Security numbers to apply for more credit. Using an
identification number in order to DEFRAUD creditors,
however, may be considered fraudulent and possibly
criminal.
Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act is a federal
law which regulates the activities of those who regu-
larly collect debts from others. Many states have
adopted similar laws regulating the practices of debt
collectors. Under this law, debt collectors may con-
tact debtors by mail, in person, by telephone, or by
telegram during ‘‘convenient hours’’ (commonly be-
tween 8 AM and 9 PM). Debt collectors are prohibit-
ed from contacting the debtor at work if the collector
knows or has reason to know that the employer for-
bids employees from being contacted by debt collec-
tors at the workplace. Finally, debt collectors may
not contact individuals who are represented by an at-
torney.
Additional provisions specify that debt collectors
may not threaten violence, use obscene or profane
language, repeatedly telephone to annoy or harass,
make collect telephone calls, or use false or mislead-
ing information in an effort to collect the debt. Con-
sumers who believe this law has been violated may
contact the regulating body, which is the Federal
Trade Commission. Consumers also have the option
of filing a lawsuit against the debt collector for viola-
tion of the law.
Additional Resources
Credit after Bankruptcy: A Step-by-Step Action Plan to
Quick and Lasting Recovery after Personal Bankrupt-
cy. Snyder, Stephen, Bellwether, 2000.
How to Fix Your Credit Report Yourself. Lamet, Jerome,
Jerome Limited, 1998.
The Insider’s Guide to Managing Your Credit: How to Es-
tablish, Maintain, Repair, and Protect Your Credit.
McNaughton, Deborah, Berkley Publishing Group,
1999.
Organizations
Council of Better Business Bureaus (CBBB)
4200 Wilson Blvd., Suite 800
Arlington, VA 22203-1838 USA
Phone: (703) 276-0100
Fax: (703) 525-8277
URL: http://www.bbb.org
CONSUMER ISSUES—CREDIT/TRUTH-IN LENDING
218 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Equifax
P.O. Box 740241
Atlanta, GA 30374-0241 USA
Phone: (800) 685-1111
Experian (formerly TRW)
P.O. Box 949
Allen, TX 75013 USA
Phone: (800) 682-7654
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580 USA
Phone: (877) FTC-HELP
URL: http://www.ftc.gov
Trans Union
760 West Sproul Road
Springfield, PA 19064-0390 USA
Phone: (800) 916-8800
CONSUMER ISSUES—CREDIT/TRUTH-IN LENDING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 219
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CONSUMER ISSUES
DECEPTIVE TRADE PRACTICES
Sections Within This Essay:
• Background
• Applicability of Deceptive Trade Practices
Statutes
- Trade or Commerce
- Consumer Transactions
- Goods or Services
• Prohibited Acts and Practices
• Other Practices Deemed Deceptive or Unfair
- Debt Collection
- Breach of Warranties
- Insurance
- Pyramid Schemes and Similar Prac-
tices
• Remedies for Violations of Deceptive Trade
Practices Statutes
• State and Local Provisions Prohibiting De-
ceptive Trade Practices
• Additional Resources
Background
Federal legislation and statutes in every state pro-
hibit employment of unfair or deceptive trade prac-
tices and UNFAIR COMPETITION in business. The Feder-
al Trade Commission regulates federal laws designed
to prohibit a series of specific practices prohibited in
interstate commerce. Several states have established
CONSUMER PROTECTION offices as part of the state at-
torney general offices.
The Federal Trade Commission Act (FTCA), origi-
nally passed in 1914 and amended several times
thereafter, was the original STATUTE in the United
States prohibiting ‘‘unfair or deceptive trade acts or
practices.’’ Development of the federal law was relat-
ed to federal antitrust and trademark INFRINGEMENT
legislation. Prior to the enactment in the 1960s of
state statutes prohibiting deceptive trade practices,
the main focus of state law in this area was ‘‘unfair
competition,’’ which refers to the tort action for
practices employed by businesses to confuse con-
sumers as to the source of a product. The tort action
for a business ‘‘passing off’’ its goods as those of an-
other was based largely on the COMMON LAW tort ac-
tion for trademark infringement.
Because the law governing deceptive trade prac-
tices was undefined and unclear, the National Con-
ference of Commissioners on Uniform State Laws in
1964 drafted the Uniform Deceptive Trade Practices
Act. The NCCUSL revised this uniform law in 1966.
The law was originally ‘‘designed to bring state law
up to date by removing undue restrictions on the
common law action for deceptive trade practices.’’
Only eleven states have adopted this act, but it has
had a significant effect on other states. Most state de-
ceptive or unfair trade practices statutes were origi-
nally enacted between the mid-1960s and mid-1970s.
Applicability of Deceptive Trade Practices
Statutes
Deceptive trade practices statutes do not govern
all situations where one party has deceived another
party. Most states limit the scope of these statutes to
commercial transactions involving a consumer pur-
chasing or leasing goods or services for personal,
household, or family purposes. The terms used in
each statute to set forth the scope of the statute are
GALE ENCYCLOPEDIA OF EVERYDAY LAW 221
often the subject of LITIGATION. The majority of states
requires a liberal interpretation of the terms of the
deceptive trade practices statutes, including those
describing the applicability of the statutes.
Trade or Commerce
Several states limit the applicability of deceptive
trade practices to transactions in trade or commerce.
This requirement usually incorporates a broad range
of profit-oriented transactions. But it generally ex-
cludes trade between non-merchants and similar
transactions.
Consumer Transactions
The appropriate plaintiff under most deceptive
trade practices acts is a consumer, commonly de-
fined as a person who will use a good or service for
personal, family, or household purposes. The deter-
mination of whether a plaintiff is a consumer often
requires use of one of two types of analysis, a subjec-
tive test and an objective test. The subjective analysis
typically considers the intended use of the good or
service at the time of the transaction. Thus, if a buyer
of a good intends at the time of a purchase to use to
good for a personal, family, or household purpose,
the buyer will likely be considered a consumer under
the relevant statute. The objective analysis considers
whether the type of good or service involved in the
transaction is ordinarily used for a personal, family,
or household purpose.
Goods or Services
Goods are defined under the UNIFORM COMMER-
CIAL CODE as those items movable at the time of a
purchase. Many deceptive trade practices statutes
apply this definition to the requirement that goods
are involved in a transaction for a deceptive trade
practices statute to apply. Livestock are also usually
included in the definition of a good. Statutes and
courts usually define services broadly, including in
the definition most activities conducted on behalf of
another. Some states require that consumers seek to
purchase merchandise, which incorporates goods,
services, real property, commodities, and some in-
tangibles.
Prohibited Acts and Practices
Most state deceptive trade practices statutes in-
clude broad restrictions on ‘‘deceptive’’ or ‘‘unfair’’
trade practices. These states often include prohibi-
tions against FRAUDULENT practices and unconsciona-
ble practices. The Federal Trade Commission, when
interpreting the FTCA, does not require that the per-
son committing an act of deception have the intent
to deceive. Moreover, the FTC does not require that
actual deception occur. The FTC merely requires
that a party have the capacity to deceive or commit
an unfair trade practice. If a business or individual
has this capacity or tendency to deceive, the FTC
under the FTCA may order the company to cease
and desist the deceptive or unfair practice. State stat-
utes similarly do not require that a company specifi-
cally intends to deceive, nor must a company always
have knowledge that a statement is false to be liable
for misrepresentations made to a consumer.
A consumer who has been victimized by a poten-
tial deceptive or unfair trade practice should consult
the deceptive trade practice statute in that state, plus
consult CASE LAW applying this statute, to determine
whether he or she has a cause of action. In addition
to the broad prohibition against deception, most
state statutes also include a list of practices that are
defined as deceptive. Under the Uniform Deceptive
Trade Practices Act, if a business or person engages
in the following, the action constitutes a deceptive
trade practice:
• Passes off goods or services as those of an-
other
• Causes likelihood of confusion or of misun-
derstanding as to the source, sponsorship,
approval, or certification of goods or ser-
vices
• Causes likelihood of confusion or of misun-
derstanding as to affiliation, connection, or
association with, or certification by, another
• Uses deceptive representations or designa-
tions of geographic origin in connection
with goods or services
• Represents that goods or services have
sponsorship, approval, characteristics, ingre-
dients, uses, benefits, or qualities that they
do not have or that a person has a sponsor-
ship, approval, status, affiliation, or connec-
tion that he does not have
• Represents that goods are original or new if
they are deteriorated, altered, recondi-
tioned, reclaimed, used, or second-hand
• Represents that goods or services are of par-
ticular standard, quality, or grade, or that
goods are of particular style or model, if they
are of another
• Disparages the goods, services, or business
of another by false or misleading misrepre-
sentation of fact
CONSUMER ISSUES—DECEPTIVE TRADE PRACTICES
222 GALE ENCYCLOPEDIA OF EVERYDAY LAW
• Advertises goods or services with intent not
to sell them as advertised
• Advertises goods or services with intent not
to supply reasonably expected public de-
mand, unless advertisement discloses a limi-
tation of quantity
• Makes false or misleading statements of fact
concerning the reasons for, existence of, or
amounts of price reductions
• Engages in any other conduct which similar-
ly creates the likelihood of confusion or of
misunderstanding
Most states include similar items in their lists of
deceptive trade practices violations, even if those
states have not adopted the uniform act. In addition,
the FTC and many states prohibit other unfair prac-
tices, including the following:
• Unfair provisions in contracts of adhesion
• Coercive or high-pressure tactics in sales
and collection efforts
• Illegal conduct
• Taking advantage of bargaining power of vul-
nerable groups
• Taking advantage of emergency situations
• Unconscionable activities, including outra-
geous and offensive conduct by a business
in the sale of goods or services
Other Practices Deemed Deceptive or
Unfair
Debt Collection
The Federal Fair Debt Collection Practices Act and
state debt collection statutes govern most abuses by
debt collectors in debt collection activities. Decep-
tive trade practices statutes may provide remedies in
situations that are not covered by these debt collec-
tion statutes. For example, most debt collection stat-
utes do not cover some forms of debt collection,
such as foreclosures, repossessions, and evictions,
but a deceptive trade practices statute may apply.
Moreover, deceptive trade practices statutes may
also permit a consumer to bring a cause of action
against a CREDITOR for debt collection practices of an
independent agency hired by the creditor. Several
cases have dealt with issues regarding misrepresenta-
tions made by debt collectors or deceptive agree-
ments proposed by debt collectors.
Breach of Warranties
Consumers have several means of enforcing a
WARRANTY provided in a sales or service contract. If
a business employs deceptive practices with respect
to the advertisement or negotiation of a warranty, a
deceptive trade practices statute may provide a con-
sumer a remedy in addition to a breach of warranty
claim.
Insurance
Most states have enacted legislation regarding de-
ceptive practices of insurance companies, including
those practices related to the sale of policies and the
payment of claims. In some states, employment of a
deceptive practice in insurance is also a deceptive
trade practice. A deceptive trade practices statute
may also provide a remedy in insurance cases where
state insurance laws do not apply.
Pyramid Schemes and Similar Practices
Several states prohibit certain illegal business
schemes through deceptive trace practices statutes.
One such scheme is a ‘‘pyramid scheme,’’ where in-
vestors make money by recruiting others to join and
invest in a company rather than selling a product as
claimed by the company. Other schemes include de-
ceptive employment opportunity claims and mis-
leading or deceptive game or contest promotions.
Some states do not specifically include these
schemes in the statute, but courts in those states may
have applied provisions of the relevant deceptive
trade practices statute in cases involving these
schemes.
Remedies for Violations of Deceptive
Trade Practices Statutes
A consumer who has been the victim of a decep-
tive trade practice has a variety of remedies. State de-
ceptive trade practices statutes have been particular-
ly successful due to the damages provisions included
in the statutes. About half of the states provide mini-
mum STATUTORY damages to a litigant who has prov-
en a deceptive trade practice, even if the litigant has
not proven actual damages. Many states also permit
courts to award treble damages, which means the ac-
tual damages to a party injured by a deceptive trade
practice are tripled. Several states also permit courts
to impose PUNITIVE DAMAGES and/or attorney’s fees
for these practices.
In addition to monetary damages, several other
options may exist for a person injured by a deceptive
trade practice. When the FTC has JURISDICTION over
CONSUMER ISSUES—DECEPTIVE TRADE PRACTICES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 223
a case, it may enjoin a deceptive trade practice of a
company under the FTCA. Statutes in each of the
states also permit government enforcement officials
to seek cease and desist orders to prevent businesses
from engaging in deceptive trade practices. These
remedies may be available in addition to civil reme-
dies sought by private litigants.
State and Local Provisions Prohibiting
Deceptive Trade Practices
Although many state deceptive trade practices
statutes include similar provisions, application of
these statutes often differs from state to state. Con-
sumers who have been victimized by a deceptive
trade practice should be sure to consult their rele-
vant state statutes to determine the appropriate pro-
cedures to follow, the appropriate office to contact,
and special requirements that must be met to bring
a suit in that state. Each state has adopted some ver-
sion of a deceptive trade practices statute. The fol-
lowing are brief summaries of these statutes.
ALABAMA: The state statute prohibits 22 specific
practices, plus any other deceptive or unconsciona-
ble acts or practices. The transaction must be con-
ducted in trade or commerce for the statute to apply.
The attorney general’s office or a district attorney’s
office may enforce the statute for violations by a busi-
ness.
ALASKA: The state statute prohibits 41 specific prac-
tices, plus other unfair methods of competition and
unfair or deceptive acts or practices. The transaction
must be conducted in trade or commerce for the
statute to apply. The attorney general’s office may
enforce the statute for violations by a business.
ARIZONA: The state statute prohibits deception or
an omission of a material fact by one party to a trans-
action with the intent to deceive the other party. The
transaction must involve the sale, offer for sale, or
LEASE of goods, real property, services, or intangibles
for the statute to apply. The attorney general’s office
or a county attorney’s office may enforce the statute
for violations by a business.
ARKANSAS: The state statute prohibits 10 specific
practices, plus any other deceptive or unconsciona-
ble acts or practices. The transaction must involve
the sale or advertisement of goods or services for the
statute to apply.
CALIFORNIA: The state statute prohibits 23 specific
practices, plus any other unfair methods of competi-
tion and unfair or deceptive practices. Parties must
intend for the transaction to result in the sale or lease
of goods or services to a consumer for the statute to
apply.
COLORADO: The state legislature adopted the Uni-
form Deceptive Trade Practices Act which prohibits
43 specific practices. Transactions must be in the
course of a person’s business, vocation, or occupa-
tion, and involve the sale of goods, services, or real
property for the statute to apply. The attorney gener-
al’s office or a district attorney’s office may enforce
the statute for violations by a business.
CONNECTICUT: The state statute prohibits unfair
methods of competition and unfair or deceptive acts
or practices. The transaction must be conducted in
trade or commerce for the statute to apply. The
Commission of Consumer Protection or the attorney
general’s office may enforce the statute for violations
by a business.
DELAWARE: The state legislature adopted the Uni-
form Deceptive Trade Practices Act which prohibits
12 specific practices, plus other conduct that creates
the likelihood of a misunderstanding on the part of
a consumer. The transaction must be conducted in
the course of business, vocation, or occupation for
the statute to apply. The attorney general’s office
may enforce the statute for violations by a business.
DISTRICT OF COLUMBIA: The state statute prohibits
31 specific practices, plus other unfair, deceptive, or
unlawful trade practices. The transaction must in-
volve trade practices involving consumer goods or
services. The Office of Consumer Protection may en-
force the statute for violations by a business.
FLORIDA: The state statute prohibits unfair methods
of competition, unconscionable acts or practices,
and deceptive or unfair acts or practices. A finding of
a violation may be based on rules promulgated by
the Federal Trade Commission. The transaction
must be conducted in trade or commerce for the
statute to apply. The Department of Legal Affairs or
the state attorney’s office may enforce the statute for
violations by a business.
GEORGIA: The state legislature adopted the Uniform
Deceptive Trade Practices Act which prohibits de-
ceptive or unfair acts or practices in a consumer
transaction or an office supply transaction. A number
of specific examples are included in the statute. The
statute applies to consumer transactions in trade or
commerce. Georgia Office of Consumer Affairs may
enforce the statute for violations by a business.
CONSUMER ISSUES—DECEPTIVE TRADE PRACTICES
224 GALE ENCYCLOPEDIA OF EVERYDAY LAW
HAWAII: The state legislature adopted the Uniform
Deceptive Trade Practices Act which prohibits 12
specific practices, plus any other conduct that
creates a misunderstanding on the part of a consum-
er. The transaction must be conducted in the course
of a business, vocation, or occupation for the statute
to apply.
IDAHO: The state statute prohibits 18 specific prac-
tices, plus any misleading consumer practices or un-
conscionable practices. The transaction must be con-
ducted in trade or commerce for the statute to apply.
The attorney general’s office may enforce the statute
for violations by a business.
ILLINOIS: The state legislature adopted the Uniform
Deceptive Trade Practices Act which prohibits 26
specific practices, plus other unfair methods of com-
petition and unfair or deceptive acts or practices.
Proscribed practices include concealment or omis-
sion by a business of any material fact with an intent
to cause reliance by a consumer. The transaction
must be conducted in trade or commerce for the
statute to apply. The attorney general’s office may
enforce the statute for violations by a business.
INDIANA: The state statute prohibits a number of
specific practices, including transactions involving
contracts with unconscionable provisions. The trans-
action must be a consumer transaction as defined by
the statute for the statute to apply. The attorney gen-
eral’s office may enforce the statute for violations by
a business.
IOWA: The state statute prohibits four specific prac-
tices, plus any other unfair or deceptive acts, or con-
cealment or omission of a material fact by a business
with the intent to cause reliance on the part of the
consumer. The transaction must involve the sale,
offer of sale, or advertisement of goods, real proper-
ty, or several intangible items described in the statue
for the statute to apply. The attorney general’s office
may enforce the statute for violations by a business.
KANSAS: The state statute prohibits 11 specific prac-
tices, plus any unconscionable practices as defined
by the statute. The transaction must involve the sale
or lease of property or services intended for person-
al, family, household, business, or agricultural pur-
poses. The attorney general’s office or local prose-
cuting attorney’s office may enforce the statute for
violations by a business.
KENTUCKY: The state statute prohibits unfair or de-
ceptive acts or practices, including unconscionable
practices. The transaction must be conducted in
trade or commerce for the statute to apply. The at-
torney general’s office or county attorney’s office
may enforce the statute for violations by a business.
LOUISIANA: The state statute prohibits unfair meth-
ods of competition and unfair or deceptive acts or
practices. The transaction must be conducted in
trade or commerce for the statute to apply. The Gov-
ernor’s Consumer Protection Division may enforce
the statute for violations by a business.
MAINE: The state legislature adopted the Uniform
Deceptive Trade Practices Act. The state statute pro-
hibits 12 specific practices, plus conduct likely to
create confusion or misunderstanding to a consum-
er, unfair methods of competition, and unfair or de-
ceptive acts or practices. The transaction must be
conducted in trade or commerce for the statute to
apply. The attorney general’s office may enforce the
statute for violations by a business.
MARYLAND: The state statute prohibits unfair or de-
ceptive trade practices, including a number of prac-
tices specified in the statute. The transaction must in-
volve the sale, offer for sale, or lease of consumer
goods, real property, or services. Consumer debt col-
lection and extension of consumer credit are also
within the scope of the statute. The Division of Con-
sumer Protection of the Attorney General’s office
may enforce the statute for violations by a business.
MASSACHUSETTS: The state statute prohibits unfair
methods of competition and unfair or deceptive acts
or practices. The transaction must be conducted in
trade or commerce for the statute to apply. The at-
torney general’s office may enforce the statute for vi-
olations by a business.
MICHIGAN: The state statute prohibits 31 specific
practices, plus any other deceptive, unfair, or uncon-
scionable acts or practices. The transaction must be
conducted in trade or commerce for the statute to
apply. The attorney general’s office or a district attor-
ney’s office may enforce the statute for violations by
a business.
MINNESOTA: The state legislature adopted the Uni-
form Deceptive Trade Practices Act which prohibits
13 specific practices, plus any other deceptive or un-
conscionable acts or practices. The transaction must
be conducted in the course of business, vocation, or
occupation for the statute to apply. The attorney
general’s office may enforce the statute for violations
by a business.
CONSUMER ISSUES—DECEPTIVE TRADE PRACTICES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 225
MISSISSIPPI: The state statute prohibits 22 specific
practices, plus any other deceptive or unconsciona-
ble acts or practices. The transaction must be con-
ducted in trade or commerce for the statute to apply.
The Attorney General’s Office of Consumer Protec-
tion may enforce the statute for violations by a busi-
ness.
MISSOURI: The state statute prohibits deceptive or
unfair acts or concealment or omission of a material
fact from a consumer. The transaction may involve
the sale, offer for sale, or advertisement of any mer-
chandise for the statute to apply. The attorney gener-
al’s office may enforce the statute for violations by a
business.
MONTANA: The state statute prohibits unfair meth-
ods of competition and unfair or deceptive acts or
practices. The transaction must involve the sale, offer
for sale, or advertisement of any real or PERSONAL
PROPERTY, services, intangibles, or anything of value.
The attorney general’s office may enforce the statute
for violations by a business.
NEBRASKA: The state legislature adopted the Uni-
form Deceptive Trade Practices Act which prohibits
14 specific practices, plus unfair methods of compe-
tition, other unfair or deceptive acts or practices, and
all unconscionable acts by a supplier in a consumer
transaction. The transaction must be conducted in
trade or commerce for the statute to apply. The at-
torney general’s office may enforce the statute for vi-
olations by a business.
NEVADA: The state statute prohibits a number of de-
ceptive trade practices set forth in the statute. The
transaction must be conducted in the course of a
business or occupation. The Commissioner of Con-
sumer Affairs, Director of the Department of Com-
merce, attorney general’s office, or a district attor-
ney’s office may enforce the statute for violations by
a business.
NEW HAMPSHIRE: The state statute prohibits 12
specific practices, plus any unfair methods of compe-
tition or any other unfair of deceptive act or practice.
The transaction must be conducted in trade or com-
merce for the statute to apply. The attorney general’s
office may enforce the statute for violations by a busi-
ness.
NEW JERSEY: The state statute prohibits unconscio-
nable commercial practices, deception, FRAUD, or the
knowing concealment or omission of a material fact
with the intent to cause reliance on the part of a con-
sumer. The statute includes numerous specific pro-
hibitions. The transaction may be conducted in con-
junction with the sale or advertisement of any
merchandise or real property for the statute to apply.
The attorney general’s office or the director of a
county or municipal office of consumer affairs may
enforce the statute for violations by a business.
NEW MEXICO: The state legislature adopted the Uni-
form Deceptive Trade Practices Act which prohibits
17 specific deceptive practices, two specific uncon-
scionable practices, and other unfair or deceptive
trade practices. The transaction must be conducted
in trade or commerce for the statute to apply. The
attorney general’s office may enforce the statute for
violations by a business.
NEW YORK: The state statute prohibits deceptive
acts or practices and FALSE ADVERTISING. The transac-
tion must be conducted in business, trade, or com-
merce, or in the furnishing of a service in the state,
for the statute to apply. The attorney general’s office
may enforce the statute for violations by a business.
NORTH CAROLINA: The state statute prohibits un-
fair methods of competition and unfair or deceptive
acts or practices. The transaction must be conducted
in or affect commerce, including all business activi-
ties. The attorney general’s office may enforce the
statute for violations by a business.
NORTH DAKOTA: The state statute prohibits decep-
tive acts or practices, fraud, or misrepresentation
with the intent for consumer to rely on the represen-
tation. The transaction may involve a sale or adver-
tisement of any merchandise for the statute to apply.
The attorney general’s office may enforce the statute
for violations by a business.
OHIO: The state legislature adopted the Uniform
Deceptive Trade Practices Act. The state statute pro-
hibits 11 specific practices, plus any other deceptive
or unconscionable acts or practices. The transaction
must be a consumer transaction for the statute to
apply. The attorney general’s office may enforce the
statute for violations by a business.
OKLAHOMA: The state legislature adopted the Uni-
form Deceptive Trade Practices Act which prohibits
11 specific deceptive trade practices. The transaction
must be conducted in a course of a business, voca-
tion, or occupation for the statute to apply. The at-
torney general’s office or a district attorney’s office
may enforce the statute for violations by a business.
OREGON: The state statute prohibits 20 specific un-
fair or deceptive acts or practices, plus two uncon-
CONSUMER ISSUES—DECEPTIVE TRADE PRACTICES
226 GALE ENCYCLOPEDIA OF EVERYDAY LAW
scionable tactics. The transaction must be conducted
in trade or commerce for the statute to apply. The
attorney general’s office or a district attorney’s office
may enforce the statute for violations by a business.
PENNSYLVANIA: The state statute prohibits 21 prac-
tices, plus other unfair methods of competition, de-
ceptive acts or practices, or any fraudulent or decep-
tive conduct that is likely to create confusion to a
consumer. The transaction must be conducted in
trade or commerce for the statute to apply. The at-
torney general’s office may enforce the statute for vi-
olations by a business.
RHODE ISLAND: The state statute prohibits 19 spe-
cific unfair methods of competition or unfair or de-
ceptive practices. The transaction must be conduct-
ed in trade or commerce for the statute to apply. The
attorney general’s office may enforce the statute for
violations by a business.
SOUTH CAROLINA: The state statute prohibits unfair
methods of competition and unfair or deceptive acts
or practices. The transaction must be conducted in
trade or commerce for the statute to apply. The at-
torney general’s office may enforce the statute for vi-
olations by a business.
SOUTH DAKOTA: The state statute prohibits know-
ing and intentional deceptive practices, plus prac-
tices involving an omission of a material fact in con-
nection with a sale of merchandise to a consumer.
The transaction must be conducted in business for
the statute to apply. The attorney general’s office or
the state’s attorney with attorney general approval
may enforce the statute for violations by a business.
TENNESSEE: The state statute prohibits 30 specific
practices, plus any other deceptive or unfair acts or
practices. The transaction must be conducted in
trade or commerce for the statute to apply. The at-
torney general’s office may enforce the statute for vi-
olations by a business.
TEXAS: The state statute prohibits 25 specific prac-
tices, plus additional actions for breach of warranty,
insurance violations, or unconscionable acts or prac-
tices. The transaction must be conducted in trade or
commerce for the statute to apply. The Consumer
Protection Division of the attorney general’s office or
a district attorney’s office may enforce the statute for
violations by a business.
UTAH: The state statute prohibits 15 specific uncon-
scionable practices by a supplier in a consumer trans-
action, plus other deceptive acts or practices. The
transaction must be a consumer transaction for the
statute to apply. The Division of Consumer Protec-
tion or other state officials or agencies with authority
over suppliers may enforce the statute for violations
by a business.
VERMONT: The state statute prohibits unfair meth-
ods of competition and unfair or deceptive acts or
practices. The transaction must be conducted in
commerce for the statute to apply. The attorney gen-
eral’s office may enforce the statute for violations by
a business.
VIRGINIA: The state statute prohibits 32 specific
practices, plus any other fraudulent acts or practices.
A supplier must conduct a consumer transaction for
the statute to apply. The attorney general’s office
may enforce the statute for violations by a business.
WASHINGTON: The state statute prohibits unfair
methods of competition and unfair or deceptive acts
or practices. The transaction must be conducted in
trade or commerce for the statute to apply. The at-
torney general’s office may enforce the statute for vi-
olations by a business.
WEST VIRGINIA: The state statute prohibits 16 spe-
cific practices, plus other unfair methods of competi-
tion and unfair or deceptive practices. The transac-
tion must be conducted in trade or commerce for
the statute to apply. The attorney general’s office
may enforce the statute for violations by a business.
WISCONSIN: The state statute prohibits 14 specific
practices, plus other untrue, deceptive, or mislead-
ing representations; unfair methods of competition;
and unfair trade practices. The statute applies to vir-
tually any transaction due to the broad scope of the
statutory language. The Department of Agriculture,
Trade, and Consumer Protection may enforce the
statute for violations by a business.
WYOMING: The state statute prohibits several specif-
ic practices, plus other unfair or deceptive acts or
practices. The transaction must be conducted in the
scope of a business and in a consumer transaction for
the statute to apply. The attorney general’s office
may enforce the statute for violations by a business.
Additional Resources
Revised Uniform Deceptive Trade Practices Act. National
Conference of Commissioners on Uniform State Laws,
1966. Available at http://www.law.upenn.edu/bll/ulc/
fnact99/1920_69/rudtpa66.htm.
State Unfair Trade Practices Law: In One Volume. Com-
merce Clearing House, Inc., 2000.
CONSUMER ISSUES—DECEPTIVE TRADE PRACTICES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 227
Unfair and Deceptive Acts and Practices, Fourth Edition.
Sheldon, Jonathan, and Carolyn L. Carter, National Con-
sumer Law Center, 1997.
Unfair Trade Practices Laws: Resource Book. Alliance of
American Insurers, 1986.
U.S. Code, Title 15: Commerce and Trade, Chapter 2: Fed-
eral Trade Commission; Promotion of Export Trade
and Prevention of Unfair Methods of Competition. U.
S. House of Representatives, 1999. Available at http://
uscode.house.gov/title_15.htm
Organizations
American Council on Consumer Interests
(ACCI)
240 Stanley Hall
University of Missouri
Columbia, MO 65211 USA
Phone: (573) 882-3817
Fax: (573) 884-6571
URL: http://www.consumerinterests.org/
Primary Contact: Carrie Paden, Executive Director
Call for Action (CFA)
5272 River Road, Suite 300
Bethesda, MD 20816 USA
Phone: (301) 657-8260
Fax: (301) 657-2914
URL: http://www.callforaction.org
Consumer Action (CA)
717 Market Street, Suite 310
San Francisco, CA 94103 USA
Phone: (415) 777-9635
Fax: (415) 777-5269
URL: http://www.consumer-action.org
Primary Contact: Ken McEldowney, Executive
Director
Council of Better Business Bureaus, Inc.
4200 Wilson Blvd.
Arlington, VA 22203 USA
Phone: (703) 276-0100
Fax: (703) 525-8277
URL: http://www.bbb.org/
National Consumer Law Center (NCLC)
18 Tremont Street
Boston, MA 02108 USA
Phone: (617) 523-8089
Fax: (617) 523-7398
URL: http://www.consumerlaw.org/
Primary Contact: Willard P. Ogburn, Executive
Director
National Consumers League (NCL)
1701 K Street, NW, Suite 1201
Washington, DC 20006 USA
Phone: (202) 835-3323
Fax: (202) 835-0747
URL: http://www.nclnet.org/
National Fraud Information Center (NFIC)
P.O. Box 65868
Washington, DC 20035 USA
Phone: (800) 876-7060
Fax: (202) 835-0767
URL: http://www.fraud.org/
CONSUMER ISSUES—DECEPTIVE TRADE PRACTICES
228 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CONSUMER ISSUES
DEFECTIVE PRODUCTS
Sections within this essay:
• Background
• Theories of Product Liability
- Negligence
- Strict Liability
- Breach of Warranty
• Types of Product Defects
- Design Defects
- Manfacturing Defects
- Marketing Defects
• Used Merchandise
• Foreign Corporations
• Comparative Fault
• Statute of Limitations
• Damages
• Consumer Product Safety Commission
• Additional Resources
Background
Defective product law, commonly known as prod-
ucts liability, refers to the liability of parties along the
chain of manufacture of any product for damage
caused by that product. A defective product is one
that causes some injury or damage to person as a re-
sult of a person because of some defect in the prod-
uct or its labeling or the way the product was used.
Those responsible for the defect can include the
manufacturers of component parts, assembling man-
ufacturers, wholesalers, and retail stores. Many states
have enacted comprehensive products liability stat-
utes. There is no federal products liability law.
Theories of Product Liability
Some consumer advocates believe that a products
liability lawsuit is a consumer’s most effective weap-
on against dangerous products. While the govern-
ment regulates products, regulations may not re-
quire the offending company to suffer much of a
penalty. A products liability lawsuit allows the indi-
vidual citizen to PROSECUTE a case against reckless, in-
competent, or negligent manufacturers. Typically,
product defect cases are based on strict liability, rath-
er than NEGLIGENCE. It is irrelevant whether the man-
ufacturer or supplier exercised great care. If there is
a defect in the product that causes harm, that entity
will be liable for it. This means that it is not necessary
to prove ‘‘fault’’ on the part of the DEFENDANT. To win
the case, the plaintiff must prove that the product
was unreasonably dangerous or defective; that injury
resulted from use of the defective product; and that
the injury was caused by the defect in the product.
A repairer, seller, or manufacturer of a defective
product is liable for injuries sustained by persons
using the defective product. Liability may also extend
to persons who did not purchase the product but
were using the product in a foreseeable manner.
Also, people injured as a result of someone else
using a defective product may be able to recover if
their injuries were caused by the product’s defect. All
jurisdictions require a connection between the prod-
uct defect and the injury. Many PRODUCT LIABILITY
cases turn on experts’ TESTIMONY, where both plain-
tiff and defendant use expert testimony to establish
or deny a link between an alleged defect and an inju-
ry. Although strict liability is most common, products
liability lawsuits include negligence theories, strict li-
ability theories, and breach of WARRANTY theories.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 229
Negligence
A negligence theory requires the plaintiff to prove
that the defendant owed a duty to the consumer.
Manufacturers do, in fact, owe a duty to the users of
its products and to bystanders likely to be injured.
The manufacturer also has a duty in making its prod-
uct to guard against injuries likely to result from rea-
sonably foreseeable misuse of the product. The
plaintiff must also show that the manufacturer
breached its duty. The plaintiff should be able to
prove that a reasonable manufacturer, with knowl-
edge or constructive knowledge of the product’s de-
fect, would not have produced the product. The
plaintiff also must prove injury and that the defen-
dant’s breach caused the injury.
Strict Liability
Strict liability does not require that the injured
plaintiff show knowledge or fault on the manufactur-
er’s part. The plaintiff must show only that the prod-
uct was sold or distributed by a defendant and that
the product was unreasonably dangerous at the time
it left the defendant’s possession. The behavior or
knowledge (or lack thereof) of a products liability de-
fendant regarding the dangerous nature of a product
is not an issue for consideration under a strict liability
theory. Strict liability concerns only the condition of
the product itself while a negligence theory concerns
not only the product, but also the manufacturer’s
knowledge and conduct.
Breach of Warranty
Every product comes with an IMPLIED WARRANTY
that it is safe for its intended use. A defective product
that causes injury was not safe for its intended use
and thus can constitute a breach of warranty.
Types of Product Defects
There are three types of product defects: design
defects, manufacturing defects, and defects in mar-
keting, sometimes known a failure to warn. Design
defects exist before the product is manufactured.
Manufacturing defects result from the actual con-
struction or production of the item. Defects in mar-
keting deal with improper instructions and failures
to warn consumers of potential dangers with the
product.
Design Defects
In these cases injury results from a poor design,
even though there may be no defect in the manufac-
ture of the individual product. A product can be un-
reasonably dangerous for various reasons. The de-
sign of the product could be unreasonably
dangerous resulting in the entire line of products
being defective. Generally, in order to prove a design
defect case, the plaintiff is obligated to offer a reason-
able alternative design that the manufacturer could
have employed, which would have prevented the in-
jury and which would not have substantially dimin-
ished the product’s effectiveness. If the jury finds
that the plaintiff’s proposed alternative is reasonable
and would have eliminated the product’s risk, the
product is determined defective.
The manufacturer in a design defect case cannot
escape liability by relying on industry standard as a
defense or alleging that because the other manufac-
turers used the same design, the product was not de-
fective. Theoretically, the entire industry could be
producing products with design defects. However,
the industry standard defense is not the same as the
state of the art defense, which may be a valid defense
if the defendant can show that at the time the prod-
uct was built, no safer, alternative design existed. The
state of the art defense protects a manufacturer from
liability for a product, which was reasonably safe
years earlier but by current’s standards might be
deemed defective.
Manufacturing Defects
A manufacturing defect occurs when a particular
product is somehow manufactured incorrectly and
in its condition is unreasonably dangerous. The
plaintiff must show that the product was in its defec-
tive condition when it left the manufacturer’s posses-
sion and that it was unaltered at the time it caused
the injury. In short, the consumer must prove that
the manufacturer caused the defect. If the defective
part was a component in a larger product (for exam-
ple, a defective tire on an automobile), the compo-
nent producer may be liable, as well as the manufac-
turer of the larger product.
Marketing Defects
A product can also be unreasonably dangerous ab-
sent appropriate warnings. If a product could reason-
ably have been designed with a higher degree of safe-
ty, a proper warning will not necessarily convert the
unreasonably dangerous product into a safe, non-
defective one. An appropriate warning however, can
transform certain dangerous products, which would
be defective without the warning, into reasonably
safe ones. The warning must be thorough and con-
spicuous, and it must evaluate the magnitude of the
risk involved in failing to abide by the manufacturer’s
instructions. Failure to warn, or ‘‘inadequate warn-
CONSUMER ISSUES—DEFECTIVE PRODUCTS
230 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ing’’ cases refer to injuries caused as a result of a
product already known to be potentially dangerous
which was sold without a proper warning to the con-
sumer. Every product has a potential to be unsafe if
it is used incorrectly. Whether a warning is adequate
requires weighing all the possible circumstances. Ju-
ries are typically left with the task of determining
whether a given warning is adequate, appropriate,
suitable, or sufficient under the specific facts of a par-
ticular case.
Used Merchandise
Sellers of used merchandise may be liable de-
pending on the factual situation. If the product was
warranted or guaranteed, there may be a basis of lia-
bility. CORPORATE takeovers, purchases, break-ups of
companies may create additional potentially respon-
sible parties who are liable for injuries caused by de-
fective products created initially by others.
Foreign Corporations
Many products manufactured outside the United
States are sold in the United States. Additionally, U.S.
companies frequently outsource the production of
certain components to companies in foreign coun-
tries. While it is possible to sue a foreign corporation
for a defective product, the requirements of proper
legal procedure are sometimes extensive.
Comparative Fault
While under a products liability theory a manufac-
turer may be strictly liable for defects, the law recog-
nizes that certain products are inherently dangerous
and that consumers should know that the product
is dangerous when they purchase it. If a consumer
uses a defective product in a manner that an ordinary
consumer would and is injured as a result, then a
valid case may exist. Conversely, if a consumer uses
a product in a manner other than that intended by
the manufacturer, the consumer may be partially at
fault, despite the fact that the product may have been
defective.
Statute of Limitations
All states have some form of STATUTE OF
LIMITATIONS, which limits the time allowed for filing
a lawsuit. The time frame in which the STATUTE of lim-
itations runs usually begins from the time of the inju-
ry as a result of the defect. However, most states have
some form of a delayed DISCOVERY rule, which states
that the statute does not begin to run until the injury
is discovered. This may be important when the injury
is not obvious, perhaps until years later. There is a
related statute in some jurisdictions called a statute
of repose. It essentially provides that no claim can be
made based upon a defective product beyond a spec-
ified number of years after the date of manufacture.
Damages
COMPENSATORY DAMAGES awardable in products li-
ability cases include medical bills, reimbursement for
lost wages, and property damaged as a result of the
defective product. Pain and suffering experienced as
a result of injury and general damages are also re-
coupable. And if the conduct of the defendant was
egregious, the plaintiff may be entitled to PUNITIVE
DAMAGES.
Consumer Product Safety Commission
The U.S. Consumer Product Safety Commission
(CPSC) is an independent federal regulatory agency
created to protect the public from unreasonable
risks of injuries and deaths associated with some
15,000 types of consumer products. CPSC uses vari-
ous means to inform the public. These include local
and national media coverage, publication of numer-
ous booklets and product alerts, a website, a tele-
phone Hotline, the National Injury Information
Clearinghouse, CPSC’s Public Information Center
and responses to FREEDOM OF INFORMATION ACT
(FOIA) requests. For nearly 30 years the U.S. Con-
sumer Product Safety Commission (CPSC) has oper-
ated a statistically valid injury surveillance and follow-
back system known as the National Electronic Injury
Surveillance System (NEISS). The primary purpose
of NEISS has been to provide timely data on consum-
er product-related injuries occurring in the U.S.
NEISS injury data are gathered from the emergency
departments of 100 hospitals selected as a probabili-
ty sample of all U.S. hospitals with emergency de-
partments. The system’s foundation rests on emer-
gency department surveillance data, but the system
also has the flexibility to gather additional data at ei-
ther the surveillance or the investigation level. Sur-
veillance data enable CPSC analysts to make timely
national estimates of the number of injuries associat-
ed with (not necessarily caused by) specific consum-
CONSUMER ISSUES—DEFECTIVE PRODUCTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 231
er products. These data also provide EVIDENCE of the
need for further study of particular products. Subse-
quent follow-back studies yield important clues to
the cause and likely prevention of injuries.
Additional Resources
Product Liability Entering the 21st Century: The U.S. Per-
spective. Moore, Michael J., Brookings Institution
Press, 2001.
Why Lawsuits Are Good for America: Disciplined Democ-
racy, Big Business, and the Common Law. Bogus, Carl,
NYU Press, 2001.
Organizations
Consumer Action
717 Market Street, Suite 310
San Francisco, CA 94103 USA
Phone: (415) 777-9635
Fax: (415) 777-5267
URL: http://www.consumer-action.org
National Consumers League
1701 K Street, NW, Suite 1200
Washington, DC 20006 USA
Phone: (202) 835-3323
Fax: (202) 835-0747
URL: http://www.nclnet.org
U. S. Consumer Product Safety Commission
4330 East-West Highway
Bethesda, MD 20814-4408
Phone: (301) 504-0990
Fax: (301) 504-0124
URL: http://www.cpsc.gov
CONSUMER ISSUES—DEFECTIVE PRODUCTS
232 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CONSUMER ISSUES
FEDERAL TRADE COMMISSION/
REGULATION
Sections within this essay:
• Background
• Bureau of Consumer Protection
- The Division of Advertising Practices
- The Division of Enforcement
- The Division of Financial Practices
- The Division of Marketing Practices
- The Division of Planning and Infor-
mation
• Bureau of Economics
• Bureau of Competition
- Antitrust Laws
- Mergers
• FTC Litigation
• Additional Resources
Background
The Federal Trade Commission (FTC) works to
ensure that the nation’s markets are efficient and
free of practices which might harm consumers. To
ensure the smooth operation of our free market sys-
tem, the FTC enforces federal CONSUMER PROTECTION
laws that prevent FRAUD, deception, and unfair busi-
ness practices. The Commission also enforces feder-
al antitrust laws that prohibit anticompetitive merg-
ers and other business practices that restrict
competition and harm consumers.
The FTC was created in 1914 to prevent unfair
methods of competition in commerce. In 1938, Con-
gress passed the Wheeler-Lea Amendment, which in-
cluded a broad prohibition against ‘‘unfair and de-
ceptive acts or practices.’’ After that, the FTC was
directed to administer a wide variety of other con-
sumer protection laws, including the Telemarketing
Sales Rule, the Pay-Per-Call Rule and the Equal Credit
Opportunity Act. In 1975, Congress passed the
Magnuson-Moss Act which gave the FTC the authori-
ty to adopt trade regulation rules which define unfair
or deceptive acts in particular industries. Trade regu-
lation rules have the force of law.
Today, the FTC is an independent agency which
reports directly to Congress. The commission is
headed by five commissioners, nominated by the
president and confirmed by the Senate, each serving
a seven-year term. The president chooses one com-
missioner to act as chairman. No more than three
commissioners can be of the same political party.
The commission is further divided into bureaus and
divisions, which are responsible for various aspects
of FTC operations.
Bureau of Consumer Protection
Bureau of Consumer Protection’s mandate is to
protect consumers against unfair, deceptive, or
FRAUDULENT practices. The bureau enforces a variety
of consumer protection laws enacted by Congress, as
well as trade regulation rules issued by the commis-
sion. Its actions include individual company and in-
dustry-wide investigations, administrative and feder-
al court LITIGATION, rulemaking proceedings, and
consumer and business education. In addition, the
Bureau contributes to the commission’s on-going ef-
forts to inform Congress and other government enti-
ties of the impact that proposed actions could have
GALE ENCYCLOPEDIA OF EVERYDAY LAW 233
on consumers. The Bureau of Consumer Protection
is divided into six divisions and programs, each with
its own areas of expertise.
The Division of Advertising Practices
The Division of Advertising Practices is the na-
tion’s enforcer of federal truth-in-advertising laws. Its
law enforcement activities focus on claims for foods,
drugs, dietary supplements, and other products
promising health benefits, health fraud on the Inter-
net, weight-loss advertising and marketing directed
to children, performance claims for computers, ISPs
and other high-tech products and services, tobacco
and alcohol advertising, children’s privacy online,
claims about product performance made in national
or regional newspapers and magazines; in radio and
TV commercials, including infomercials, through di-
rect mail to consumers, or on the Internet.
The Division of Enforcement
The Division of Enforcement conducts a wide va-
riety of law enforcement activities to protect con-
sumers, including ensuring compliance with admin-
istrative and federal court orders entered in
consumer protection cases, conducting investiga-
tions and prosecuting civil actions to stop fraudulent,
unfair or deceptive marketing and advertising prac-
tices, and enforcing consumer protection laws, rules
and guidelines. This division monitors compliance
with commission cease and desist orders and federal
court injunctive orders, investigates violations of
consumer protection laws, and enforces a number of
trade laws, rules and guides, including:
The Mail or Telephone Order Merchandise Rule,
which requires companies to ship purchases when
promised (or within 30 days if no time is specified)
or to give consumers the option to cancel their or-
ders for a refund.
The Textile, Wool, Fur and Care Labeling Rules,
which require proper origin and fiber content label-
ing of textile, wool, and fur products, and care label
instructions attached to clothing and fabrics.
Energy Rules, which require the disclosure of en-
ergy costs of home appliances (the Appliance Label-
ing Rule), octane ratings of gasoline (the Fuel Rating
Rule), and the efficiency rating of home insulation
(the R-Value Rule).
Green Guides, which govern claims that consum-
er products are environmentally safe, recycled, recy-
clable, ozone-friendly, or biodegradable.
The Division of Financial Practices
The Division of Financial Practices is responsible
for developing policy and enforcing laws related to
financial and lending practices affecting consumers.
It also is responsible for most of the agency’s con-
sumer privacy program. Its duties include enforce-
ment of the FAIR CREDIT REPORTING ACT (FCRA)
which ensures the accuracy and privacy of informa-
tion kept by credit bureaus and other consumer re-
porting agencies and gives consumers the right to
know what information these entities are distribut-
ing about them to creditors, insurance companies,
and employers. This division also enforces the
Gramm-Leach-Bliley Act (GLBA). The GLBA requires
financial institutions to provide notice to consumers
about their information practices and to give con-
sumers an opportunity to direct that their personal
information not be shared with non-affiliated third
parties.
The Division of Financial Practices monitors the
Truth in Lending Act, which requires creditors to dis-
close in writing certain cost information, such as the
ANNUAL PERCENTAGE RATE (APR), before consumers
enter into credit transactions, the Consumer Leasing
Act, which requires lessors to give consumers infor-
mation on LEASE costs and terms, and the Fair Debt
Collection Practices Act, which prohibits debt collec-
tors from engaging in unfair, deceptive, or abusive
practices, including over-charging, harassment, and
disclosing consumers’ debt to third parties.
The Division of Marketing Practices
The Division of Marketing Practices enforces fed-
eral consumer protection laws by filing actions in
federal district court on behalf of the commission to
stop scams, prevent scam artists from repeating their
fraudulent schemes in the future, freeze assets, and
obtain compensation for scam victims. The division
also is responsible for enforcement of the Telemar-
keting Sales Rule, which prohibits deceptive sales
pitches and protects consumers from abusive, un-
wanted, and late-night sales calls, the 900 Number
Rule, which requires sellers of pay-per-call (900 num-
bers) to clearly disclose the price of services, and the
Funeral Rule, which requires funeral directors to dis-
close price and other information about their ser-
vices to consumers.
The Division of Planning and Information
The Division of Planning and Information helps
consumers get information. This Division runs the
Consumer Response Center, with counselors who
respond to consumer complaints and requests for in-
CONSUMER ISSUES—FEDERAL TRADE COMMISSION/REGULATION
234 GALE ENCYCLOPEDIA OF EVERYDAY LAW
formation. It also supervises the Identity Theft Data
Clearinghouse, with staff who tell consumers how to
protect themselves from identity theft and what to
do if their identity has been stolen. Additionally, this
division manages the Consumer Sentinel, a secure,
online database and cyber tool available to hundreds
of civil and criminal law enforcement agencies in the
United States and abroad.
Bureau of Economics
The Bureau of Economics helps the FTC evaluate
the economic impact of its actions. To do so, the Bu-
reau provides economic analysis and support to anti-
trust and consumer protection investigations and
rulemakings. It also analyzes the impact of govern-
ment regulation on competition and consumers and
provides Congress, the EXECUTIVE BRANCH and the
public with economic analysis of market processes as
they relate to antitrust, consumer protection, and
regulation.
This Bureau provides guidance and support to the
agency’s antitrust and consumer protection enforce-
ment activities. In the antitrust area, the Bureau par-
ticipates in the investigation of alleged anticompeti-
tive acts or practices and provides advice on the
economic merits of alternative antitrust actions. If an
enforcement action is initiated, the Bureau inte-
grates economic analysis into the proceeding (some-
times providing the expert witness at trial) and works
with the Bureau of Competition to devise appropri-
ate remedies. In the consumer protection area, this
bureau provides economic support and analysis of
potential commission actions in both cases and rule-
makings handled by the Bureau of Consumer Protec-
tion. Bureau economists also provide analysis of ap-
propriate PENALTY levels to deter activity that harms
consumers.
The Bureau of Economics also conducts econom-
ic analysis of various markets and industries. This
work focuses on the economic effects of regulation
and on issues important to antitrust and consumer
protection policy. Many of these analyses are pub-
lished as staff reports.
Bureau Of Competition
The Bureau of Competition prevents anticompeti-
tive mergers and other anticompetitive business
practices in the marketplace. The bureau fulfills this
role by reviewing proposed mergers and other busi-
ness practices for possible anticompetitive effects,
and, when appropriate, recommending that the
commission take formal law enforcement action to
protect consumers. The bureau also serves as a re-
search and policy resource on competition topics
and provides guidance to business on complying
with the antitrust laws.
Antitrust Laws
The bureau protects competition through en-
forcement of the antitrust laws. These laws include:
Section 5 of the Federal Trade Commission Act,
which prohibits unfair methods of competition, Sec-
tion 1 of the Sherman Act, which outlaws every con-
tract, combination, or CONSPIRACY, in restraint of
trade, Section 2 of the Sherman Act, which makes it
unlawful for a company to monopolize, or attempt
to monopolize, trade or commerce, Section 7 of the
CLAYTON ACT, which prohibits mergers and acquisi-
tions the effect of which may be substantially to less-
en competition or to tend to create a MONOPOLY, and
Section 7A of the Clayton Act (added in 1976 by the
Hart-Scott-Rodino Antitrust Improvements Act),
which requires companies to notify antitrust agen-
cies before certain planned mergers.
Mergers
Most mergers actually benefit competition and
consumers by allowing firms to operate more effi-
ciently. In a competitive market, firms pass on these
lower costs to consumers. But some mergers, by re-
ducing competition, can cost consumers many mil-
lions of dollars every year in the form of higher prices
and reduced product quality, consumer choice, and
innovation. The Bureau of Competition reviews
mergers to determine which ones have the potential
to harm consumers; thoroughly investigates those
that may be troublesome; and recommends enforce-
ment action to the commission when necessary to
protect competition and consumers. The FTC chal-
lenges only a small percentage of mergers each year.
Various remedies may be suitable for transactions
that pose antitrust concerns. These include
SETTLEMENT, litigation, or ABANDONMENT of the trans-
action by the parties.
FTC Litigation
Typically, FTC investigations are non-public to
protect both the investigation and the companies in-
volved. If the FTC believes that a person or company
has violated the law or that a proposed merger may
violate the law, the agency may attempt to obtain vol-
untary compliance by entering into a consent order
CONSUMER ISSUES—FEDERAL TRADE COMMISSION/REGULATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 235
with the company. A company that signs a consent
order need not admit that it violated the law, but it
must agree to stop the disputed practices outlined
in an accompanying complaint or undertake certain
obligations to resolve the anticompetitive aspects of
its proposed merger. If a consent agreement cannot
be reached, the FTC may issue an administrative
complaint or seek injunctive relief in the federal
courts. The FTC’s administrative complaints initiate
a formal proceeding that is much like a federal court
trial but before an administrative law judge. EVIDENCE
is submitted, TESTIMONY is heard, and witnesses are
examined and cross-examined. If a law violation is
found, a CEASE AND DESIST ORDER may be issued. Ini-
tial decisions by administrative law judges may be ap-
pealed to the full commission. Final decisions issued
by the commission may be appealed to the U.S.
Court of Appeals and, ultimately, to the U.S. Su-
preme Court.
In some circumstances, the FTC can go directly to
court to obtain an injunction, civil penalties, or con-
sumer REDRESS. In the merger enforcement arena,
the FTC may seek a PRELIMINARY INJUNCTION to block
a proposed merger pending a full EXAMINATION of the
proposed transaction in an administrative proceed-
ing. The injunction preserves the market’s competi-
tive status quo. The FTC seeks federal court injunc-
tions in consumer protection matters typically in
cases of ongoing consumer fraud.
Additional Resources
Antitrust Enforcement Agencies: The Antitrust Division of
the Department of Justice and the Bureau of Competi-
tion of the Federal Trade Commission: Congressional
Hearing. Hyde, Henry, DIANE Publishing, 2000.
Organizations
American Antitrust Institute
2919 Ellicott Street, NW, Suite 1000
Washington, DC 20008-1022 USA
Phone: (202) 244-9800
URL: http://www.antitrustinstitute.org
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580 USA
Phone: (877) FTC-HELP (382-4357)
URL: http://www.ftc.gov
CONSUMER ISSUES—FEDERAL TRADE COMMISSION/REGULATION
236 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CONSUMER ISSUES
MAIL-ORDER PURCHASES/
TELEMARKETING
Sections within this essay:
• Background
• Direct Mail
- Deceptive Mail Prevention and En-
forcement Act
- 900 Telephone Number Solicitations
- Solicitations Disguised As Invoices
- Sexually Oriented Mail Solicitations
• Telephone Solicitation
- The Telephone Consumer Protec-
tion Act
- Automatic Telephone Dialing Sys-
tems
- Do Not Call Lists
• The Federal Trade Commission
- Mail or Telephone Order Rule
- Bureau of Consumer Protection
- Obligations of Publishers and Agen-
cies
• FTC Litigation
• Additional Resources
Background
Mail order advertising has its roots in the 1800s,
when Richard Sears, a railroad clerk in Minnesota,
found himself with an abandoned case of pocket
watches. Using his list of other railroad clerks
throughout the Midwest, he marketed these watches
and quickly sold them. Sears recognized immediately
that an entrepreneur with a list of accurate names
and addresses and a stock of quality merchandise no
longer needed a store. He only needed a good mes-
sage delivery vehicle and first-rate customer service.
And so began the company that would later become
known as Sears Roebuck. With the advent of the tele-
phone, telemarketing followed suit. Along with di-
rect mail and telemarketing came governmental reg-
ulation.
Direct Mail
The U.S. Postal Inspection Service is the law en-
forcement branch of the U.S. Postal Service, empow-
ered by federal laws and regulations to investigate
and enforce over 200 federal statutes related to
crimes against the U.S. Mail, the Postal Service, and
its employees. Postal inspectors investigate any
crime in which the U.S. Mail is used to further a
scheme, whether it originated in the mail, by tele-
phone or on the Internet. The illegal use of the U.S.
Mail determines a MAIL FRAUD. If EVIDENCE of a postal-
related violation exists, postal inspectors may seek
prosecutive or administrative action against a viola-
tor. Postal inspectors base their investigations of mail
FRAUD on the number, pattern and substance of com-
plaints received from the public.
Deceptive Mail Prevention and Enforcement
Act
The Deceptive Mail Prevention and Enforcement
Act of 1999 requires mailings to clearly display on
rules and order forms, that no purchase is necessary
to enter contest and state that a purchase does not
improve the chance of winning. They must state the
terms and conditions of the sweepstakes promotion,
including rules and entry procedures; the sponsor or
GALE ENCYCLOPEDIA OF EVERYDAY LAW 237
mailer of the promotion and principal place of busi-
ness, or other contact address of sponsor or mailer;
estimated odds of winning each prize; the quantity,
estimated retail value, and nature of each prize; and
the schedule of any payments made over time. The
act imposes requirements for mail related to skill
contests mailings, which must disclose the number
of rounds, cost to enter each round, whether subse-
quent rounds will be more difficult, and the maxi-
mum cost to enter all rounds; the percentage of en-
trants who may solve correctly the skill contest; the
identity of the judges and the method used in judg-
ing; the date the winner will be determined, as well
as quantity and estimated value of each prize. The
law imposes new federal standards on facsimile
checks sent in any mailing. The checks must include
a statement on the check itself that it is non-
negotiable and has no cash value. The law prohibits
mailings that imply a connection to, approval of, or
endorsement by the federal government through the
misleading use of a seal, insignia, reference to the
postmaster general, CITATION to a federal statue,
trade or brand name, or any other term or symbol,
unless the mailings carry two disclaimers. The law re-
quires companies sending sweepstakes or skill con-
tests to establish a system and include in their mail-
ings a telephone number or address, which
consumers could use to have themselves removed
from the mailing lists of such companies. The U.S.
Postal Inspection Service is responsible for investi-
gating cases of fraud when the U.S. Mail is used as
part of the scheme.
900 Telephone Number Solicitations
The 900 telephone numbers, in which the caller
pays a fee per minute, have been used by legitimate
entities; however, some mailings attempt to lure
consumers into calling a 900 number claiming the
consumer has won a sweepstakes or prize. Other 900
number solicitations offer products or services, such
as credit repair or a travel package. People with bad
credit who hope to receive a credit card by calling a
900 number might receive a list of banks to which
they can apply for such a card. Those who are told
to call because they’re winners in a sweepstakes may
receive nothing but a charge on a phone bill. Some-
times, a call to a 900 number requires the consumer
to listen to a long recorded sales pitch, resulting in
a high phone charge.
Solicitations Disguised as Invoices
Title 39, United States Code, Section 3001, makes
it illegal to mail a SOLICITATION in the form of an in-
voice, bill, or statement of account due unless it con-
spicuously bears a notice on its face that it is, in fact,
merely a solicitation. This disclaimer must be in very
large (at least 30-point) type and must be in boldface
capital letters in a color that contrasts prominently
with the background against which it appears. The
disclaimer must not be modified, qualified, or ex-
plained, such as with the phrase ‘‘Legal notice re-
quired by law.’’ It must be the one prescribed in the
STATUTE, or alternatively, the following notice pre-
scribed by the U.S. Postal Service: THIS IS NOT A
BILL. THIS IS A SOLICITATION. YOU ARE UNDER
NO OBLIGATION TO PAY THE AMOUNT STATED
ABOVE UNLESS YOU ACCEPT THIS OFFER. Some
solicitations disguise their true nature. Others identi-
fy themselves as solicitations, but only in the ‘‘fine
print.’’ A solicitation whose appearance does not
conform to the requirements of Title 39, United
States Code, Section 3001, constitutes prima facie ev-
idence of violation of the federal False Representa-
tion Statute. Therefore, solicitations in the form of
invoices, bills, or statements of account due which
do not contain the large and conspicuous disclaimer
required by the law will not be carried or delivered
by mail if they come to the attention of the Postal
Service, and will be disposed of as the Postal Service
shall direct.
Sexually Oriented Mail Solicitations
Consumers can have their names and the names
of their minor children placed on a United States
Postal Department list of persons who do not want
to receive unsolicited sexually oriented advertise-
ments through the mail. Form 1500, Application for
Listing and/or Prohibitory Order, is available at any
local post office. Thirty days after protection begins,
any mailer who sends the consumer sexually ori-
ented advertisements may be subject to civil and
criminal sanctions. Name will remain on the list for
five years.
Telephone Solicitation
A telephone solicitation is a telephone call that
acts as an advertisement. In some cases unlisted or
non-listed numbers can be obtained from a directory
assistance operator. They, along with non-published
numbers, may be sold to other organizations. Some
sales organizations call all numbers in numerical
order for a neighborhood or area. The FCC’s rules
prohibit telephone solicitation calls to homes before
8 am or after 9 p.m. A person placing a telephone so-
licitation call must provide his or her name, the name
of the person or entity on whose behalf the call is
CONSUMER ISSUES—MAIL-ORDER PURCHASES/TELEMARKETING
238 GALE ENCYCLOPEDIA OF EVERYDAY LAW
being made, and a telephone number or address at
which that person or entity may be contacted. The
term telephone solicitation does not include calls or
messages placed with the receiver’s prior consent,
regarding a tax-exempt non-profit organization, or
from a person or organization with which the receiv-
er has an established business relationship. An estab-
lished business relationship exists if the consumer
has made an inquiry, application, purchase, or trans-
action regarding products or services offered by the
person or entity involved.
The Telephone Consumer Protection Act
The Telephone CONSUMER PROTECTION Act of
1991 (TCPA) was enacted by Congress to reduce the
nuisance and invasion of privacy caused by telemar-
keting and prerecorded calls. Congress ordered the
FCC to make and clarify certain regulations. The
TCPA imposes restrictions on the use of automatic
telephone dialing systems, of artificial or prere-
corded voice messages, and of telephone facsimile
machines to send unsolicited advertisements. Specif-
ically, the TCPA prohibits autodialed and prere-
corded voice message calls to emergency lines,
health care facilities or similar establishments, and
numbers assigned to radio common carrier services
or any service for which the called party is charged
for the call. The TCPA also prohibits artificial or pre-
recorded voice message calls to residences made
without prior express consent. Telephone facsimile
machines may not transmit unsolicited advertise-
ments. Those using telephone facsimile machines or
transmitting artificial or prerecorded voice messages
are subject to certain identification requirements. Fi-
nally, the TCPA requires that the Commission con-
sider several methods to accommodate telephone
subscribers who do not wish to receive unsolicited
advertisements, including live voice solicitations.
The statute also outlines various remedies for viola-
tions of the TCPA.
Automatic Telephone Dialing Systems
Automatic telephone dialing systems, also known
as autodialers, generate a lot of consumer com-
plaints. Autodialers produce, store, and dial tele-
phone numbers using a random or sequential num-
ber generator. Autodialers are usually used to place
artificial (computerized) or prerecorded voice calls.
Autodialers and any artificial or prerecorded voice
messages may not be used to contact numbers as-
signed to any emergency telephone line, the tele-
phone line of any guest or patient room at a hospital,
health care facility, cellular telephone service, or
other radio common carrier service. Calls using au-
todialers or artificial or prerecorded voice messages
may be placed to businesses, although the FCC’s
rules prohibit the use of autodialers in a way that ties
up two or more lines of a multi-line business at the
same time.
If an autodialer is used to deliver an artificial or
prerecorded voice message, that message must state,
at the beginning, the identity of the business, individ-
ual, or other entity initiating the call. During or after
the message, the caller must give the telephone
number (other than that of the autodialer or prere-
corded message player that placed the call) or ad-
dress of the business, other entity, or individual that
made the call. It may not be a 900 number or any
other number for which charges exceed local or long
distance transmission charges. Autodialers that deliv-
er a recorded message must release the called party’s
telephone line within 5 seconds of the time that the
calling system receives notification that the called
party’s line has hung up.
Do Not Call Lists
The FCC requires a person or entity placing live
telephone solicitations to maintain a record of any
consumer request not to receive future telephone
solicitations from that person or entity. A record of
a do-not-call request must be maintained for ten
years. This request should also stop calls from affiliat-
ed entities if individuals would reasonably expect
them to be included, given the identification of the
caller and the product being advertised. Tax-exempt
non-profit organizations are not required to keep do-
not-call lists. The Direct Marketing Association
(DMA) sponsors the Telephone Preference Service
(TPS) which maintains a do-no-call list. DMA mem-
bers are required to use this list. Registration is free
and the request remains on file for 5 years. Finally,
as of 2002, many states had statewide no-call lists for
residents in that state.
Some states permit consumers to file law suits
against violators who continue to call despite the
consumer being on a no-call list. Consumers can
sometimes seek PUNITIVE DAMAGES if the caller willful-
ly and knowingly violated do-not-call requirements.
States themselves may initiate a civil suit in federal
district court against any person or entity that en-
gages in a pattern or practice of violations of the
TCPA or FCC rules. While the FCC may not award
monetary or other damages, it can give citations or
fines to those violating the TCPA or other FCC rules
regarding unsolicited telephone marketing calls.
Consumers who file complaints with the FCC retain
their private right of action.
CONSUMER ISSUES—MAIL-ORDER PURCHASES/TELEMARKETING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 239
The Federal Trade Commission
One of the most important enforcement agencies
for direct marketers is the Federal Trade Commis-
sion (FTC), which enforces federal consumer protec-
tion laws passed by Congress and which has the au-
thority to adopt regulations and rules interpreting
and implementing those laws. There are rules on
marketing to children online, on regulations for dis-
tance selling delivery requirements, for telemarket-
ing, and many other subjects. Each of the states has
similar powers and authority, usually under the office
of the state’s attorney general, the chief law enforce-
ment officer of the state. The Federal Trade Commis-
sion (FTC) Telemarketing Sales Rule requires certain
disclosures and prohibits misrepresentations. The
Rule covers most types of telemarketing calls to con-
sumers, including calls to pitch goods, services,
sweepstakes, prize promotions, and investment op-
portunities. It also applies to calls consumers make
in response to postcards or other materials received
in the mail. Calling times are restricted to the hours
between 8 a.m. and 9 p.m. Telemarketers must dis-
close that it is a sales call and for which company. It
is illegal for telemarketers to misrepresent any infor-
mation, including facts about goods or services, earn-
ings potential, profitability, risk or liquidity of an in-
vestment, or the nature of a prize in a prize-
promotion scheme. Telemarketers must disclose the
total cost of the products or services offered and all
restrictions on getting or using them, and that a sale
is final or non-refundable.
The FTC works to ensure that the nation’s mar-
kets are efficient and free of practices which might
harm consumers. To ensure the smooth operation
of a free market system, the FTC enforces federal
consumer protection laws that make illegal fraud, de-
ception, and unfair business practices. The Federal
Trade Commission Act allows the FTC to act in the
interest of all consumers to prevent deceptive and
unfair acts or practices. In interpreting the Act, the
Commission has determined that, with respect to ad-
vertising, a representation, omission, or practice is
deceptive if it is likely to mislead consumers and af-
fect consumers’ behavior or decisions about the
product or service. In addition, an act or practice is
unfair if the injury it causes, or is likely to cause, is
substantial, not outweighed by other benefits, and
not reasonably avoidable.
The FTC Act’s prohibition on unfair or deceptive
acts or practices broadly covers advertising claims,
marketing and promotional activities, and sales prac-
tices in general. The Act is not limited to any particu-
lar medium. Accordingly, the Commission’s role in
protecting consumers from unfair or deceptive acts
or practices encompasses advertising, marketing,
and sales online, as well as the same activities in
print, television, telephone, and radio. For certain in-
dustries or subject areas, the Commission issues
rules and guides. Rules prohibit specific acts or prac-
tices that the Commission has found to be unfair or
deceptive. Guides help businesses in their efforts to
comply with the law by providing examples or direc-
tion on how to avoid unfair or deceptive acts or prac-
tices. Many rules and guides address claims about
products or services or advertising in general and are
not limited to any particular medium used to dissem-
inate those claims or advertising. Therefore, the
plain language of many rules and guides applies to
claims made on the Internet. Solicitations made in
print, on the telephone, radio, TV or online fall with-
in the rule’s scope.
Mail or Telephone Order Rule
Shopping by phone or mail is a convenient alter-
native to shopping at a store. By law, a company
must ship a consumer’s order within the time stated
in its ads. If no time is promised, the company
should ship the order within 30 days after receiving
it. If the company is unable to ship within the prom-
ised time, it must provide the consumer with an op-
tion notice. This notice gives the consumer the
choice of agreeing to the delay or canceling the
order and receiving a prompt refund. If a company
does not promise a shipping time and the consumer
is applying for credit, the company has 50 days to
ship after receiving the order.
Bureau of Consumer Protection
The FTC’s Bureau of Consumer Protection pro-
tects consumers against unfair, deceptive, or
FRAUDULENT practices. The Bureau enforces a variety
of consumer protection laws enacted by Congress, as
well as trade regulation rules issued by the Commis-
sion. Its actions include individual company and in-
dustry-wide investigations, administrative and feder-
al court LITIGATION, rulemaking proceedings, and
consumer and business education. In addition, the
Bureau contributes to the Commission’s on-going ef-
forts to inform Congress and other government enti-
ties of the impact that proposed actions could have
on consumers. The Bureau of Consumer Protection
is divided into six divisions and programs, each with
its own areas of expertise. One of the divisions is the
Division of Advertising Practices.
Within the Bureau of Consumer Protection is the
Division of Advertising Practices and the Division of
CONSUMER ISSUES—MAIL-ORDER PURCHASES/TELEMARKETING
240 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Enforcement. These entities are the nation’s enforc-
ers of federal truth-in-advertising laws. The FTC Act
prohibits unfair or deceptive advertising in any medi-
um. That is, advertising must tell the truth and not
mislead consumers. A claim can be misleading if rele-
vant information is left out or if the claim implies
something that is not true. In addition, claims must
be substantiated especially when they concern
health, safety, or performance. The type of evidence
may depend on the product, the claims, and what ex-
perts believe necessary. Sellers are responsible for
claims they make about their products and services.
Third parties such as advertising agencies or website
designers and catalog marketers also may be liable
for making or disseminating deceptive representa-
tions if they participate in the preparation or distri-
bution of the advertising, or know about the decep-
tive claims.
Obligations of Publishers and Agencies
Advertising agencies (and more recently, website
designers) are responsible for reviewing the informa-
tion used to SUBSTANTIATE ad claims. These agencies
may not simply rely on an advertiser’s assurance that
the claims are substantiated. In determining whether
an ad agency should be held liable, the FTC looks at
the extent of the agency’s participation in the prepa-
ration of the challenged ad, and whether the agency
knew or should have known that the ad included
false or deceptive claims. Likewise, catalog and maga-
zine publishers can be held responsible for material
distributed. Publications may be required to provide
documentation to back up assertions made in the ad-
vertisement. Repeating what the manufacturer
claims about the product is not necessarily sufficient.
The Division of Enforcement conducts a wide variety
of law enforcement activities to protect consumers,
including deceptive marketing practices. This divi-
sion monitors compliance with Commission cease
and desist orders and federal court injunctive orders,
investigates violations of consumer protection laws,
and enforces a number of trade laws, rules and
guides.
FTC Litigation
Typically, FTC investigations are non-public to
protect both the investigation and the companies in-
volved. If the FTC believes that a person or company
has violated the law, the agency may attempt to ob-
tain voluntary compliance by entering into a consent
order with the company. A company that signs a con-
sent order need not admit that it violated the law, but
it must agree to stop the disputed practices outlined
in an accompanying complaint. If a consent agree-
ment cannot be reached, the FTC may issue an ad-
ministrative complaint or seek injunctive relief in the
federal courts. The FTC’s administrative complaints
initiate a formal proceeding that is much like a feder-
al court trial but before an administrative law judge:
Evidence is submitted, TESTIMONY is heard, and wit-
nesses are examined and cross-examined. If a law vi-
olation is found, a CEASE AND DESIST ORDER may be is-
sued. Initial decisions by administrative law judges
may be appealed to the full Commission. Final deci-
sions issued by the Commission may be appealed to
the U.S. Court of Appeals and, ultimately, to the U.S.
Supreme Court. In some circumstances, the FTC can
go directly to court to obtain an injunction, civil pen-
alties or consumer REDRESS. The injunction preserves
the market’s competitive status quo. The FTC seeks
federal court injunctions in consumer protection
matters typically in cases of ongoing consumer fraud.
Additional Resources
Advertising: Principles and Practice. Wells, William, Pren-
tice Hall, 1999.
Copywriting for the Electronic Media: A Practical Guide.
Meeske, Milan, Wadsworth Publishing Company, 1999.
Trust Us, We’re Experts: How Industry Manipulates Sci-
ence and Gambles with Your Future. Rampton, Shel-
don and John Stauber, Putnam, 2000.
Organizations
Council of Better Business Bureaus (CBBB)
4200 Wilson Blvd., Suite 800
Arlington, VA 22203-1838 USA
Phone: (703) 276-0100
Fax: (703) 525-8277
URL: http://www.bbb.org
Direct Marketing Association
P.O. Box 9014
Farmingdale, NY 11735 USA
URL: www.the-dma.org
Federal Communications Commission
445 12th Street SW
Washington, DC 20554 USA
Phone: (888) CALL-FCC
Fax: (202) 418-0232
URL: http://www.fcc.gov
Federal Trade Commission
600 Pennsylvania Avenue, NW
CONSUMER ISSUES—MAIL-ORDER PURCHASES/TELEMARKETING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 241
Washington, DC 20580 USA
Phone: (877) FTC-HELP
URL: http://www.ftc.gov
CONSUMER ISSUES—MAIL-ORDER PURCHASES/TELEMARKETING
242 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CONSUMER ISSUES
PRODUCT SAFETY AND CONSUMER
PROTECTION
Sections within this essay:
• Background
• Warranties
- Implied Warranties
- Express Warranties
- Extended Warranties
• Federal Acts
- Food Quality Protection Act
- Safe Drinking Water Act
- Federal Insecticide, Fungicide, and
Rodenticide Act
• Consumer Vehicle Purchases
- Lemon Laws
• Federal Agencies
- Consumer Product Safety Commis-
sion
- Office of Consumer Litigation
- Internet Fraud Complaint Center
- U.S. Food and Drug Administration
- Center for Biologics Evaluation and
Research
- Federal Trade Commission
- National Highway Traffic Safety Ad-
ministration
• Additional Resources
Background
CONSUMER PROTECTION encompasses a broad
range of consumer issues including, credit, utilities,
services and goods. Many consumer complaints are
simply disputes that may be resolved through com-
munication between the consumer and the business.
Others, however, others may be FRAUDULENT transac-
tions. Consumers are protected under both state and
federal laws. Some states have laws regarding major
purchases that allow for a ‘‘cooling off’’ period in
which the consumer can return the item or cancel
the contract with no PENALTY. Each state Attorney
General’s office has some type of public protection
division responsible for enforcing the rights of con-
sumers in business and service transactions and to
protect the CIVIL RIGHTS of citizens. Federal standards
are enforced by the Federal Trade Commission,
which oversees a number of federal antitrust and
consumer protection laws. The Commission seeks to
ensure that the nation’s markets function competi-
tively, and are vigorous, efficient, and free of undue
restrictions. The Commission also works to enhance
the smooth operation of the marketplace by elimi-
nating acts or practices that are unfair or deceptive.
In general, the Commission’s efforts are directed to-
ward stopping actions that threaten consumers’ op-
portunities to exercise informed choice.
Warranties
A WARRANTY is the promise of a manufacturer or
seller to resolve problems the product may have.
Warranties can cover the retail sale of consumer
goods. Consumer goods include new products or
parts which are used, bought, or leased for use pri-
marily for personal, family, or household purposes.
There are two kinds of warranties, implied warranties
and express warranties.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 243
Implied Warranties
Implied warranties are unspoken, unwritten
promises, created by state law. In consumer product
transactions, there are two types of implied warran-
ties. They are the IMPLIED WARRANTY of merchantabili-
ty and the implied warranty of fitness for a particular
purpose. The implied warranty of merchantability is
a merchant’s basic promise that the goods sold will
function and have nothing significantly wrong with
them. The implied warranty of fitness for a particular
purpose is a promise that the seller’s product can be
used for some specific purpose. Implied warranties
are promises about the condition of products at the
time they are sold, but they do not assure that a
product will last for a specific length of time. Implied
warranties do not cover problems caused by misuse,
ordinary wear, failure to follow directions, or im-
proper maintenance. Generally, there is no specified
duration for implied warranties under state laws.
However, the state statutes of limitations for breach
of either an express or an implied warranty are gen-
erally four years from date of purchase. This means
that buyers have four years in which to discover and
seek a remedy for problems that were present in the
product at the time it was sold. It does not mean that
the product must last for four years. Implied warran-
ties apply only when the seller is a merchant who
deals in such goods, not when a sale is made by a pri-
vate individual.
Express Warranties
Express warranties are explicit warranties. Express
warranties can take a variety of forms, ranging from
advertising claims to formal certificates. An express
warranty can be made either orally or in writing;
however, only written warranties on consumer prod-
ucts are covered by the MAGNUSON-MOSS WARRANTY
ACT.
Extended Warranties
Extended warranties are actually service contracts.
Like warranties, service contracts do provide repair
and/or maintenance for a specific period of time;
however, service contracts cost extra and are sold
separately. Warranties are included in the price of
the product; service contracts are not.
Federal Acts
Food Quality Protection Act
The Food Quality Protection Act (FQPA) of 1996
amended the Federal Insecticide, Fungicide, and Ro-
denticide Act (FIFRA) and the Federal Food Drug,
and Cosmetic Act (FFDCA). These amendments fun-
damentally changed the way EPA regulates pesti-
cides. The requirements included a new safety stan-
dard—reasonable certainty of no harm—that must
be applied to all pesticides used on food.
Safe Drinking Water Act
The Safe Drinking Water Act was established in
1974 to protect the quality of drinking water in the
United States. This law focuses on all waters actually
or potentially designed for drinking use, whether
from above ground or underground sources. The Act
authorized EPA to establish safe standards of purity
and required all owners or operators of public water
systems to comply with primary (health-related)
standards. State governments, which assume this
power from EPA, also encourage attainment of sec-
ondary standards (nuisance-related).
Federal Insecticide, Fungicide, and
Rodenticide Act
The primary focus of the Federal Insecticide, Fun-
gicide, and Rodenticide Act (FIFRA) enacted in 1972
was to provide federal control of pesticide distribu-
tion, sale, and use. EPA was given authority under
FIFRA not only to study the consequences of pesti-
cide usage but also to require users (farmers, utility
companies, and others) to register when purchasing
pesticides. Through later amendments to the law,
users were required to take exams for certification as
applicators of pesticides. All pesticides used in the
United States must be registered (licensed) by EPA.
Registration assures that pesticides will be properly
labeled and that if when used in accordance with
specifications will not cause unreasonable harm to
the environment.
Consumer Vehicle Purchases
The Federal Anti-Tampering Odometer Law pro-
hibits anyone from falsifying mileage readings in a
new or used vehicle. The Federal Used Car Law re-
quires used car dealers to post Buyers Guides on
used cars. The Federal Automobile Information Dis-
closure Act requires new car dealerships to put a
sticker on the windshield or side window of the car.
This sticker must list the base price of the car, the op-
tions added and their costs, as well as the dealer’s
cost for transportation and the number of miles per
gallon the car uses.
Dealers are not required by law to give used car
buyers a three-day right to cancel. The right to return
the car in a few days for a refund exists only if the
CONSUMER ISSUES—PRODUCT SAFETY AND CONSUMER PROTECTION
244 GALE ENCYCLOPEDIA OF EVERYDAY LAW
dealer grants this privilege to buyers. The Federal
Trade Commission’s Used Car Rule requires dealers
to post a Buyers Guide in every used vehicle they
offer for sale. This includes light-duty vans, light-duty
trucks, demonstrators, and program cars. Demon-
strators are new cars that have not been owned,
leased, or used as rentals, but have been driven by
dealer staff. Program cars are low-mileage, current-
model-year vehicles returned from short-term leases
or rentals. Buyers Guides do not have to be posted
on motorcycles and most recreational vehicles, nor
by any seller that sells less than six vehicles a year.
The Buyers Guide becomes part of the sales contract
and overrides all contrary provisions. Dealers who
offer a written warranty must complete the warranty
section of the Buyers Guide. Dealers may offer a full
or limited warranty on all or some of a vehicle’s sys-
tems or components. Most used car warranties are
limited and their coverage varies. A full or limited
warranty is not required to cover the entire vehicle.
The dealer may specify that only certain systems are
covered. Some parts or systems may be covered by
a full warranty; others by a limited warranty. The
dealer must check the appropriate box on the Buyers
Guide if a service contract is offered, except in states
where service contracts are regulated by insurance
laws.
Lemon Laws
So-called LEMON LAWS vary from state to state.
Typically, a defect covered by the Lemon Law must
be a major defect which substantially impairs the use,
value, or safety of the vehicle. Lemon laws generally
impose time or mileage limitations regarding when
the defect must be presented to the manufacturer or
dealer in order to be covered under the Lemon Law.
The manufacturer must repair the defect within a
reasonable number of repair attempts. If the manu-
facturer fails to repair the defect or defects in the ve-
hicle within a reasonable number of repair attempts,
the consumer is entitled to a repurchase or replace-
ment of the vehicle. In some states if the defect is of
such a character that there is a substantial risk of
death or serious bodily injury if the vehicle is driven,
the vehicle is presumed to be a lemon if the defect
continues to exist after even one repair attempt. If
the defect does not fall into this category, additional
repair attempts are normally required. In some
states, three repair attempts for a defect is enough
to WARRANT a buy back or replacement. Other states
require four repair attempts or more.
Federal Agencies
While many states have enacted comprehensive
products liability statutes, there is no federal prod-
ucts liability law. There are, however, a number of
federal entities responsible for maintaining and en-
forcing regulation of consumer products.
Consumer Product Safety Commission
The U.S. Consumer Product Safety Commission
(CPSC) is an independent federal regulatory agency
created to protect the public from unreasonable
risks of injuries and deaths associated with some
15,000 types of consumer products. Defective prod-
uct law, commonly known as products liability, refers
to the liability of parties along the chain of manufac-
ture of any product for damage caused by that prod-
uct. A defective product is one that causes some inju-
ry or damage to person because of some defect in
the product or its labeling or the way the product
was used. Those responsible for the defect can in-
clude the manufacturers of component parts, assem-
bling manufacturers, wholesalers, and retail stores.
The CPSC uses various means to inform the public
about potential risks. These include local and nation-
al media coverage, publication of numerous booklets
and product alerts, a web site, a telephone Hotline,
the National Injury Information Clearinghouse,
CPSC’s Public Information Center and responses to
FREEDOM OF INFORMATION ACT (FOIA) requests. For
nearly 30 years the U.S. Consumer Product Safety
Commission (CPSC) has operated a statistically valid
injury surveillance and follow-back system known as
the National Electronic Injury Surveillance System
(NEISS). The primary purpose of NEISS has been to
provide timely data on consumer product-related in-
juries occurring in the United States. NEISS injury
data are gathered from the emergency departments
of 100 hospitals selected as a probability sample of
all U.S. hospitals with emergency departments. The
system’s foundation rests on emergency department
surveillance data, but the system also has the flexibili-
ty to gather additional data at either the surveillance
or the investigation level. Surveillance data enable
CPSC analysts to make timely national estimates of
the number of injuries associated with (not necessar-
ily caused by) specific consumer products. These
data also provide EVIDENCE of the need for further
study of particular products. Subsequent follow-back
studies yield important clues to the cause and likely
prevention of injuries.
Office of Consumer Litigation
When a client agency refers a case to the Depart-
ment of Justice, the Office of Consumer LITIGATION
CONSUMER ISSUES—PRODUCT SAFETY AND CONSUMER PROTECTION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 245
(OCL) generally receives the referral and will either
retain it or ask a United States Attorney’s Office
(USAO) to handle the case. Frequently, OCL and the
USAO work jointly on these matters. Established in
1971, the OCL enforces and defends the consumer
protection programs of the Food and Drug Adminis-
tration (FDA), the Federal Trade Commission (FTC),
the Consumer Product Safety Commission (CPSC),
and the Department of Transportation’s National
Highway Traffic Safety Administration (NHTSA). OCL
has responsibility for litigation under federal con-
sumer protection laws. These include the Federal
Food, Drug, and Cosmetic Act; the odometer tam-
pering prohibitions of the Motor Vehicle Information
and Cost Savings Act; the Consumer Product Safety
Act; and a variety of laws administered by the Federal
Trade Commission, such as the Fair Debt Collection
Practices Act.
Internet Fraud Complaint Center
The mission of the Internet FRAUD Complaint
Center is to combat fraud committed over the Inter-
net. The IFCC Web site allows consumers nationwide
to report Internet fraud; enables the development of
educational programs aimed at preventing Internet
fraud; offers local, state, and federal law enforcement
agencies training in Internet fraud; and allows for the
sharing of fraud data by all law enforcement and reg-
ulatory authorities.
U. S. Food and Drug Administration
The U.S. Food and Drug Administration (FDA)
monitors food, cosmetics, medicines and medical
devices, and ensures the safety of radiation-emitting
consumer products such as microwave ovens. FDA
also oversees feed and drugs for pets and farm ani-
mals. Authorized by Congress to enforce the Federal
Food, Drug, and Cosmetic Act and several other pub-
lic health laws, the agency monitors the manufac-
ture, import, transport, storage, and sale of $1 trillion
worth of goods annually.
Center for Biologics Evaluation and
Research
A biological product subject to licensure under
the Public Health Service Act is any virus, therapeutic
serum, toxin, antitoxin, vaccine, blood, blood com-
ponent or derivative, allergenic product, or analo-
gous product, applicable to the prevention, treat-
ment, or cure of diseases or injuries to humans.
Biological products include, but are not limited to,
bacterial and viral vaccines, human blood and plasma
and their derivatives, and certain products produced
by biotechnology, such as interferons and erythrop-
oietins. The Center for Biologics Evaluation and Re-
search (CBER) is responsible for ensuring the safety
and efficacy of blood and blood products, vaccines,
allergenics, and biological therapeutics. CBER’s regu-
lation of biological products has expanded in recent
years to include a wide variety of new products such
as biotechnology products, somatic cell therapy and
gene therapy, and banked human tissues.
Federal Trade Commission
The Federal Trade Commission (FTC) works to
ensure that the nation’s markets are efficient and
free of practices which might harm consumers. To
ensure the smooth operation of our free market sys-
tem, the FTC enforces federal consumer protection
laws that prevent fraud, deception and unfair busi-
ness practices. The Commission also enforces feder-
al antitrust laws that prohibit anticompetitive merg-
ers and other business practices that restrict
competition and harm consumers.
National Highway Traffic Safety
Administration
The National Highway Traffic Safety Administra-
tion (NHTSA), within the U.S. Department of Trans-
portation, was established by the Highway Safety Act
of 1970, to carry out safety programs under the Na-
tional Traffic and Motor Vehicle Safety Act of 1966
and the Highway Safety Act of 1966. NHTSA also car-
ries out consumer programs established by the
Motor Vehicle Information and Cost Savings Act of
1972. NHTSA has consumer information on motor
vehicle safety, crash worthiness, and recalls among
other areas. OCL works with NHTSA to enforce the
provisions of the federal odometer tampering
STATUTE.
Additional Resources
Product Liability Entering the 21st Century: The U.S. Per-
spective. Moore, Michael J., Brookings Institution
Press, 2001.
Why Lawsuits Are Good for America: Disciplined Democ-
racy, Big Business, and the Common Law. Bogus, Carl,
NYU Press, 2001.
Organizations
Consumer Action
717 Market Street, Suite 310
San Francisco, CA 94103 USA
Phone: (415) 777-9635
Fax: (415) 777-5267
URL: http://www.consumer-action.org
CONSUMER ISSUES—PRODUCT SAFETY AND CONSUMER PROTECTION
246 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580 USA
Phone: (877) FTC-HELP
URL: http://www.ftc.gov
National Consumers League
1701 K Street, NW, Suite 1200
Washington, DC 20006 USA
Phone: (202) 835-3323
Fax: (202) 835-0747
URL: http://www.nclnet.org
U. S. Consumer Product Safety Commission
4330 East-West Highway
Bethesda, MD 20814-4408 USA
Phone: (301) 504-0990
Fax: (301) 504-0124
URL: http://www.cpsc.gov
CONSUMER ISSUES—PRODUCT SAFETY AND CONSUMER PROTECTION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 247
This Page Intentionally Left Blank
CONSUMER ISSUES
PURCHASES AND RETURNS
Sections Within This Essay
• Background
• Warranties
- Enforcing a Warranty
- Remedies After the Warranty Expires
- Extended Warranties
• Returning Consumer Purchases
- Mandatory Policy Posting
• Responses to Dishonest or Unfair Merchants
• The Cooling-Off Rule
- Exceptions to the Cooling-Off Rule
- Other Kinds of Contracts
• Additional Resources
Background
Just about everyone has purchased something
that looked like a bargain but proved to be an unfor-
tunate mistake. Nearly all of these poor purchasing
decisions do have a remedy. It is not necessary that
the purchase involves a great deal of money, but
there must be a genuine, serious, and material error.
In these cases, the reason is clear: the parties some-
how made a mistake as to what was being purchased.
This general principle applies any time a merchant
sells a TANGIBLE piece of property to an amateur con-
sumer, even if the dealer claims the product is of-
fered ‘‘as is.’’
What are the consumers’ options? First, they
should consider whether the merchant has any of
the following policies:
• Returns: These are policies that allow buyers
to bring the product back to the merchant
and get their money back for the product.
• Exchanges: These policies allow buyers to
bring back a product to the merchant and
exchange it for a different product.
• Refunds: This kind of policy allows buyers to
get their money back from an unsatisfactory
product; these almost always accompany re-
turn policies.
If the product itself is somehow defective, buyers
should try to discover the warranties or guarantees
that cover the product (if any). The product’s manu-
facturer rather than the seller usually offer warran-
ties, except of course in cases where the manufactur-
er is also the seller of the product.
But before buyers try to return their products or
make a claim under its WARRANTY, there are preven-
tive measures they can take to protect their rights as
consumers.
• Particularly for more expensive items, con-
sumers should insist on a signed, written, or
printed receipt describing the product and
the price that they are paying for it. The sell-
er’s business name, address, and the date of
purchase should appear on the receipt. Most
store cash register receipts contain this in-
formation.
• In some cases, it is reasonable to request the
right to submit the product to a third party
for an independent evaluation. For example,
if customers are buying a car, they can ask
the dealer to permit a mechanic look at it.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 249
They can ask for a refund from the seller if
the item is not as described. They can add
this provision to the invoice. It will contain
words similar to this: ‘‘Buyer has the right to
submit this item to EXAMINATION by a third
party within five business days and to return
to seller for a full refund if not as described.’’
Ultimately, it can be expensive, time-consuming, and
a hassle to take a merchant to court, even small
claims court. In many cases, a simple complaint letter
may do the trick.
Warranties
In most cases, any item purchased is covered by
some kind of warranty. A warranty (also known as a
guarantee) is a type of assurance from the manufac-
turer or merchant about the quality of goods or ser-
vices purchased. A warranty gives consumers re-
course if something they buy fails to live up to what
they were promised.
Warranties take two forms: implied or expressed.
A seller may also sell a product ‘‘as is,’’ meaning that
the product comes with no warrantee at all. Implied
warranties are just that; they are not written or stat-
ed, but exist nonetheless. Almost everything custom-
ers buy comes with two implied warranties:
1. The IMPLIED WARRANTY of merchantability:
The implied warranty of merchantability
warrants or guarantees that a new product
will work correctly as long as customers
use it for a reasonably expected purpose.
For used products, the warranty of mer-
chantability warrants or guarantees that
the product will work as expected, consid-
ering its age and condition.
2. The implied warranty of fitness: The im-
plied warranty applies when customers
buy a product with a specific purpose in
mind. If they explained their specific
needs to the merchant, the implied war-
ranty of fitness guarantees them that the
product will meet their need.
In contrast to implied warranties, expressed war-
ranties are usually written and included with the
product. An expressed warranty may be part of an ad-
vertisement or included on a sign or display in a
store (e.g. ‘‘genuine full lead crystal’’), or it may even
be an oral description of a product’s features. Most
typical expressed warranties contain words to the ef-
fect that ‘‘this product is warranted against defects in
materials or workmanship’’ for a certain time. Ex-
pressed warranties are not automatic. Most ex-
pressed warranties come directly from the product’s
manufacturer, although some are included in the
merchant’s sales contract.
In most states, implied warranties last indefinitely.
In a few states, however, implied warranties last only
as long as any expressed warranty that comes with
a product. In these states, if there are no expressed
warranties, the implied warranties last forever.
Enforcing a Warranty
If a product is defective, the defect will show up
immediately in most cases. When it does, customers
can request that the seller or manufacturer fix or re-
place the defective merchandise. If the seller or man-
ufacturer refuses, or if any repair work fails to fix the
defect in the product, customers may have to take
additional steps in order to resolve the problem.
If the product has not been completely paid for
(e.g. something purchased on an INSTALLMENT plan),
customers may choose to withhold payment. If they
made the purchase with their credit card, they can
call the credit company and instruct them to refuse
payment for the purchase. Customers should use
this strategy with care because not every problem or
defect is serious enough to permit them to stop pay-
ment. It may be best to try to work out a compromise
with the seller. If the seller refuses to cooperate, it
may be helpful to seek assistance or mediation ser-
vices through the local Better Business Bureau medi-
ation program.
If informal means do not work, customers may
have to resort to LITIGATION. In most states, there is
a STATUTE OF LIMITATIONS on breach of warranty law-
suits. Typically, the STATUTE tolls within four years of
when customers discovered the defect.
Remedies After the Warranty Expires
If an item fails to perform or otherwise gives cus-
tomers trouble while it is under warranty, and they
have it repaired by someone authorized by the man-
ufacturer to make repairs, the manufacturer must ex-
tend the original warranty for the time the item was
in the repair shop. This rule applies in most states.
In addition, customers can call the manufacturer and
speak to the department that handles warranties. If
the product was trouble-free during the warranty pe-
riod, the manufacturer may offer to repair for a prob-
lem for free if the problem arose after the warranty
expired. This may happen if the problem is a com-
CONSUMER ISSUES—PURCHASES AND RETURNS
250 GALE ENCYCLOPEDIA OF EVERYDAY LAW
mon one. Many manufacturers have fix-it lists —
items with defects that do not cause a safety hazard
and do not require a recall. Sometimes the manufac-
turer will repair these types of defects for free. Cus-
tomers will not know of this remedy, though, unless
they call and ask.
Extended Warranties
When customers purchase a vehicle, appliance, or
an electronic item the merchant may try to encour-
age them to buy an extended warranty (also known
as ‘‘service contracts’’). These are legitimate con-
tracts. They are intended to extend the period of
warranty coverage in the other manufacturer warran-
ties that come with the product. These contracts can
be a source of significant profit for stores, which get
to keep up to 50% of the amount customers pay for
the warranty.
Rarely will customers need to exercise their rights
under an extended warranty or service contract.
Quality vehicles, electronic equipment, and appli-
ances do not usually experience problems during the
first few years of their use. If they do experience
problems during this time, they are usually covered
by the original warranty. Besides, such merchandise
often has a useful life well beyond the length of the
extended warranty.
Returning Consumer Purchases
It is not true that consumers have a right to return
almost anything they buy in a store. Although there
are laws to protect consumers who buy defective
products or who are led to make purchases based on
misleading advertising, there is generally no rule or
law that absolutely requires merchants to offer re-
funds, exchanges or credits on the items they sell.
There are four basic principles customers should
know about returning goods they purchase in a
store:
1. Merchants can set their own policies on re-
funds and exchanges. Generally, consum-
ers are not entitled to either a refund or an
exchange.
2. Although merchants are not required to
do it, many of them will exchange non-sale
items whether customers paid for them
with cash, check, or credit.
3. Sale items are commonly exempt from
merchants’ refund and exchange policies.
4. If customers exchange a product for an-
other one that costs less, the store can re-
quire the customers to spend the differ-
ence in cost in their store.
Because it makes their stores more attractive to cus-
tomers, most retailers do offer refunds, exchanges,
or credits voluntarily, although they usually impose
a ‘‘reasonable time’’ condition for these refunds, ex-
changes, or credits. These kinds of policies have be-
come so common that people have come to expect
them. When retail sellers fail to post notices to the
contrary, consumers often wrongly assume that the
return, refund, or exchange policy exists. Therefore,
before customers make a purchase at a store, try to
determine the store’s refund policy because these
exchange privileges vary from merchant to mer-
chant. A copy of a store’s return policy should be
posted near cash registers; they are also frequently
printed on sales receipts.
Before making a retail purchase, it is a good idea
to find out the following:
• The store’s return policy
• The store’s exchange policy
• Whether the store will refund customers’
money if they return a product
• Whether sales are final (this is especially im-
portant for goods that have been marked
down)
• How the store’s normal return policy is af-
fected if customers have to sign a contract
to buy the product,
• If customers are prevented from returning a
damaged product if the product came with
a separate written warranty.
Most stores that have a refund and/or exchange poli-
cy require that the item be returned within a specific
time. These periods vary considerably from one mer-
chant to the next, but most will be in the range of
about seven to 90 days. The product usually must be
in new condition, with the original packaging, and
with the original sales receipts. There are a few retail-
ers that will accept goods returned in any condition,
at any time, and with no questions asked, but liberal
return policies like these are very rare.
Mandatory Policy Posting
In the past, some retailers did not post their poli-
cies reflecting imposed conditions or limits on ac-
cepting returned merchandise, and some did not ac-
CONSUMER ISSUES—PURCHASES AND RETURNS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 251
cept returns at all. Naturally, this policy caused a
great deal of frustration for consumers. Consequent-
ly, some states have enacted laws that require mer-
chants or retailers to post their refund policies if they
do not meet certain common expectations, such as
the following:
• The store gives a full refund, an equal ex-
change, or some combination of these
• The customer may return the merchandise
within seven days of the purchase, as long as
it is returned with proof of purchase
Basically, if a merchant does not follow a typical re-
turn policy, the merchant must post the alternate re-
turn policy so that its customers are aware of the re-
turn policy.
Responses to Dishonest or Unfair
Merchants
If a dishonest or unfair merchant has victimized
buyers, but they do not relish going to court for a
remedy, they have several alternatives. If the mer-
chant is clearly the party at fault, there are many as-
sistants whose aid buyers can enlist. Before taking ac-
tion, however, they must be sure that they are
completely truthful and accurate in their claims.
Here are some suggestions to alternative measures
to litigation:
• Try to learn whether the offending merchant
is a member of a trade organization (most
belong to at least one trade group); buyers
can complain to the organization.
• If customers paid for the item or service with
a credit card, they can refuse to pay the bill
when they get their statement from the
credit card company. When they dispute a
bill, their credit card company will usually
give them an immediate credit for the
amount in question and then reverse the
credit it gave the merchant for their pur-
chase. It will then ask for an explanation
from the merchant. In some cases, a mer-
chant will give up rather than take the time
to write letters and participate in a credit dis-
pute. If they claim they never received the
merchandise for which they were charged,
or that it was damaged or defective and they
sent it back, the credit card company may re-
fuse payment completely, regardless of what
the merchant claims.
• Customers can contact the local Better Busi-
ness Bureau or the Federal Trade Commis-
sion.
• Customers can contact their state, county, or
municipal consumer affairs department. A
telephone call followed by a letter to these
organizations can be very effective at getting
action from a recalcitrant merchant.
Most merchants just want to do business. They do
not want to lose business. They want to make money
on sales, not by cheating customers. Likewise, most
merchants will not stand to be taken advantage of,
so customers need to be sure they have their facts
straight and that the disagreement is not merely a
misunderstanding. But a merchant who refuses to
adjust the matter or even to be reasonable about it
may have an ulterior motive.
Before customers take these steps, it is a good
idea for them to inform the merchant about what he
intends to do. Sometimes, just informing the mer-
chant of his intentions to pursue the matter is
enough. But sometimes it is not, in which case the
customer should be ready to follow through on the
plan of action. Before the customer sends a com-
plaint letter to a consumer or regulatory authority,
the customer might want to consider sending a copy
of the letter to the merchant, in advance. They can
advise the merchant that the letter will be sent in five
business days if the matter is not resolved. Some-
times, the mere threat of action can bring about reso-
lution.
The Cooling-Off Rule
If customers buy a product at a store and later
change their minds, they may not be able to return
the merchandise. However, federal and state laws
provide certain protections for consumers who pur-
chase items sold outside the vendor’s usual place of
business. For example, under the Federal Trade
Commission’s (FTC’s) ‘‘Cooling Off Rule,’’ consum-
ers have until midnight of the third business day after
signing a contract to cancel the contract. This rule
applies when a consumer has entered the following
deals:
• A door-to-door contract involving a sale over
$25
• A contract for more than $25 made at a place
other than the seller’s regular place of busi-
ness. There are similar laws in every state
CONSUMER ISSUES—PURCHASES AND RETURNS
252 GALE ENCYCLOPEDIA OF EVERYDAY LAW
The fact is the FTC’s Cooling-Off Rule only applies
to purchases made at a place that is not the seller’s
permanent place of business. For example, the law
would apply to goods customers buy in their own
homes, their workplaces, in a student’s dormitory, or
at spaces temporarily rented by the seller, like hotel
or motel rooms, convention centers, fairgrounds,
and community centers.
The Cooling-Off Rule guarantees the customer’s
right to cancel a sale and to receive a full refund. This
right extends only until midnight of the third busi-
ness day after the sale. If the customer notifies the
seller of the intent to cancel the purchase within the
COOLING-OFF PERIOD, the customer is entitled to a full
refund, and any contract that the customer signed
must be rescinded without further obligation.
Under the FTC’s Cooling-Off Rule the seller must
inform customers about their cancellation rights; this
should happen at the time of the sale. Additionally,
the seller is obligated to provide customers with two
copies of a cancellation form. One the customer can
keep for his records and one to send with the re-
turned merchandise. The seller must also provide
the customer with a copy of the contract or receipt.
The contract or receipt must be in the same language
that was used in the sales presentation. For example,
if the presentation was made in Chinese, the contract
or receipt must also be in Chinese.
The contract or receipt must contain the follow-
ing information:
• Date of the sale
• The seller’s name and address
• An explanation of right to cancel the sale
Exceptions to the Cooling-Off Rule
Some types of sales cannot be canceled even if
they do occur in locations normally covered by the
rule. The cooling off rule does not cover sales that
have the following conditions:
• The goods or services are intended for com-
mercial purposes
• The goods cost less than $25
• The goods are needed for an emergency
• Part of the buyer’s request is that the seller
perform maintenance or repairs on the
buyer’s personal property
• The purchase results from negotiations
whereat the site where the seller’s goods are
regularly sold.
Many states have similar CONSUMER PROTECTION stat-
utes that contain similar exceptions to the federal
cooling-off rule.
Other Kinds of Contracts
In addition to the consumer protections outlined
above for typical consumer products, there are also
protections for other kinds of purchases. The Truth
in Lending Act is a federal law that permits individu-
als to cancel a home improvement loan, a second
MORTGAGE, or other loan when the home has been
pledged as security for the loan. This law does not
apply to first mortgages. The law allows borrowers to
cancel one of these contracts until midnight of the
third business day after signing the contract. In some
cases, the three-day period may be extended for up
to three years. The Act requires the lender to inform
borrowers about their right to cancel such contracts.
Additionally, the borrower must provide a cancella-
tion form when the borrower signs the loan docu-
ments.
Many states have enacted laws that allow consum-
ers to cancel written contracts covering the purchase
of certain goods or services within a few days of sign-
ing. Some of these include contracts for the follow-
ing:
• Dance or martial arts lessons
• Memberships in health clubs
• Dating services
• Weight loss programs
• Time share properties
• Hearing aids
State consumer protection agencies have a complete
listing of the kinds of contracts covered in their state.
Additional Resources
Consumer Rights Law (Oceana’s Legal Almanac Series.
Law for the Layperson). Jasper, Margaret C. Oceana
Publishers, 1997.
http://www.abanet.org/lawinfo/home.html ‘‘LawInfo.org’’
American Bar Association, 2002.
http://www.bbbonline.org/ ‘‘Better Business Bureau On-
line’’ Council of Better Business Bureaus, Inc., 2002.
http://www.consumer.gov/ ‘‘FirstGov for Consumers,’’
Consumer.gov, 2002.
http://www.safeshopping.org/ ‘‘Safeshopping.org’’ Ameri-
can Bar Association, 2002.
CONSUMER ISSUES—PURCHASES AND RETURNS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 253
Law and Changing Society: Administration, Human
Rights, Women and Children, Consumer Protection,
Education, Commercial Contract. Eds. Saxena, Manju,
and Harish Chandra, eds. Deep & Deep Publishers,
1999.
Understanding Consumer Rights (Essential Finance).
Parisi, Nicolette, and Marc Robinson, DK Publishers,
2001.
Your Rights as a Consumer: Legal Tips for Savvy Purchas-
ing of Goods, Services and Credit. Lieberman, Marc R.,
Career Press, 1994.
Organizations
Council of Better Business Bureaus (CBBB)
4200 Wilson Blvd., Suite 800
Arlington, VA 22203-1838 USA
Phone: (703) 276-0100
Fax: (703) 525-8277
URL: http://www.bbb.org/
Federal Trade Commission (FTC)
600 Pennsylvania Avenue, N.W.
Washington, D.C., DC 20580 USA
Phone: (877) 382-4357
URL: http://www.ftc.gov/index.html
National Association of Attorneys General
(NAAG)
750 First Street, NE, Suite 1100
Washington, DC, DC 20002 USA
Phone: (202) 326-6000
Fax: (202) 408-7014
URL: http://www.naag.org/
CONSUMER ISSUES—PURCHASES AND RETURNS
254 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CONSUMER ISSUES
RECALLS BY MANUFACTURERS
Sections Within This Essay:
• Background
• Consumer Product Recalls
• Food, Drug, and Cosmetics Recalls
• Automobile Recalls
• ‘‘Lemon Laws’’
• Additional Resources
Background
Sometimes, after products have entered the mar-
ketplace and have been sold, certain defects become
apparent. These defects can be related to safety,
such as when a braking system fails in certain auto-
mobile modes. Sometimes the problem is another
kind of defect, as when a certain model of vacuum
cleaner consistently fails to work properly. In these
cases, the manufacturer may issue a recall of these
products. Recalls are procedures taken by a manufac-
turer to remove a product from the market. Recalls
allow a manufacturer the opportunity to repair or re-
place the defective product. These are often very
costly procedures for manufacturers, but they can be
less costly than multiple law suits or the loss of good-
will among consumers.
Recalls fall into three major categories:
• Consumer products, including such com-
mon items as clothing, electronics, and toys
• Food, drugs, and cosmetics, including pre-
scription and over-the-counter drugs, sham-
poos, make-up, perfumes, and other cos-
metics
• Motor vehicles, including tires and other ve-
hicular equipment
Several federal agencies oversee the recall pro-
cess. The Consumer Product Safety Commission
(CPSC) oversees about 15,000 types of consumer
products; however, automobiles, trucks, and motor-
cycles are within the JURISDICTION of the Department
of Transportation; food, drugs (with the exception of
child resistant-packaging for these products), and
cosmetics are covered by the Food and Drug Admin-
istration (FDA)
The process of issuing a recall varies somewhat
from one class of product to another. For example,
among vehicles, state ‘‘lemon laws’’ give dissatisfied
consumers a way to REDRESS their grievances when
they have purchased a vehicle with significant de-
fects. This is not the same thing as a recall, which typ-
ically includes hundreds or thousands of vehicles in
a single recall announcement. LEMON LAWS allow ve-
hicle owners to compel a type of recall when their
vehicle are discovered to contain significant defects.
Consumer Product Recalls
Manufacturers recall many of their own products
every year when defects and/or safety risks are dis-
covered in their products. Most recalls occur for safe-
ty-related reasons. Sometimes, a manufacturer will
voluntarily recall products, and sometimes they are
compelled to issue recalls. The CPSC announces re-
calls of products that present risks to consumers be-
cause the products are either defective or violate
mandatory safety standards issued by CPSC.
When owners discover that a product that they
own is recalled they should stop using it, but they
GALE ENCYCLOPEDIA OF EVERYDAY LAW 255
should follow the specific guidance in CPSC’s recall
announcement on that product. In most cases there
is no concluding date to a product recall. Even if it
has been more than a year since CPSC issued a recall
notice, product owners should read and follow the
instructions in the recall notice.
Owners may or may not get a refund of their re-
called product. There is no single remedy for all re-
called products. The remedies for recalled products
are specific to each product. Each recall announce-
ment details the remedy for each recalled product.
Recalls are as specific as possible. They frequently
apply exclusively to products manufactured during
specific time periods; these time periods can be
lengthy but are often quite brief. For example, CPSC
may announce a recall on toy X, manufactured be-
tween June 17, 2000 and August 23, 2000.
Food, Drug, and Cosmetics Recalls
The FDA is charged with overseeing the safety and
effectiveness of food, drugs, and many cosmetics
products. As with other consumer goods and motor
vehicles, recalls may be necessary when it is deter-
mined that a consumable product may pose consid-
erable risk of harm to individuals. In terms of food,
drugs, or cosmetics, recalls may proceed under a
manufacturer’s own initiative, by a FDA request, or
by a FDA order. There are three classes of recalls in
descending order of urgency:
1. Class I recalls are cases in which there is a
reasonable chance that the use of or expo-
sure to a product will cause serious ad-
verse health consequences or even death.
2. Class II recalls are cases in which exposure
to a product may cause temporary or re-
versible adverse health consequences, or
where the odds of serious adverse health
consequences are not great.
3. Class III recalls are situations in which use
of or exposure to a product is unlikely to
cause adverse health consequences.
Recalls are mandatory procedures for the manu-
facture. Market withdrawals, on the other hand, are
voluntary on the part of manufacturers. They occur
when a product has a minor violation that would not
otherwise be subject to FDA legal action. In these
cases, a firm will remove its product from the market
or otherwise correct the violation. For example, a
product will be removed from the market if there is
EVIDENCE that its packaging has been compromised.
This can happen without any manufacturing or distri-
bution problems. In situations involving a medical
device that presents an unreasonable risk of substan-
tial harm, a medical device safety alert can be issued.
These are primarily intended to inform potential
users of the device of potential hazards. In some
cases, these situations also are considered recalls.
Automobile Recalls
The Department of Transportation’s National
Highway Traffic Safety Administration (NHTSA) is
the federal agency authorized to issue vehicle safety
standards and to require manufacturers to recall ve-
hicles with safety-related defects (49 USC §301).
Since the NHTSA’s inception, more than 215 million
vehicles of all types and some 24 million tires have
been recalled to correct safety defects. The NHTSA
with the assistance of federal courts have influenced
or ordered many of these recalls. Others have been
initiated voluntarily by vehicle manufacturers.
NHTSA has limited authority; it may not compel re-
calls for defects that are not safety-related.
If a manufacturer identifies a safety defect, the
manufacturer notifies NHTSA, as well as vehicle or
equipment owners, dealers, and distributors. A safety
defect is one which poses an unreasonable risk to
safety and is common to a group of vehicles of the
same manufacture or design. The manufacturer must
then fix the problem. There should be no charge to
vehicle owners. NHTSA assesses the adequacy of the
manufacturers’ corrective action and makes sure
manufacturers comply with all STATUTORY require-
ments. The NHTSA will seek a recall in the following
cases:
1. A motor vehicle or item of motor vehicle
equipment does not comply with a Federal
Motor Vehicle Safety Standard
2. There is a safety-related defect in the vehi-
cle or equipment
If owners think they have an auto safety problem,
it is a good idea to report it to the NHTSA. The com-
bined effect of a number of similar complaints can
trigger an investigation into the alleged safety defect
and ultimately lead to a recall. When they contact the
NHTSA, they will be asked to provide certain infor-
mation necessary for the NHTSA staff to evaluate the
problem. They will enter the owner’s information
into their database, and print a record of the report
CONSUMER ISSUES—RECALLS BY MANUFACTURERS
256 GALE ENCYCLOPEDIA OF EVERYDAY LAW
for evaluation and for use in future investigative pro-
cedures. The information provided to the NHTSA
will be organized according to vehicle make, model,
model year, manufacturer, and the affected part, as-
sembly or system. NHTSA staff monitor such com-
plaints to determine whether a pattern emerges that
may indicate potential safety-related problems on
any specific vehicle, tires, or equipment.
The NHTSA Office of Defects Investigation (ODI)
is responsible for investigating potential safety de-
fects. Their investigative process consists of four
parts:
• Screening. ODI determines whether to open
an investigation. During this phase, the ODI
will conduct a preliminary review of con-
sumer complaints and other information re-
lated to the alleged defect.
• Petition Analysis. The ODI processes peti-
tions for defect investigations during peti-
tion analysis.
• Investigation. The ODI conducts an investi-
gation of the alleged defect(s).
• Recall Management. Assuming the investiga-
tion leads to a recall, the ODI will assess the
overall adequacy of safety recalls and the
safety-relatedness of service bulletins.
In most cases, manufacturers make voluntary re-
calls to remedy safety defects on their new vehicles
without NHTSA’s involvement. Manufacturers often
discover safety defects through their own testing
procedures. Federal law requires manufacturers to
report the findings that safety defects exist in their
product, and they must take appropriate action to fix
the defects. But, as some vehicles age, certain design
and performance problems may occur. Vehicle own-
ers frequently report these kinds of problems to
NHTSA. These consumer complaints can form the
basis for an NHTSA’s defect investigation, which can
lead to safety recalls.
After the NHTSA determines that there is indeed
a safety defect or other noncompliance, manufactur-
ers are given a reasonable time to notify, by first-class
mail, all registered owners and purchasers of the af-
fected vehicles. State motor vehicle offices provide
the names of vehicle owners. Manufacturers must in-
form vehicle owners of the safety problem and pro-
vide an evaluation of its risk to the vehicle’s safety.
Their letter must also instruct consumers on the fol-
lowing details:
• How to get the problem corrected
• That corrections are to be made at no charge
• When the remedy will be available
• How long the remedy will take to perform
• Who to contact if there are difficulties in ob-
taining the free recall work
Once NHTSA has made a defect determination,
the manufacturer has three general options for cor-
recting the defect: repair, replace, or refund the
product. Remember, these are the manufacturer’s
options—not the consumers’. The circumstances of
the defect and the overall cost of remedying the
problem will determine the manufacturer’s course of
action. In the case of tires and equipment, the manu-
facturer can either repair or replace, but need not re-
fund the tires or equipment.
Manufacturers are required only to correct at no
charge those defects that exist at the time of the re-
call. The recall laws make do not apply to vehicle
owners who experienced a problem before a recall
is announced, even if the vehicle owner had repairs
made at their own expense. Additionally, manufac-
turers are not liable for damages caused by the de-
fect. If owners have a defective tire, it blows out lead-
ing to brake damage, the manufacturer will not be
required to pay for the brake damage. Because of
this, consumers affected by a recall are wise to have
recall work done as soon as possible after a recall no-
tice has been announced. There are a few exceptions
to this rule, however. In some cases where consum-
ers have been able to present sound documentation
of damage incurred as a result of a defect, manufac-
turers have voluntarily agreed to cover the costs of
the related damage. This helps the manufacture to
retain or repair damage to its public image.
There are a few restrictions on consumers’ rights
to take advantage of recalls. For example, there is a
limitation regarding the age of the vehicle. In order
to be eligible for free repairs, refund, or replacement,
the vehicle must be less than 8 years old on the date
the defect. The age of the vehicle is based on the
date it was sold to the first purchaser. Even so, con-
sumers should realize that while manufacturers may
not be compelled to remedy safety defects in older
cars, a safety problem may exist nonetheless.
Sometimes a manufacturer will challenge the
NHTSA’s recall in court. In these cases, the manufac-
turer is not required to perform any repairs while the
case is pending. If owners take their vehicle in for re-
pairs after NHTSA’s decision to order a recall, but be-
CONSUMER ISSUES—RECALLS BY MANUFACTURERS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 257
fore the case is finally decided and the court finds in
favor of the manufacturer, the law will not require
the manufacturer to reimburse them for that repair
work. But save all the receipts from the repairs. If the
court rules against the manufacturer, owners may be
entitled to reimbursement.
If there is a recall on a vehicle, consumers are enti-
tled to repair or replacement of the defective part
without charge and the repair or replacement must
occur within a reasonable time. After a defect has
been discovered and a recall ordered, manufacturers
are given time to identify vehicle owners who should
be included in the recall. They are given time to do
the following:
• Develop procedures to remedy the defect
• Instruct dealers or distributors about how to
repair the defect
• Provide the parts necessary for repair or re-
placement
• Communicate with consumers about how
the recall will be conducted
Because of the many time-consuming steps in a
recall, manufacturers are given a reasonable time
(usually 60 days) to remedy the defect. This time is
calculated from the date that replacement parts are
available. The manufacturer in its recall notification
letter should specify this information. The law does
not require a dealer to remedy a defect in a vehicle
brought in before that date. In most cases auto deal-
ers will honor a recall on vehicles that they sell and
will remedy defects at no charge, regardless of where
the vehicle or item of equipment was purchased.
‘‘Lemon Laws’’
Every state has a ‘‘Lemon Law.’’ These laws pro-
tect people who buy new vehicles against defective
vehicles, commonly referred to as ‘‘lemons.’’ Lemon
Laws entitle aggrieved consumers to a replacement
vehicle, or a full refund, as long as the vehicle meets
certain qualifications set by state law. Lemon laws
usually apply to purchases or leases of new cars,
trucks, motorcycles or motor homes, even if they
register the vehicle in another state. Additionally,
lemon laws cover ‘‘demonstrator’’ or ‘‘executive’’ ve-
hicles that are less than a year old and still under
their original warranties. Generally, the laws do not
apply to purchases of mopeds or trailers.
If owners think they have purchased a ‘‘lemon,’’
they should write the manufacturer and request a re-
placement vehicle or a refund. Assuming their re-
quest is granted, they will not get to keep the defec-
tive vehicle. If their defective vehicle is replaced, the
manufacturer should refund their repair costs and
charge them nothing for mileage. If they end up with
a refund instead of a replacement vehicle, their re-
fund should include:
• The entire purchase price
• Any SALES TAX paid on the vehicle
• Finance charges
• The cost of repairs to the defective vehicle
• A DEDUCTION for mileage
If the manufacturer refuses to give a refund or
provide a replacement of a defective vehicle, owners
may be able to get relief by submitting their com-
plaint to an ARBITRATION forum. This is often quicker
and less expensive than LITIGATION. In some states,
if the manufacturer of the vehicle has a state certified
arbitration program, the owner must use it before
they can sue the manufacturer in court for a refund
or replacement vehicle.
In some cases, a court may need to decide if a ve-
hicle is a lemon and what remedy to provide. If the
owner sues the manufacturer and they win, some ju-
risdictions allow damages worth double the vehicle
purchase price and repair costs plus other costs and
attorney fees.
Lemon laws vary from state to state. Basically, a
mechanical defect must be one in which the vehicle
substantially impairs the use, value, or safety of a ve-
hicle before a lemon law will offer a remedy for a con-
sumer. Lemon laws usually have time or mileage lim-
its. A defect must be presented to the manufacturer
or authorized dealer within these limits in order to
be covered under the Lemon Law.
Once notified of a problem with a vehicle, the
manufacturer must be allowed to repair the defect
within a reasonable number of repair attempts. If the
manufacturer cannot repair the defect in the vehicle
within a reasonable number of repair attempts, the
lemon law will entitle the vehicle owner to a refund
or replacement of the vehicle. Just how many repair
attempts constitutes a ‘‘reasonable number’’ will vary
from state-to-state. The nature of the defect will also
bear on the number of repair attempts. If the defect
is so serious that there is potential for death or seri-
ous bodily injury if the vehicle is driven, the vehicle
will be presumed to be a lemon if the defect contin-
CONSUMER ISSUES—RECALLS BY MANUFACTURERS
258 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ues to exist after just one repair attempt. If the defect
is not so serious or potentially dangerous, then the
manufacturer will be permitted additional repair at-
tempts to correct the defect.
Owners will need DOCUMENTARY EVIDENCE to dem-
onstrate that their car is a lemon. Make sure to save
all records of any repairs done. The receipts should
include dates of service and descriptions of the exact
repairs made. This is most critical when the owner’s
car is repaired under the auspices of someone other
than the dealership where they bought the car. In ad-
dition to repair records, it is a good idea to retain the
purchase contract and any written warranties. It is
also a good idea to note on a calendar all of the days
the vehicle is at a dealership or other shop for
WARRANTY repairs. If their vehicle is operable, it is
permissible to drive it while the appropriate authori-
ties determine whether it is a lemon. If the vehicle
is indeed a lemon, the dealership is often allowed to
deduct a certain amount for mileage from the re-
fund. This applies to both new and used cars.
In many states owners will be covered under a
lemon law even if they purchased a used car. If own-
ers have recently purchased a used car and it fails a
safety inspection they may be entitled to cancel the
purchase and receive a refund. Vehicle safety inspec-
tions are mandatory in most states. Owners may be
able to receive a refund if their used car fails a safety
inspection within a certain period of time from the
purchase of the car, and if the repairs exceed a stated
percentage of the purchase price of the car (which
vary from state to state). Some states define their
lemon laws for used cars the same way they do for
new cars, so that even if the car passes inspection,
if it has met the other qualifications, owners can still
cancel the sale.
Additional Resources
Consumer Product Safety. Howells, Geraint G., Dart-
mouth Publishing Co., 1999.
Product Warnings, Defects, and Hazards, Second Edi-
tion. O’Reilly, James T., Aspen Publishers, Inc., 1998.
Safer by Design: A Guide to the Management and Law of
Designing for Product Safety, Second Edition. Abbott,
Howard and Mark Tyler, Gower Publishing Co., 1997.
Safety Recall Compendium: A Guide for the Reporting,
Notification, and Remedy of Motor Vehicle and Motor
Vehicle Equipment in Accordance with Title 49 of the
United States Code, Chapter 301 and Supporting Fed-
eral Regulations. NHTSA, 2001.
Organizations
Consumer Reports
101 Truman Avenue
Yonkers, NY 10703 USA
URL: http://www.consumerreports.org/Recalls/
Federal Consumer Information Center
(FCIC)
1800 F Street, NW, Room G-142, (XC)
Washington, DC 20405 USA
Phone: (800) 326-2996
URL: http://www.pueblo.gsa.gov/
U. S. Consumer Product Safety Commission
(CPSC)
4330 East-West Highway
Bethesda, MD 20814-4408 USA
Phone: (301) 504-0990
Fax: (301) 504-0124
E-Mail: info@cpsc.gov
URL: http://www.cpsc.gov/
U. S. Food and Drug Administration (FDA)
5600 Fishers Lane
Rockville, MD 20857-0001 USA
Phone: (888) 463-6332
URL: http://www.fda.gov
CONSUMER ISSUES—RECALLS BY MANUFACTURERS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 259
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CONSUMER ISSUES
WARRANTIES
Sections within this essay:
• Background
• Types of Warranties
- Implied Warranties
- Express Warranties
- Used and ‘‘As Is’’ Goods
- Extended Warranties
• Magnuson-Moss Warranty Act
• Lemon Laws
• Additional Resources
Background
In simplest terms, a WARRANTY (also called a guar-
antee) is an agreement between a seller and a buyer
to ensure that a product will work properly. While
the concept is simple, the actual application of a war-
ranty can be quite complex. There is no law requiring
a company to offer a written warranty on a product
it manufactures or sells. The absence of a written
warranty, however, does not mean that a product is
not warranted to perform according to expectation.
When a written warranty does exist, it binds the com-
pany under federal law into assuming responsibility
in the event that a product malfunctions.
Warranties promise that a product will perform
properly; when a product fails to perform, it will be
replaced or repaired, or the consumer will be given
a refund or a credit toward another product. The re-
tail pioneer John Wanamaker, who introduced the
concept of the ‘‘department store’’ in Philadelphia in
1876, is also credited with introducing the money-
back guarantee. Wanamaker was a progressive busi-
nessman who was among the first to offer benefits
such as paid vacations to his employees. He was also
a deeply ethical man who believed that his custom-
ers should be satisfied with their purchases. The
money-back guarantee earned the trust and the loy-
alty of Wanamaker’s customers.
Trust and loyalty represent sound business prac-
tice for most companies. In fact, it is not uncommon
for companies to use warranties as a selling point; by
offering a better warranty than their competitors,
they are saying in effect that they believe more
strongly in the quality of their products.
Warranty problems occur when the company has
misstated its policy, or when the language included
in the warranty is confusing. The concept of the ‘‘life-
time warranty’’ provides a good illustration of how
this sort of confusion can develop. The Federal
Trade Commission (FTC) offers the example of an
automobile muffler with a so-called ‘‘lifetime’’ guar-
antee. ‘‘Lifetime’’ can mean the life of the automobile
in which the new muffler was installed or it can mean
the duration of the buyer’s ownership of the car, or
it can mean the buyer’s actual lifetime. It is an unfor-
tunate fact that some companies are unscrupulous
and try to renege on their warranty agreements. But
as the seemingly straightforward example of the muf-
fler shows, sometimes the problem is misinterpreta-
tion. That said, it is the seller’s responsibility to make
sure that the warranty’s language and intent is clear.
Types of Warranties
Under the law, there are two types of warranties,
implied and express. Implied warranties exist under
GALE ENCYCLOPEDIA OF EVERYDAY LAW 261
state law, as outlined in the UNIFORM COMMERCIAL
CODE (UCC). The UCC, which covers all 50 States
and the District of Columbia, is a means of consoli-
dating laws regarding commerce as a means of
streamlining interstate legal issues. This allows each
state to adopt the same definitions of, in this case,
implied warranties.
Implied Warranties
Implied warranties are exactly what the term says
they are: unspoken and unwritten promises made by
a seller to a buyer that the product being sold works.
The concept that encompasses the IMPLIED
WARRANTY comes from COMMON LAW, specifically, the
principle of ‘‘fair value for money spent.’’ Actually,
there are two types of implied warranties, both out-
lined under Section 2 of the UCC.
The implied warranty of merchantability is sim-
ply the promise that the product sold is in good
working order and will do what it is supposed to do.
A vacuum cleaner is expected to pick up dirt and
dust from carpets and floors. A refrigerator is expect-
ed to keep food cold. A toaster is expected to toast
bread. If the consumer buys a product and the prod-
uct does not work, then this constitutes a breach of
the implied warranty. The seller is required to reme-
dy the problem, whether by repairing or replacing
the product. (It should be noted that the section of
the UCC covering this type of implied warranty, Sec-
tion 2-314, is law in every state except Louisiana.)
The implied warranty of fitness for a particular
purpose is the promise that the seller’s advice on
how to use the product will be correct. For example,
it a consumer asks an appliance dealer whether a
particular air conditioner can cool a 600 square-foot
room and the dealer says yes, that dealer has effec-
tively created a warranty of fitness. If the air condi-
tioner can only cool a 400 square-foot room effective-
ly, the dealer has breached the warranty. The idea
behind this is that the dealer is expected to know
which product will be best for which use.
Express Warranties
An express warranty is an explicit offer made vol-
untarily by the seller that a product will perform ac-
cording to particular expectations. The typical ex-
press warranty offers specific remedies in the event
that the product is defective. Express warranties can
be oral or written. Written warranties are covered
under the federal Magnuson-Moss Act, which is ex-
plained in detail later.
If a seller offers an express warranty, the product
in question is still covered under implied warranty.
The length of a warranty may be specified, but if
it is not the general rule is that consumers have four
years from the date of purchase to enforce a warranty
claim. This does not mean that the product must last
four years. Rather, it means that if there was a defect
in the product at the time of purchase that manifests
itself later, the consumer is entitled to some sort of
remedy.
Used and ‘‘As Is’’ Goods
Used goods are covered under implied warranties
if the seller is a merchant who is in the business of
selling similar products. A private individual who
chooses to sell a toaster at a flea market is not expect-
ed to take responsibility for the product’s perfor-
mance.
In most states, goods can be sold ‘‘as is.’’ These
goods do not require the seller to offer even an im-
plied warranty. What the seller is required to do for
these products is make clear to consumers that the
product is being sold in less than prime condition
and that the consumer assumes all responsibility for
any faults and flaws. The following states do not
allow as-is sales: Alabama, Connecticut, Kansas,
Maine, Maryland, Massachusetts, Minnesota, Missis-
sippi, New Hampshire, Vermont, Washington, West
Virginia, and the District of Columbia.
If a product is sold AS IS and it turns out to have
a defect that results in PERSONAL INJURY, the seller is
liable even in the absence of any warranty.
Extended Warranties
Anyone who has purchased appliances, stereos,
computers, or similar items knows that most stores
will try to sell an ‘‘extended warranty’’ along with the
standard one. These warranties, also known as ser-
vice contracts, are often unnecessary; often, they du-
plicate current warranty coverage. The reason mer-
chants are so eager to sell service contracts is that
they make a handsome profit off those agreements.
Service contracts are not illegal and in some cases
they may be useful, but it is a good idea to read the
existing warranty before spending unnecessary
money on redundant coverage.
An important point that consumers should know
is that if they do wish to purchase a service contract,
they are allowed by law to do so up until 30 days
from the regular warranty’s expiration date. Stores
that claim a ‘‘now or never’’ policy are being decep-
tive.
CONSUMER ISSUES—WARRANTIES
262 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Magnuson-Moss Warranty Act
In 1975, Congress passed the MAGNUSON-MOSS
WARRANTY ACT as a means of providing comprehen-
sive information to consumers about their rights
under product warranties. It is important to note
once again that companies are not required to pro-
vide written warranties on their products. If they do,
however, they are subject to the regulations spelled
out under Magnuson-Moss.
Oral warranties are not covered by Magnuson-
Moss, nor are warranties on services or commercial
products. Only written warranties on consumer
goods are covered. The company issuing the warran-
ty (the warrantor) or the seller must meet three basic
requirements under the Act:
• The warranty must be designated as either
full or limited
• The warranty must be written in a single
document that is clearly written and easy to
understand
• The warranty must be readily available for in-
spection where the product covered is being
sold
Anyone who offers a written warranty is prohibit-
ed from disclaiming or modifying implied warranties.
In other words, consumers are protected under the
implied warranty of merchantability no matter how
broad or narrow the scope of the written warranty.
The only exception is that the company can restrict
the duration of an implied warranty to match that
stated in a written limited warranty. If a company of-
fers a three-year limited warranty on a product, it is
permissible to limit the implied warranty to three
years as well.
Magnuson-Moss prohibits companies from in-
cluding tie-in sales provisions in its warranties. In
other words, the company cannot state that owners
of product X must use only product X accessories or
have the product serviced at specific locations. How-
ever, companies can void a warranty if the consumer
has it serviced or repaired inappropriately or incor-
rectly. Moreover, if the company can prove to the
FTC that its products must be serviced or maintained
through tie-in services, the FTC may waive this re-
quirement.
No deceptive or misleading terms are permitted
in a written warranty under Magnuson- Moss. A com-
mon example is a warranty covering moving parts in
an item that has no moving parts. Moreover, the
company cannot claim to offer services that it either
cannot or will not provide.
Magnuson-Moss makes breach of warranty a viola-
tion of federal law and allows plaintiffs to recover
court costs and reasonable attorney’s fees. In gener-
al, most warranty-related lawsuits are brought in
state courts, but CLASS ACTION suits can be brought
in federal court. This is not to say that Magnuson-
Moss has LITIGATION as its goal. Rather, the goal is to
make companies think carefully before they breach
a warranty.
Under Magnuson-Moss, companies can include a
provision in their warranties that requires customers
to attempt to resolve warranty disputes through in-
formal means (informal in the sense that they do not
require the same rules of EVIDENCE and procedure as
found in a courtroom). These informal means are
known as dispute resolution mechanisms. For a
company to be able to require this option, it has to
meet certain requirements as stated in the FTC’s
Rule on Informal Dispute Settlement Procedures.
The ‘‘rule’’ is actually a set of guidelines that requires
the company to provide a means of resolution that
is adequately funded and staffed to resolve disputes
quickly, free of charge to customers, able to gather
all necessary facts and make decisions independent-
ly, and audited annually to ensure compliance. This
function can be performed by a third party (such as
the Better Business Bureau) or by employees specifi-
cally on staff to handle warranty disputes objectively.
Among the means of settling the dispute can be
CONCILIATION, MEDIATION, and ARBITRATION; if either
party is still dissatisfied, the matter can still be
brought to court.
While having an informal dispute procedure in
place eliminates the necessity of going to court, it is
clearly still enough of a burden on a company that
it makes more sense to offer clear-cut warranties and
honor them.
Lemon Laws
The automobile industry has spawned its own set
of laws to help consumers deal with faulty or defec-
tive cars. The image of the automobile salesperson
as a deal-makers of questionable integrity may be
nothing more than a stereotype, but cars represent
the largest ‘‘consumer goods’’ purchase most people
make, and buyers want to know they are getting a
good deal on a good product.
CONSUMER ISSUES—WARRANTIES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 263
Cost is only one factor. A serious defect in an auto-
mobile is more than just an inconvenience for peo-
ple who need a dependable car. More unnerving is
the fact that a serious defect in an automobile can
cause it to malfunction on the road, which could re-
sult in injury or death.
Automobiles are covered under federal laws such
as Magnuson-Moss, but each state also has what are
known as lemon laws. Although each state’s laws dif-
fer (for example, some states cover motorcycles and
used cars while others do not), the basics are the
same:
• Under state LEMON LAWS, a car is a ‘‘lemon’’
if it displays defects that significantly affect
its use or safety, and if repeated attempts to
repair the defects have been unsuccessful.
• For serious defects, the manufacturer may
be given one attempt to repair the problem;
for less serious problems the manufacturer
may be allowed two or more attempts.
• The defect must be evident within a specific
time frame (usually 12 to 24 months) or
number of miles (usually 12,000 to 24,000).
• The car has to have spent a certain number
of days in the shop (usually 30 days) within
the first year.
Depending on the scope of the defects, the con-
sumer will be entitled to either a refund or a replace-
ment. For car manufacturers, this is not an inexpen-
sive proposition, especially if it turns out that a
particular model seems to have more than its share
of performance problems. From the consumer’s
standpoint, people often get attached to their cars to
the point that they may be reluctant to part with their
lemon. When one considers the costs of being with-
out an automobile for lengthy periods and the po-
tential danger of driving a car with defects, it is clear
that lemon laws serve a valuable function for both
manufacturers and consumers.
Two useful websites that provide general informa-
tion about lemon laws in plain English, and that offer
links to state and federal agencies are the Autopedia
lemon law site (http://www.autopedia.com/html/
HotLinks_Lemon.html) and the Cars.com lemon law
site (http://cartalk.cars.com/Got-A-Car/Lemon/).
Additional Resources
A Businessperson’s Guide to Federal Warranty Law. U. S.
Federal Trade Commission, 1987.
The Consumer Movement: Guardians of the Marketplace.
Mayer, Robert N., Twayne Publishers, 1989.
Consumer Reports Law Book. Haas, Carol, and the editors
of Consumer Reports Books, Consumer Reports, 1994.
Extraordinary Guarantees: A New Way to Build Quality
Throughout Your Company and Ensure Satisfaction
for Your Customers. L. Hart, Christopher W. L., AMA-
COM, 1993.
Return to Sender: Getting A Refund or Replacement for
Your Lemon Car. Barron, Nancy, National Consumer
Law Center, 2000.
Understanding Consumer Rights. Parisi, Nicolette, Dorl-
ing Kindersley, 2000.
Organizations
Center for Auto Safety
1825 Connecticut Avenue, NW, Suite 330
Washington, DC 20009 USA
Phone: (202) 328-7700
URL: http://www.autosafety.org
Primary Contact: Clarence Ditlow, Director
Consumers Union
101 Truman Avenue
Yonkers, NY 10703 USA
Phone: (914) 378-2000
Fax: (914) 378-2928
URL: http://www.consumersunion.org
Primary Contact: Jim Guest, President
Federal Trade Commission (FTC)
600 Pennsylvania Avenue, NW
Washington, DC 20580 USA
Phone: (202) 326-2222
URL: http://www.ftc.gov
Primary Contact: Timothy J. Muris, Chairman
CONSUMER ISSUES—WARRANTIES
264 GALE ENCYCLOPEDIA OF EVERYDAY LAW
COURTS AND PROCEDURES
CIVIL PROCEDURE
Sections within this essay:
• Background
• Authority
• Jurisdiction
- Subject Matter Jurisdiction
- Jurisdiction over the Parties
- Jurisdictional Amounts
• Venue
• Federal Rules of Civil Procedure (FRCP)
- Parties
- Commencement of an Action
- Pleadings
- Pre-trial Procedure
- Trial
- Judgment
- Appeal
• State Rules of Civil Procedure
• Additional Resources
Background
CIVIL PROCEDURE refers to that body of law (usually
in the form of collective and published rules) that
concerns itself with the methods, procedures, and
practices used in civil proceedings. Civil proceedings
are distinguished from criminal or administrative
proceedings, which are governed by their own re-
spective rules of procedure. Most (but not all) civil
proceedings involve ‘‘litigation’’ or lawsuits between
private parties or entities (such as business
CORPORATIONS) and the focus herein generally relates
to key procedures in the LITIGATION process.
PROCEDURAL LAW is intended to safeguard those
vested rights in life, liberty, and property that are
guaranteed by the U.S. Constitution. The Fifth
Amendment to the Constitution provides that ‘‘No
person shall be . . . deprived of life, liberty, or proper-
ty without DUE PROCESS OF LAW [the ‘‘due process
clause’’]; nor shall private property be taken for pub-
lic use, without just compensation.’’ The Fourteenth
Amendment to the Constitution makes those provi-
sions applicable to the states.
In almost every civil lawsuit, there will be a prevail-
ing (winning) party and a defeated (losing) party.
Judgment against the losing party (whether it is the
person who filed the claim or the person against
whom the claim was made) generally means he or
she will be adversely affected. The constitutional
guarantee of ‘‘due process of law’’ ensures that per-
sons whose rights may be adversely affected by litiga-
tion have the opportunity for their ‘‘day in court,’’—
to be heard and to present proof(s) in support of
their claim or defense. Accordingly, before any judg-
ment can be made for or against a party, certain pro-
cedural safeguards WARRANT that a just and FAIR
HEARING on the matter has been conducted and that
all parties whose interests may be affected by the
controversy have been notified of their right to be
heard.
Civil procedure, then, helps provide the ‘‘struc-
ture’’ needed to guarantee a fair and just determina-
tion of the controversy, while also serving to move
the matter through the legal system in an orderly and
consistent manner. It governs such actions as the
way in which service of process is made upon a
DEFENDANT, the number of days and manner in which
parties may ‘‘discover’’ one another’s EVIDENCE, and
GALE ENCYCLOPEDIA OF EVERYDAY LAW 265
the manner in which parties may present their con-
troversies or objections to the court. Additional rules
of procedure may have more simple purposes, such
as uniformity or judicial economy. In any event,
courts have the power and authority of law (in the
absence of abuse of discretion) to dismiss lawsuits
and/or deny remedies if procedural rules are not fol-
lowed.
Authority
Article III of the U.S. Constitution expressly
creates a federal court system, and Section 2 of that
Article further declares that JURISDICTION (See Juris-
diction, below) of the U.S. Supreme Court and courts
within the federal system shall be subject to ‘‘such
Regulations as the Congress shall make.’’ Those reg-
ulations are contained in Section 1251 of Title 28 of
the United States Code (U.S.C. or U.S.C.A.—
designating the annotated version). Section 2072 of
28 U.S.C. 131 (The Rules Enabling Act) authorizes
the Supreme Court to ‘‘prescribe general rules of
practice and procedure and rules of evidence for
cases in the U.S. district courts (including proceed-
ings before magistrates thereof) and courts of ap-
peals.’’ Similarly, state constitutions and statutes em-
power the states’ highest courts (usually) to regulate
civil procedures in state courts.
Jurisdiction
An important and early determination to be made
in each pending action is whether to file a civil law-
suit in the ‘‘forum’’ of a federal court or state court.
A court’s general authority to hear and/or ‘‘adjudi-
cate’’ a legal matter is referred to as its ‘‘jurisdiction.’’
In the United States, jurisdiction is granted to a court
or court system by STATUTE or by constitution. A legal
decision made by a court that does not have proper
jurisdiction is deemed void and non-binding upon
the litigants.
Jurisdiction may be referred to as ‘‘exclusive,’’
‘‘original,’’ concurrent, general, or limited. Article III,
Section 2 of the U.S. Constitution limits the types of
cases that federal courts may hear. Generally speak-
ing, federal courts may hear only those cases involv-
ing federal laws, federal or sovereign parties (includ-
ing states), or disputes between citizens from
different states. Thus, federal courts have ‘‘limited’’
jurisdiction, which may be ‘‘exclusive’’ over a matter
or party (to the exclusion of any other forum), or
may be ‘‘concurrent’’ and shared with state courts.
In matters where both federal and state courts have
concurrent jurisdiction, state courts may hear federal
law claims (e.g., violations of CIVIL RIGHTS), and par-
ties bringing suit may choose the forum. However,
when a plaintiff raises both state and federal claims
in a state court, the defendant may be able to ‘‘re-
move’’ the case to a federal court.
Subject Matter Jurisdiction
A court is competent to hear and decide only
those cases whose subject matter fits within the
court’s scope of authority. Courts of ‘‘limited’’ juris-
diction may be competent to hear only certain mat-
ters, such as those involving PROBATE or juvenile
cases. Even courts of broad or general jurisdiction
may have certain matters removed from their juris-
diction (by statute or state constitution), such as
DIVORCE or CUSTODY matters, to be handled by other
courts. If the controversy involves a parcel of real es-
tate instead of a person, the property must be locat-
ed within the territorial jurisdiction of the court.
Jurisdiction over the Parties
A court must have jurisdiction not only over the
subject matter of the controversy, but also the par-
ties to the litigation. There is seldom a question of
jurisdiction over the plaintiff, since by bringing the
action into the court, the plaintiff consents to the
court’s jurisdiction over him or her. But the plaintiff
must also show that the court has jurisdiction over
the defendant. In general, this may be established by
the defendant’s consent, by the defendant’s general
appearance in court, or by proving a defendant’s do-
micile within the geographic area of the court’s juris-
diction (in combination with serving process upon
the defendant). A fourth way of acquiring jurisdiction
over a defendant relies on ‘‘long-arm statutes,’’
which permit a court to ‘‘reach’’ absent defendants
or defendants residing in other states by establishing
their relationship with the state in which the action
was filed (the ‘‘forum’’ state). It may be that they
committed the wrongful act within the forum state
or transact business within that state or own proper-
ty in that state, etc.
Jurisdictional Amounts
Finally, many courts limit their jurisdiction to
cases in which the amount in controversy exceeds a
certain minimum amount. For example, no com-
plaint may be filed in a federal court unless the
amount in controversy exceeds the sum or value of
$75,000. Many state circuit courts have minimum ‘‘ju-
risdictional amounts’’ of $10,000, $15,000, or
$25,000. Conversely, many local or district courts
COURTS AND PROCEDURES—CIVIL PROCEDURE
266 GALE ENCYCLOPEDIA OF EVERYDAY LAW
within state court systems have maximum jurisdic-
tional amounts; if the amount in controversy exceeds
the jurisdictional maximum, either the case must be
re-filed in the next level court or the complaining
party must waive his or her right to any judgment
that exceeds the maximum.
Venue
Venue refers to the geographic location of the
court in which to bring an action. Most court systems
(federal and state) have statutes that dictate the par-
ticular district, county or city in which a court with
jurisdiction may hear a case. Usually, venue is prem-
ised on where a defendant resides or does business,
where the wrongful act occurred, or alternatively,
where a plaintiff resides. The general venue statute
governing federal cases is 28 U.S.C.A. Section 1391.
Venue provisions for state courts are generally found
in statutes rather than rules of civil procedure; the
rules of procedure may address the way in which one
motions a court for a ‘‘change of venue.’’
Federal Rules of Civil Procedure (FRCP)
A major step toward establishing uniform federal
procedures was undertaken in 1934, when the U.S.
Supreme Court promulgated the Federal Rules of
Civil Procedure (FRCP). The bible for practicing at-
torneys, the Rules govern all civil actions in federal
courts nationwide, including federal BANKRUPTCY
court. The Rules are frequently amended and updat-
ed and contain Supplemental Rules sections for
cases in admiralty and maritime actions, as well as
‘‘local rules’’ pertaining to specific courts within the
federal system.
Although the Rules were intended to apply to U.S.
district courts within the federal system, nearly all
state courts have since replaced their own procedur-
al rules with new rules modeled after the FRCP. At
a minimum, it can be said that the FRCP represents
the dominant style of American civil procedure,
whether in federal or state court. Although there is
not uniformity PER SE, there is general consistency of
approach to matters common in most causes of ac-
tion.
Parties
In civil procedure, the prosecuting party (the one
filing a complaint or lawsuit or petition) is referred
to as a ‘‘plaintiff’’ or ‘‘petitioner’’ or ‘‘complainant’’
(depending upon the court and the nature of the
matter), while the opposing party is referred to as a
‘‘defendant’’ or ‘‘respondent.’’ (For purposes of sim-
plicity, the terms ‘‘plaintiff’’ and ‘‘defendant’’ are
used exclusively herein, but imply any or all of the
above, respectively.)
Any person may file a lawsuit under his or her own
name, but the person must have ‘‘legal capacity’’ to
sue (the legal competency to stand before the
court). This requirement implies, among other fac-
tors, minimum LEGAL AGE and mental competency.
FRCP 17(c) provides that a GUARDIAN or conservator
may sue or defend on behalf of an infant or legally
incompetent person; or, if none exists, the court will
appoint a ‘‘next friend’’ or ‘‘guardian ad litem’’ to
represent the interest of the child or incompetent
person. A deceased person may be represented in an
action by the personal representative (executor or
administrator) of the deceased’s estate. FRCP 17(b)
also provides that in federal court, the legal capacity
of a business corporation to sue or be sued is deter-
mined by the law under which it was organized.
Several parties may be joined in an action, as co-
plaintiffs or co-defendants. Under FRCP 23 and most
state rules, multiple plaintiffs who have suffered
harm as a result of the actions of a common defen-
dant may be joined together in one lawsuit called a
‘‘class action.’’ Under such a suit, only a few plaintiffs
will be named in the action, but they will represent
all plaintiffs within the certified ‘‘class,’’ and their
claims must be fairly representative of the interests
of all the persons within the class.
A lawsuit may become fairly complicated when
the original parties (and sometimes the court) bring
in third or additional parties not initially named in
the suit. Parties joined on the same side are referred
to as ‘‘co-parties.’’ If co-parties raise claims against
one another (e.g., a defendant blames another de-
fendant), they are ‘‘cross-parties’’ as to each other.
But if a ‘‘counter-claim’’ is raised against an opposing
party, they become ‘‘counter-parties’’ as to the
COUNTERCLAIM. In the ‘‘caption,’’ or heading of the
original action, the parties may be referred to as co-
plaintiffs, co-defendants, cross-plaintiffs, cross-
defendants, counter-plaintiffs, counter-defendants,
or ‘‘interested parties,’’ depending upon the claims
or defenses raised.
Commencement of an Action
A lawsuit must be commenced within the limita-
tion period provided by law (the applicable ‘‘statute
of limitations’’). Lawsuits not filed within the period
of the applicable STATUTE OF LIMITATIONS will be dis-
COURTS AND PROCEDURES—CIVIL PROCEDURE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 267
missed. Under the U.S. Supreme Court decision in
Erie v. Tompkins, federal courts will apply the stat-
ute of limitations of the state in which the federal
court lies. Statutes of limitations generally begin to
run when the cause of action arises. Many states have
exceptions that allow for ‘‘tolling’’ of their statutes of
limitations (temporarily ‘‘stopping the clock’’) dur-
ing periods of absence from the forum state, war,
legal INCOMPETENCY, etc. There are also special rules
that apply if death occurs prior to the expiration of
the limitations period.
Under FRCP 3 and many state jurisdictions, an ac-
tion commences when a complaint is filed. However,
many states do not consider the action to have com-
menced until service of process has been made upon
the defendant. Service of process may be made by
personal service of the complaint and SUMMONS upon
the defendant (many states permit registered mail
service); constructive service by notice or publica-
tion; or substituted service on a registered agent of
the defendant (as for business corporations). There
are strict rules that limit the use of constructive or
substituted service on defendants.
Pleadings
Pleadings are written formal allegations in support
of either a claim or a defense, presented for the
court’s consideration and judgment. Under FRPC 7,
pleadings are limited to a complaint and an answer,
a reply (to a counterclaim), an answer to a cross-
claim, a third-party complaint, and a third-party an-
swer.
The first pleading in an action is called a ‘‘com-
plaint.’’ (In a minority of jurisdictions, the pleading
may still be referred to as a ‘‘bill of complaint’’ or
‘‘declaration.’’) FRCP 10(a) requires that a complaint
contain, at a minimum the following:
• A caption that contains the name of the
court, the title of the action, the file number
(provided by the court), and the names of all
the parties
• A short and plain statement of facts which
tend to show that the pleader is entitled to
relief
• A demand for judgment for the relief to
which plaintiff deems himself or herself enti-
tled
• A signature of an attorney of record and the
attorney’s business address (or the party’s
signature and address, if not represented by
an attorney)
• A short and plain statement of the grounds
upon which the court’s jurisdiction depends
FRCP 7 provides that the responsive pleading to
a complaint is called an answer. It generally contains
denials of the allegations in the complaint and/or
new matters asserted as counterclaims or affirmative
defenses. However, under FRCP12 and most states’
rules, an interim responsive pleading may be in the
form of a motion to dismiss or a motion for SUMMARY
JUDGMENT, for such reasons as failure to state a claim,
lack of jurisdiction, insufficiency of process, etc.
These generally constitute ‘‘affirmative defenses’’
that do not speak to the specific facts alleged in the
complaint but rather challenge the validity of the
complaint on some other grounds.
Under FRCP 8, allegations in a pleading to which
a responsive pleading is required are admitted unless
they are specifically denied in the answer. Moreover,
under the federal rules, the defendant is required to
assert all defenses in the responsive pleading or they
will be waived. As part of the responsive pleading,
FRCP 13 permits the raising of a counterclaim against
the plaintiff, or a cross-claim against a co-party or a
third party claim against a non-party (who will be
served and joined as a party). There must be a reply
to a counterclaim or cross-claim. Amendments to
pleadings are permitted in the furtherance of justice
and on the terms deemed proper by the court (FRCP
15).
Pre-trial Procedure
Following the filing of all initial pleadings, there
begins a period of ‘‘discovery’’ which enables each
party to learn of evidence held by opposing or other
parties to the action. Generally speaking, the scope
of allowable DISCOVERY is broad: FRCP 26 provides
that parties may obtain discovery on any matter, not
privileged, which is relevant to the subject matter in-
volved in the pending action. Discovery is accom-
plished by means of subpoenas; requests for inspec-
tion of documents, photographs, recordings, or
other items of evidence; the taking of TESTIMONY of
witnesses (usually by DEPOSITION); review and copy-
ing of relevant records; written interrogatories (ques-
tions that must be answered under oath); written re-
quests for admissions (requiring admission or denial
of the facts posed); requests for physical or mental
EXAMINATION of a party; and often, visitation to sites,
premises, or geographic locations relevant to the
case.
Also during the pre-trial period (and continuing
through the trial process), various ‘‘motions’’ may be
COURTS AND PROCEDURES—CIVIL PROCEDURE
268 GALE ENCYCLOPEDIA OF EVERYDAY LAW
filed with the court, requesting that the court grant
an order on some matter related to the progress of
the case. A motion may request immediate relief for
an interim dispute (such as a motion to compel the
release of evidence) or it may request ‘‘dispositive’’
relief (such as a motion to dismiss the case for lack
of evidence or failure to state a cause of action).
Trial
At the close of discovery, parties are encouraged
to review the sum total of evidence and attempt to
settle the case. In many state jurisdictions, there is
compulsory (but non-binding) ‘‘mediation’’ of the
case, in which an independent panel reviews the
pleadings and evidence and makes a SETTLEMENT rec-
ommendation. If no viable settlement results, the
case will move on to the trial stage. Prior to trial, at-
torneys for the parties will provide written requests
for jury instructions they wish to include in the
charge to the jury (FRCP 51). Attorneys will also have
the opportunity to examine and rule out prospective
jurors (‘‘voir dire’’) for such disqualifying factors as
BIAS, personal familiarity with the parties or witness-
es, FELONY CONVICTION, legal relationship with any
party or witness (such as LANDLORD, employer, part-
ner), etc. (FRCP 47). These are referred to as ‘‘chal-
lenges for cause.’’ Most jurisdictions also permit a
certain number of ‘‘peremptory challenges,’’ where-
in trial attorneys may rule out prospective jurors
without stating their reason for doing so. After a final
jury is agreed upon and all last-minute motions have
been heard, trial begins.
In general, the order of proceedings at trial are:
opening statements (first plaintiff, then defendant);
introduction of evidence (first plaintiff, then defen-
dant, then rebuttal evidence); closing arguments
(first plaintiff, then defendant); instructions to the
jury (‘‘jury charge’’) by the court; return of verdict
and poll of jury; and entry of a judgment.
The normal order for the presentation of proofs
(evidence) is: the plaintiff introduces all the evidence
for his or her ‘‘case in chief’’; the defendant then in-
troduces his or her evidence in chief; the plaintiff
then offers rebuttal evidence; and finally, the defen-
dant may be permitted to present evidence in rebut-
tal of any new matter brought out in the plaintiff’s re-
buttal evidence (called surrebuttal). Objections to
any proffered evidence must be timely made or they
are waived; proper and/or permissible objections are
covered in the Federal Rules of Evidence (FRE) rath-
er than the FRCP.
Closing arguments are then made (plaintiff first,
followed by defendant, then followed with plaintiff’s
final rebuttal), and the jury is charged and seques-
tered for deliberations. The jury normally renders it
verdict through its foreman, and the entire jury must
be present when the verdict is delivered in court.
Barring any defects in form or challenges to the ver-
dict, a judgment is declared for the prevailing party.
Prior to the delivery of a verdict, either party may
motion the court for a judgment on the evidence
(e.g., a motion for summary judgment) or for
MISTRIAL (based upon an objection made during
trial). Following delivery of a verdict, a party may mo-
tion for a new trial or partial retrial (FRCP 59).
Judgment
A judgment on the verdict is not the only way to
prevail in a CIVIL ACTION. In fact, at the conclusion of
trial, either party may motion a court for a ‘‘judgment
notwithstanding the verdict,’’ (following the party’s
earlier motion for a DIRECTED VERDICT), even though
there has been a jury verdict for the other party.
Rather than defend a civil complaint, a party may
merely consent to judgment, as in claims of debt, and
such ‘‘consent judgments’’ are entered on the record
and are as binding as a full jury verdict.
A ‘‘default judgment’’ may be rendered against a
party if it is the result of a party’s failure to take a nec-
essary step in the action within the proper time; this
generally means a failure to plead or otherwise de-
fend within the time allowed. Since, under rules of
procedure, allegations not specifically denied are
deemed admitted, failure to file a responsive plead-
ing will generally result in the entry of a DEFAULT
JUDGMENT against the defendant.
Finally, under FRCP 57 and most state rules and/or
statutes, courts are authorized to grant ‘‘declaratory
judgments’’ in cases where the requested relief is in
the form of a court’s declaration of certain rights, sta-
tus, or legal relations between parties or entities.
Some examples include actions to ‘‘quiet title’’ to
real property, actions regarding ownership, or use of
intellectual property rights (such as copyrights or
PATENTS), etc. In order to invoke the court’s jurisdic-
tion in a declaratory matter, there must be an actual
controversy and not a mere desire for an advisory
opinion from the court.
Appeal
In both federal and state courts, a party may ap-
peal only final orders, decisions, or judgments. After
COURTS AND PROCEDURES—CIVIL PROCEDURE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 269
the entry of a final order, decision, or judgment,
there are strict procedural deadlines as to the num-
ber of days within which an appeal must be filed.
Grounds for appeal are extremely limited. An order
of a court will not be reversed unless the APPELLANT
can show that either the order was clearly contrary
to law or that the judge abused his or her discretion.
Likewise, there is limited review of trial judg-
ments. It is not generally sufficient to show error in
the conduct of trial; the appellant must show harm
or prejudice that was caused by the error (for exam-
ple, the introduction of evidence which the appellant
argued was improper and without which the appel-
lant most likely would have prevailed). APPELLATE
courts disregard harmless errors or defects that do
not affect the substantial rights of the parties in de-
termining whether a particular case should be re-
versed. (FRCP 61)
State Rules of Civil Procedure
The first state to establish uniform rules of civil
procedure was New York, which in 1848 enacted the
Field Code, named after its principal author, David
Dudley Field. Over the next several decades, nearly
all states had either adopted the Code outright or
had made other considerable changes to their proce-
dures. As of 2002, the Code has been replaced with
modified versions of the FRCP in nearly all states.
Notwithstanding, there are procedural differences
from state to state, and it is imperative that litigants
are familiar with state rules before proceeding in
court. Copies of state rules may often be found at
public libraries, college libraries, and/or on states’ of-
ficial Internet websites.
ALABAMA: See Title 6 of the Alabama Code of 1975,
also available at http://www.legislatures.state.al.us/
codeofAlabama/1975.
ALASKA: See Title 9 of Alaska Statutes, ‘‘Code of Civil
Procedure.’’
ARIZONA: See Title 12 of the Arizona Revised Stat-
utes, available at http://www.azleg.state.ar.us/
ARKANSAS: See Title 16, Subtitle 5 of the Arkansas
Code, available at http://www.arkleg.state.ar.us/
dcode.
CALIFORNIA: See the ‘‘California Code of Civil Proce-
dure.’’
COLORADO: See Title 13 of the Colorado Constitu-
tion, ‘‘Colorado Rules of Civil Procedure.’’
CONNECTICUT: See Title 52 of the General Statutes
of Connecticut, available at http://www.cga.state.ct.
us/2001/pub/Title52.
DELAWARE: See Title 10, Part 3 of the Delaware
Code, ‘‘Courts and Judicial Procedure.’’
DISTRICT OF COLUMBIA: See Titles 13-17.
FLORIDA: See ‘‘Florida Rules of Civil Procedure,’’
from the Florida Lawyers World Wide Web Resource
Center at http://phonl.com/fl_law/rules/frcp/
GEORGIA: See Title 9, Chapter 10 of the Georgia
Code.
IDAHO: See Titles 1-13 of the Idaho Code.
ILLINOIS: See Code of Civil Procedure, 735 IL CS 5.
INDIANA: See Title 34 of the Indiana Code, Articles
1-57, available at www.state.in.us/legislature/ic/code/
title34.
IOWA: See Title X, Subtitle 3 of the Iowa Code, avail-
able at www.legis.state.ia.us/IACODE.
KANSAS: See Chapters 60 and 61of the Kansas Stat-
utes, available at http://www.kslegislature.org/cgi-
bin/statutes/index.cgi.
KENTUCKY: See Kentucky Rules of Court, authority
found in Kentucky Constitution, Articles 109-116.
LOUISIANA: See the Louisiana Code of Civil Proce-
dure, available at http://www.legis.state.la.us.
MAINE: See Maine Rules of Civil Procedure, available
at http://www.cleaves.org/sc-rules.htm.
MARYLAND: See ‘‘Courts and Judicial Procedures,’’
Section 1-101, et seq., available at http://mlis.state.
md.us/cgi-win/web_statutes.exe.
MASSACHUSETTS: See Chapters 211-262 of the Gen-
eral Laws of Massachusetts, ‘‘Courts, Judicial Officers
and Proceedings in Civil Cases.’’
MICHIGAN: See ‘‘Michigan Rules of Court,’’ available
at http://www.michiganlegislature.org/law/
MCLSearch.asp.
MINNESOTA: See Chapters 540-552.
MISSISSIPPI: See Title 11of Mississippi Code of 1972,
available at http://www.mscode.com/free/statutes.
MISSOURI: See Missouri Revised Statutes, Title
XXXV, Chapters 506-517, available at http://www.
moga.state.mo.us/STATUTES.
COURTS AND PROCEDURES—CIVIL PROCEDURE
270 GALE ENCYCLOPEDIA OF EVERYDAY LAW
MONTANA: See Title 25 of state statute.
NEBRASKA: See Chapters 25 and 26 of Nebraska stat-
utes, available at http://statutes.unicam.state.ne.us/
NEVADA: See Titles 3-6 of the Nevada Revised Stat-
utes.
NEW HAMPSHIRE: See Title LIII, Chapters 514-526 of
the New Hampshire Revised Statutes, ‘‘Proceedings
in Court,’’ available at http://sudoc.nhsl.lib.nh.us/rsa/
LIII.htm.
NEW JERSEY: See Chapter 2A of the New Jersey Per-
manent Statutes, available at http://www.njleg.state.
nj.us/
NEW YORK: See Chapter 8 of the New York State
Consolidated Laws, available at http://assembly.state.
ny.us/leg/
NORTH CAROLINA: See Chapters 1 and 1A of the
North Carolina General Statutes.
NORTH DAKOTA: See Chapter 28 of the Century
Code. ‘‘Judicial Procedure, Civil.’’
OKLAHOMA: See Title 12 of the Oklahoma Statutes.
OREGON: See Chapters 12-36 of the Oregon Revised
Statutes.
PENNSYLVANIA: See Pennsylvania Constitution of
1968, Article V, Section 10C, 42 PA CS 1722, available
at http://member.aol./com/RulesPA/civil.hyml.
RHODE ISLAND: See Title 9, available at http://www.
rilin.state.ri.us/statutes/Title9/INDEX.
SOUTH CAROLINA: See Title 15 of the Code of Laws,
available at http://www.lpitr.state.sc.us/code/tit15.
htm.
SOUTH DAKOTA: See Title 15.
TENNESSEE: See Titles 19 and 20.
TEXAS: See ‘‘Civil Practice and Remedies Code,’’
available at http://www.capitol.state.tx.us/statutes/
cvtoc.html.
UTAH: See Future Title 28-‘‘Judicial Code’’ of the
Utah Code, available at http://www.le.state.ut.us/
FTITL78.
VERMONT: See Title 12 of the Vermont Statutes.
VIRGINIA: See Virginia Code Section 915a, available
at http://www.leg1.state.va.us/000/cod/code915a.
htm#751573.
WASHINGTON: See Title 4, ‘‘Civil Procedure,’’ of the
Revised Code of Washington, available at http://www.
leg.wa.gov/wsladm/rcw.cfm.
WEST VIRGINIA: See Chapters 55-58.
WISCONSIN: See Chapters 801-847 of the Wisconsin
Statutes.
WYOMING: See Title 1 of the Wyoming Statutes,
available at http://legisweb.state.wy.us/title/97titles/
title1.htm.
Additional Resources
‘‘Civil Procedure: an Overview.’’ Available at http://
www.law.cornell.edu/topics/civil_procedure.html.
The Court TV Cradle-to-grave Legal Survival Guide. Little,
Brown and Company, 1995.
Federal Rules of Civil Procedure. Available at http://
www.law.cornell.edu/topics/civil_procedure.html.
The Law of the Land. Rembar, Charles, Simon & Schuster,
1993.
West’s Encyclopedia of American Law. West Group, 1998.
COURTS AND PROCEDURES—CIVIL PROCEDURE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 271
This Page Intentionally Left Blank
COURTS AND PROCEDURES
CRIMINAL PROCEDURE
Sections within this essay:
• Background
• The Fourth Amendment and Criminal Proce-
dures Governing Police Investigations, Ar-
rests, Searches, and Seizures
- The Text of the Fourth Amendment
- Case Law Interpreting the Fourth
Amendment
• The Fifth Amendment and Criminal Proce-
dures Governing Post-Arrest and Pre-
Arraignment Proceedings
- The Text of the Fifth Amendment
- Case Law Interpreting the Fifth
Amendment
• The Sixth Amendment and Criminal Proce-
dures Governing Post-Arraignment and Pre-
Sentencing Proceedings
- The Text of the Sixth Amendment
- Case Law Interpreting the Sixth
Amendment
• The Eighth Amendment’s Limitations on
Sentencing
- The Text of the Eighth Amendment
- Case Law Interpreting the Eighth
Amendment
• Appeal and other Post-Conviction Proceed-
ings
• Additional Resources
Background
CRIMINAL PROCEDURE is the body of state and fed-
eral constitutional provisions, statutes, court rules,
and other laws governing the administration of jus-
tice in criminal cases. The term encompasses proce-
dures that the government must follow during the
entire course of a criminal case, ranging from the ini-
tial investigation of an individual suspected of crimi-
nal activity, through arrest, arraignment, PLEA negoti-
ations, pre-trial hearings, trial, post-trial motions,
pre-sentence interviews, sentencing, appeals, and
PROBATION and PAROLE proceedings. The rules of
criminal procedure may also apply after a DEFENDANT
has been unconditionally released following an
ACQUITTAL. For example, the DOUBLE JEOPARDY
Clause of the Fifth Amendment to the U. S. Constitu-
tion may be invoked by individuals who are facing
prosecution on charges for which they have already
been found not guilty.
Criminal procedures are designed to safeguard
both the innocent and the guilty from indiscriminate
application of substantive criminal laws (i.e., laws
prohibiting rape, murder, ARSON, and theft, etc.) and
from arbitrary or abusive treatment at the hands of
law enforcement, the courts, or other members of
the justice system. At the federal level these safe-
guards are primarily set forth in three places: the
Federal Rules of Criminal Procedure, Title 18 of the
United States Code sections 3001 et seq., and
Amendments IV, V, VI, and VIII to the U. S. Constitu-
tion. The rules and statutes reference each other,
and both are designed to enforce and delineate in
greater detail the rights established by the federal
Constitution.
The Fourth Amendment prohibits the govern-
ment from conducting unreasonable searches and
seizures while investigating criminal activity and
building a case against a particular suspect. The Fifth
GALE ENCYCLOPEDIA OF EVERYDAY LAW 273
Amendment prohibits the government from compel-
ling individuals to INCRIMINATE themselves, from de-
nying individuals DUE PROCESS OF LAW, from subject-
ing individuals to multiple punishments or
prosecutions for a single offense, and from being
prosecuted in federal court without first being indict-
ed by a GRAND JURY. The Sixth Amendment guaran-
tees defendants the right to a speedy and public trial
by an IMPARTIAL jury, the right to be informed of all
charges against them, the right to confront adverse
witnesses, the right to SUBPOENA favorable witnesses,
and the right to an attorney. The Eighth Amendment
prohibits the government from requiring excessive
BAIL to be posted for pre-trial release, from imposing
excessive fines, and from inflicting cruel and unusual
punishments.
The freedoms safeguarded by the Fourth, Fifth,
Sixth, and Eighth Amendments have two lives, one
static and the other organic. Their static life exists in
the original language of the amendments as they
were ratified by the states in 1791, while their organic
life exists in the growing body of state and federal CASE
LAW interpreting their text, applying it, and defining
its scope as different factual situations come before
the courts. All of the rights protected by these four
amendments, except the right to INDICTMENT by a
grand jury, have been made applicable to state crimi-
nal proceedings via the doctrine of incorporation.
Under this doctrine U. S. Supreme Court has said
that no state may deny any citizen a fundamental lib-
erty without violating the Fourteenth Amendment’s
EQUAL PROTECTION and Due Process Clauses. The
fundamental liberties guaranteed to criminal defen-
dants by the Fourth, Fifth, Sixth, and Eighth Amend-
ments are best understood in the context of the
criminal proceeding during which they are normally
triggered.
The Fourth Amendment and Criminal
Procedures Governing Investigation,
Arrest, and Search and Seizure
The Text of the Fourth Amendment
The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreason-
able 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.
Case law interpreting the Fourth
Amendment
Law enforcement officers are entrusted with the
power to conduct investigations, make arrests, per-
form searches and seizures of persons and their be-
longings, and occasionally use lethal force in the line
of duty. But this power must be exercised within the
BOUNDARIES of the law, and when police officers ex-
ceed those boundaries they jeopardize the admissi-
bility of any EVIDENCE collected for prosecution. By
and large, the Fourth Amendment and the case law
interpreting it establish these boundaries.
The safeguards enumerated by the Fourth
Amendment only apply against governmental action,
namely action taken by a governmental official or at
the direction of a governmental official. Thus, actions
taken by state or federal law enforcement officials or
private persons working with law enforcement offi-
cials will be subject to the strictures of the Fourth
Amendment. Bugging, WIRETAPPING, and other relat-
ed surveillance activity performed by purely private
citizens, such as private investigators, will not receive
Fourth Amendment protection.
Nor will individuals receive Fourth Amendment
protection unless they can demonstrate that they
have a reasonable expectation of privacy in the place
to be searched or the thing to be seized. The U. S.
Supreme Court explained that what ‘‘a person know-
ingly exposes to the public, even in his own home
or office, is not a subject of Fourth Amendment pro-
tection.... But what he seeks to preserve as private,
even in an area accessible to the public, may be con-
stitutionally protected’’ (see Katz v. United States,
389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 576 [1976]). In
general the Court has said that individuals enjoy a
reasonable expectation of privacy in their own bo-
dies, PERSONAL PROPERTY, homes, and business of-
fices. Individuals also enjoy a qualified expectation of
privacy in their automobiles.
Once it has been established that an individual
possesses a reasonable expectation of privacy in a
place to be searched or a thing to be seized, the
Fourth Amendment’s protections take hold, and the
question then becomes what are the nature of those
protections. Searches and seizures performed with-
out a WARRANT (a court order approving a search, a
seizure, or an arrest) based on probable cause are
presumptively invalid. However, in certain situations
the Supreme Court has ruled that warrantless search-
es may be reasonable under the circumstances and
thus pass constitutional muster.
COURTS AND PROCEDURES—CRIMINAL PROCEDURE
274 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Police officers need no justification to stop some-
one on a public street and ask questions, and individ-
uals are completely entitled to refuse to answer any
such questions and go about their business. Howev-
er, the Fourth Amendment prohibits police officers
from detaining pedestrians and conducting any kind
of search of their clothing without first possessing a
reasonable and articulable suspicion that the pedes-
trians are engaged in criminal activity (see Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 21 L. Ed. 889 [1968]).
Police may not even request that a pedestrian pro-
duce identification without first meeting this stan-
dard. Similarly, police may not stop motorists with-
out first having a reasonable and articulable
suspicion that the driver has violated a traffic law. If
a police officer has satisfied this standard in stopping
a motorist, the officer may conduct a search of the
vehicle’s interior, including the glove compartment,
but not the trunk unless the officer has probable
cause to believe that it contains CONTRABAND or the
instrumentalities of criminal activity.
The Fourth Amendment also expresses a prefer-
ence for arrests to be based on a warrant. But war-
rantless arrests can be made when the circumstances
make it reasonable to do so. For example, no warrant
is required for a FELONY arrest in a public place, even
if the arresting officer had ample time to procure a
warrant, so long as the officer possessed probable
cause that the suspect committed the crime. Felony
arrests in places not open to the public generally do
require a warrant, unless the officer is in ‘‘hot pur-
suit’’ of a fleeing FELON (see Warden v. Hayden, 387
U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 [1967]). The
Fourth Amendment also allows warrantless arrests
for misdemeanors committed in an officer’s pres-
ence.
The exceptions to the Fourth Amendment’s war-
rant requirement are based on the court’s reluctance
to unduly impede the job of law enforcement offi-
cials. Courts attempt to strike a balance between the
practical realities of daily police work and the privacy
and freedom interests of the public. Requiring police
officers to take the time to obtain an arrest or SEARCH
WARRANT could result in the destruction of evidence,
the disappearance of suspects, or both.
When an officer does seek a search or ARREST
WARRANT, the officer must present evidence to a neu-
tral judge or MAGISTRATE sufficient to establish proba-
ble cause that a crime has been committed. The Su-
preme Court has said that probable cause exists
when the facts within an officer’s knowledge provide
a reasonably trustworthy basis for a man of reason-
able caution to believe that an offense has been com-
mitted or is about to be committed. Courts will deny
requests when the warrant fails to describe in partic-
ularized detail the person to be arrested or the place
to be searched. The evidence upon which a warrant
is based need not be ultimately ADMISSIBLE at trial,
but it cannot be based on knowingly or intentionally
false statements or statements made in reckless dis-
regard of the truth. Courts will usually invalidate
searches, seizures, and arrests made pursuant to a
defective warrant. Inaccuracies found in a warrant
due to ordinary NEGLIGENCE will not typically jeopar-
dize a warrant’s validity.
The Fifth Amendment and Criminal
Procedures Governing Post-Arrest and
Pre-Arraignment Proceedings
The Text of the Fifth Amendment
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the MILITIA, when
in actual service in time of War or public danger; nor
shall any person be subject for the same offence to
be twice put in JEOPARDY of LIFE OR LIMB; nor shall be
compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall pri-
vate property be taken for public use, without just
compensation.
Case Law Interpreting the Fifth Amendment
Once a suspect has been arrested or taken into
CUSTODY, the rights guaranteed by the Fifth Amend-
ment are triggered. In Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966), the Su-
preme Court held that under the Fifth Amendment’s
SELF-INCRIMINATION Clause, statements made to the
police during custodial interrogation will later be
deemed INADMISSIBLE at trial unless the suspect is
first told that he or she has: (1) the right to remain
silent; (2) the right to consult an attorney before
being questioned by the police; (3) the right to have
an attorney present during police questioning; (4)
the right to a court appointed attorney if the defen-
dant cannot afford to hire a private attorney; and (5)
the right to be informed that any statements they do
make can and will be used against them at trial.
If a suspect makes a request to consult with an at-
torney, the interrogation must immediately cease or
COURTS AND PROCEDURES—CRIMINAL PROCEDURE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 275
any subsequent statements made without the attor-
ney present will be ruled inadmissible. However, a
suspect’s request for an attorney will not prevent law
enforcement from compelling the suspect to partici-
pate in a LINEUP of persons for the victim to review
or from having the suspect’s picture taken and
shown to the victim in a photo array. Nor may a sus-
pect raise the Self-Incrimination Clause as an objec-
tion to giving a writing sample, providing a voice ex-
emplar, or taking a blood test. Applying a Fourth
Amendment analysis, the Supreme Court has said
that the Self-Incrimination Clause does not apply to
these situations because individuals have no privacy
interest in their physical characteristics.
The purpose of the right against self-incrimination
is to deter the government from compelling a
CONFESSION through force, COERCION, or deception.
Confessions produced by these methods are not
only considered uncivilized by modern standards,
but they are also considered unreliable, since they
are often involuntary or unwitting or the result of the
accused’s desire to avoid further browbeating, in-
stead of being the product of candor or a desire to
confess.
The Fifth Amendment guarantees three other
rights that relate to criminal procedure. First, every
defendant has the right to be indicted by a grand jury
before standing trial in federal court. As noted above,
the Grand Jury Clause has not been made applicable
to the states, and many states allow prosecutions
based on information or complaint, which are writ-
ten instruments prepared by the PROSECUTOR. In fed-
eral criminal proceedings and in states that use the
grand jury system, grand juries are normally com-
prised of between 16 and 23 persons from the dis-
trict in which the crime occurred, and they can re-
turn an indictment against the defendant by majority
vote.
Second, the Fifth Amendment prohibits the gov-
ernment from subjecting individuals to multiple
prosecutions or multiple punishments for a single of-
fense. This prohibition is called the right against dou-
ble jeopardy. Defendants may bring motions pursu-
ant to the Double Jeopardy Clause either before a
trial to prevent a subsequent prosecution or punish-
ment or after trial to overturn a subsequent prosecu-
tion or punishment.
Third, the Fifth Amendment guarantees every de-
fendant the right to due process. The Due Process
Clause requires that all criminal proceedings be con-
ducted in a fair manner by an impartial judge who
will allow ACCUSED individuals to fully present their
defense, and proceedings that produce arbitrary or
capricious results will be overturned as unconstitu-
tional. The right to due process applies to every
phase of criminal proceedings from pre-trial ques-
tioning to post-trial hearings and appeals, and its ap-
plication to some of these proceedings will be dis-
cussed below.
The Sixth Amendment and Criminal
Procedures Governing Post-Arraignment
and Pre-Sentencing Proceedings
The Text of the Sixth Amendment
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an im-
partial 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 in-
formed 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 defense.
Case Law Interpreting the Sixth Amendment
Once a suspect has been arrested, the rights creat-
ed by the Sixth Amendment take hold. The Sixth
Amendment right to a speedy trial arises after a de-
fendant has been arrested, indicted, or otherwise for-
mally accused. Title 18 USCA sections 3161 et seq ex-
plain the nature of this right. Prior to the point of
formal accusation, the government is under no con-
stitutional or STATUTORY obligation to discover or in-
vestigate criminal activity or accuse or PROSECUTE
suspected criminals within a particular amount of
time. Nor is the Speedy Trial Clause implicated after
the government has dropped criminal charges, even
if the government refiles those charges at a much
later date.
The Supreme Court has declined to draw a bright
line separating permissible pre-trial delays from de-
lays that are impermissibly excessive. Instead, the
Court has developed a balancing test that weighs the
reasons for delay against the prejudice suffered by
the defendant in having to endure the delay. A delay
of at least one year in bringing a defendant to trial fol-
lowing arrest will create a presumption that the
Speedy Trial Clause has been violated. However, de-
fendants whose own actions lengthen the pretrial
phase or who fail to assert this right early in a crimi-
nal proceeding hurt their chances of prevailing on a
speedy trial claim.
COURTS AND PROCEDURES—CRIMINAL PROCEDURE
276 GALE ENCYCLOPEDIA OF EVERYDAY LAW
The point at which defendants are formally
charged also triggers the Sixth Amendment right to
be informed of the nature and cause of every accusa-
tion against them. Courts have interpreted this provi-
sion to have two elements. First, defendants must re-
ceive notice of any criminal accusations that the
government has formally lodged against them
through an indictment, information, or complaint.
Second, defendants may not be tried, convicted, or
sentenced for a crime that materially varies from the
crime set forth in the formal charge. If either element
is not satisfied and the defendant is convicted, the
court will set aside the verdict and sentence.
Once a defendant has been formally charged by
the prosecution in writing, the defendant will be ar-
raigned before a court. At the arraignment the court
generally reads the written charges to the defendant
and attempts to determine if the defendant under-
stands the charges or needs further explanation. De-
fendants are also provided with the opportunity to
enter a plea of guilty or not guilty at the arraignment.
The arraignment is important for Sixth Amend-
ment purposes because it gives rise to defendants’
right to counsel, after which defendants are entitled
to have counsel present at every ‘‘critical stage’’ of
the proceedings. A critical stage is every stage of a
criminal proceeding at which the advice of counsel
is necessary to ensure defendants’ right to a fair trial
or every stage at which the absence of counsel might
impair the preparation or presentation of a defense.
Critical stages include important pre-trial hearings,
such as a HEARING upon a motion to suppress evi-
dence, jury selection, trial, and sentencing. Non-
critical stages include pre-trial procurement of defen-
dants’ FINGERPRINTS, blood, DNA, clothing, hair, and
handwriting or voice samples. Denial of counsel to
a defendant during a critical stage is considered tan-
tamount to an unfair trial warranting the reversal of
a CONVICTION.
Defendants are not required to be represented by
counsel but may instead choose to represent them-
selves throughout the course of a criminal prosecu-
tion, which is called appearing PRO SE. However, the
WAIVER of the right to counsel must be done in a
knowing and intelligent fashion by a defendant who
is aware of the advantages to being represented by
counsel. Before accepting a defendant’s waiver of
counsel, courts will normally explain many of these
advantages to the defendant. For example, attorneys
can advise their clients whether it is in their self-
interest to make any statements to the police. Attor-
neys can also determine the propriety of bringing
any pre-trial motions, including motions to dismiss
the case, compel the production of exculpatory evi-
dence, limit TESTIMONY of adverse witnesses, and
suppress evidence seized in violation of the Constitu-
tion. Under case law interpreting the Fourth Amend-
ment, not only is unconstitutionally obtained evi-
dence rendered inadmissible at trial under the
EXCLUSIONARY RULE, but any evidence derived from
the constitutional violation is also subject to suppres-
sion via the ‘‘fruit of the poisonous tree’’ doctrine.
Pro se defendants are not likely to understand these
nuances of criminal procedure.
Attorneys can also influence the amount of bail
that is set by a court following arrest. The Eighth
Amendment prohibits courts from setting bail in an
excessive amount. Criminal defense attorneys are ac-
customed to making arguments in favor of setting
bail at a level proportionate to the severity of the
crime so that gainfully employed defendants accused
of less serious offenses can continue earning a living
while awaiting trial. In certain instances when defen-
dants have strong ties to a community, attorneys can
convince courts to waive bail and release the defen-
dants on their own recognizance, which means that
defendants will not be incarcerated prior to trial but
are obligated to appear for scheduled court appoint-
ments in a timely fashion or risk losing this privilege.
Once the trial begins, the Sixth Amendment guar-
antees that the defendant be tried in a court open to
the public before an impartial jury. The right to a jury
trial only applies to charges for which the defendant
will be incarcerated upon conviction. If a defendant
is tried by the court without a jury, the Sixth Amend-
ment precludes IMPRISONMENT as a punishment. The
right to a public trial is personal to the defendant and
may not be asserted by either the media or the public
in general. However, both the media and members
of the public have a qualified First Amendment right
to attend criminal proceedings.
The right to an impartial jury entitles the defen-
dant to a jury pool that represents a fair cross section
of the community. From the pool a panel of jurors
is chosen to hear the case through a process called
VOIR DIRE. During voir dire the presiding judge, the
prosecution, and attorneys for the defense are al-
lowed to ask members of the jury pool a variety of
questions intended to reveal biases, prejudices, or
other influences that might affect their impartiality.
Jurors may be excluded from service for a specific
reason, called a challenge for cause, or for strategic
COURTS AND PROCEDURES—CRIMINAL PROCEDURE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 277
purposes, called a peremptory strike. Attorneys for
both sides may exercise an infinite number of chal-
lenges for cause, while all jurisdictions limit the num-
ber of peremptory strikes. For example, in New York
state courts both the prosecution and defense re-
ceive three peremptory strikes plus one extra for
each alternate juror (see NY CPLR ¤4109). The Equal
Protection Clause of the Fourteenth Amendment
also limits attorneys’ use of peremptory strikes, mak-
ing it unlawful to exclude jurors on account of their
race (see Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d
69, 106 S.Ct. 1712 [1986]). The jurors who are ulti-
mately impaneled for trial need not represent a cross
section of the community as long as they maintain
their impartiality throughout the proceedings. The
presence of even one biased juror impaneled to hear
the case is not permitted under the Sixth Amend-
ment.
The constitutional parameters governing the size
of a jury in criminal cases are not established by the
Sixth Amendment but by the Due Process Clauses of
the Fifth and Fourteenth Amendments. The Su-
preme Court has ruled that in capital cases (i.e.,
cases in which the death penalty may be imposed)
a defendant’s right to a fair trial requires that the jury
be comprised of twelve members who must unani-
mously agree on the issue of guilt before the defen-
dant may be convicted and sentenced to death. For
non-capital cases, the Supreme Court has ruled that
the Constitution permits a verdict to be rendered by
a majority vote of as few as nine jurors when the
panel consists of twelve. The Court has also said that
the Constitution permits trial by as few as six jurors
in non-capital cases but that if a six-person jury is im-
paneled to decide a criminal case, all six must agree
on the defendant’s guilt before a conviction can be
returned.
After the jury has been selected, the prosecution
presents its case in chief. The Sixth Amendment
guarantees defendants the right to confront witness-
es who TESTIFY against them. In all but exceptional
circumstances, the type of confrontation contem-
plated by the Sixth Amendment is face-to-face con-
frontation, allowing defendants to hear evidence
against them, consult with their attorneys, and par-
ticipate in CROSS-EXAMINATION to test the CREDIBILITY
and reliability of the victim or other prosecution wit-
nesses.
Once the prosecution finishes presenting its case
in chief, the defendant must be allowed the opportu-
nity to put on a defense. The Sixth Amendment gives
defendants the right to subpoena witnesses and
compel the production of evidence favorable to their
case. The Sixth Amendment guarantees this right
even if an indigent defendant cannot afford to pay
the expenses that accompany the use of judicial re-
sources to subpoena evidence. Defendants are
under no obligation to testify themselves, as the Fifth
Amendment right to remain silent applies during
trial just as fully as it does during pre-trial question-
ing by the police. In fact, the defense need not call
any witnesses or offer any evidence at all. The prose-
cutor has the burden of proving the defendant’s guilt
BEYOND A REASONABLE DOUBT, and the defendant may
decide that the prosecution’s case is sufficiently
weak that the jury will vote to ACQUIT without hear-
ing from the defense.
If the court hears from the defense, each side is
then allowed to present rebuttal testimony after
which both sides will normally rest. The Sixth
Amendment right to an impartial jury prohibits jury
members from deliberating before all of the evi-
dence has been submitted, the attorneys have made
their closing arguments, and the judge has read the
instructions. Once deliberations begin, jurors may
ask the court for clarification of the instructions and
for portions of the testimony transcribed for their re-
view. If the jurors cannot reach a verdict after dis-
cussing the evidence amongst themselves, the judge
will try to determine if they are hopelessly dead-
locked. However, the judge cannot force a jury to
reach a verdict, but the judge may encourage the ju-
rors to make every reasonable effort to resolve their
differences. If the jurors remain deadlocked for a rea-
sonable period of time after meeting with the judge,
the court will declare a MISTRIAL and dismiss the
panel from further service.
If the jurors return a verdict of not guilty, the
court will enter a judgment of acquittal, and the de-
fendant is free to leave the courthouse without limi-
tation or condition. If the jurors return a verdict of
guilty, the case will proceed to sentencing. For lesser
offenses, such as simple or petty misdemeanors, sen-
tencing may immediately follow the verdict. For all
other offenses, sentencing is usually conducted by
the court in a separate hearing held several days or
weeks after the verdict. Both the prosecution and de-
fense are permitted to make arguments as to the ap-
propriate sentence, and courts are generally given
wide latitude in crafting individualized punishments
within the statutory guidelines. Sometimes this dis-
cretion is curtailed by guidelines that require manda-
tory minimum sentences. Punishments may include
COURTS AND PROCEDURES—CRIMINAL PROCEDURE
278 GALE ENCYCLOPEDIA OF EVERYDAY LAW
any combination of community service, FORFEITURE
of property, fines, probation, or INCARCERATION. In 38
states and in federal court, defendants may be sen-
tenced to death for first-degree murder, felony mur-
der, and other similarly serious crimes.
The Eighth Amendment Limitations on
Sentencing
The Text of the Eighth Amendment
Excessive bail shall not be required, nor excessive
fines imposed, nor CRUEL AND UNUSUAL PUNISHMENT
inflicted.
Case Law Interpreting the Eighth
Amendment
A court’s discretion in sentencing a defendant is
also limited by the Eighth Amendment, which pro-
hibits the imposition of excessive fines and the inflic-
tion of cruel and unusual punishment. The Excessive
Fines Clause has proven to have little effect over the
course of the last two centuries. Trial judges are af-
forded extremely wide discretion in assessing fines
on criminal defendants, and they are rarely over-
turned on appeal. For a fine to be overturned there
must be proof that it was arbitrary, capricious, or so
grossly excessive as to amount to a deprivation of
property without due process of law. As a practical
matter, the cost of appealing a fine often exceeds the
amount of the fine itself, thereby reducing the incen-
tive to appeal.
On the other hand, the Cruel and Unusual Punish-
ment Clause has been the subject of much
LITIGATION. This clause requires every punishment
imposed by the government to be commensurate
with the offense committed by the defendant. Pun-
ishments that are disproportionately harsh will be
overturned on appeal. Examples of punishments that
have been overturned on Eighth Amendment
grounds include two Georgia statutes that pre-
scribed the death penalty for rape and KIDNAPPING
(see Coker v. Georgia, 433 U. S. 584, 97 S. Ct. 2861,
53 L. Ed.2d 982 (1977); Eberheart v. Georgia, 433
U.S. 917, 97 L. Ed.2d 2994, 53 L. Ed. 2d 1104 [1977]).
The Supreme Court has also ruled that criminal sen-
tences that are inhumane, outrageous, barbarous, or
shock the social consciousness also violate the
Eighth Amendment.
In 1972 the U. S. Supreme Court placed a morato-
rium on CAPITAL PUNISHMENT throughout the United
States, declaring that the statutes authorizing the
death penalty were too broad and allowed for arbi-
trary and discriminatory application by judges and ju-
ries (see Furman v. Georgia, 408 U.S. 238, 92 S.Ct.
2726, 33 L.Ed.2d 346 [1972]). But four years later the
Supreme Court upheld three new state statutes that
were enacted to cure those flaws (see Gregg v. Geor-
gia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859
[1976]). Thirty-five states and the federal govern-
ment soon followed suit by revising their death pen-
alty statutes to comply with the Eighth Amendment,
and the nation’s high court has since shown reluc-
tance to closely scrutinize these statutes.
However, in 2001 the Georgia Supreme Court sur-
prised many legal observers when it banned use of
the electric chair in executing death row inmates
(see Dawson v. State, —- S.E.2d ——, 2001 WL
1180615 [GA.2001]). The court said that death by
electrocution violated the state constitution’s prohi-
bition against cruel and unusual punishment be-
cause it inflicted purposeless violence and needless
mutilation on the prisoner, and as such made no
measurable contribution to the accepted goals of
punishment (see GA Const. Art. 1, ¤ 1, par. 17). At
the same time, the court stressed that it was not call-
ing into question Georgia’s entire system of capital
punishment. On the contrary, the court said that
death by lethal injection raised no constitutional
questions because it was minimally intrusive and in-
volved no mutilation.
Appeal and other Post-Conviction
Proceedings
The federal Constitution does not guarantee the
right to appeal a criminal conviction. However, every
state affords defendants the right to have at least one
APPELLATE COURT review the record for trial court er-
rors. Many of these states restrict the subject matter
of what may be appealed, curtail the time in which
an appeal may be taken, or permit APPELLATE courts
to issue decisions upon the record and briefs submit-
ted by the parties without holding a hearing or enter-
taining oral arguments. Federal statutes grant crimi-
nal defendants in federal court the right to appeal.
Only one review is granted as a matter of right, and
this is to the U. S. Court of Appeals. Review of state
and federal convictions by the U. S. Supreme Court
is discretionary.
After incarcerated defendants have exhausted all
appeals without success, they may file a WRIT of
HABEAS CORPUS. This is a civil suit against the warden
of the prison, challenging the constitutionality of the
incarceration. A habeas corpus petition is not anoth-
COURTS AND PROCEDURES—CRIMINAL PROCEDURE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 279
er appeal. The only basis for granting relief to a habe-
as corpus petitioner is the deprivation of a constitu-
tional right. For example, an inmate might claim that
he or she was denied the assistance of counsel guar-
anteed by the Sixth Amendment on grounds that
their attorney was incompetent. Violations of the
Fourth Amendment’s prohibition against unreason-
able searches and seizures are not grounds for grant-
ing a writ of habeas corpus.
If a defendant loses on appeal and is denied a writ
of habeas corpus, most jurisdictions offer a few last-
ditch remedies. If the sentence includes parole, an
inmate may petition the parole board to move up the
date for parole. Inmates of state prisons may ask the
governor of the state in which they are imprisoned
for CLEMENCY. If granted, clemency normally includes
the restoration of a released inmate’s CIVIL RIGHTS,
such as the right to vote and own a gun. A commuta-
tion of sentence is a lesser form of clemency, since
it does not restore the legal rights of the inmate but
only releases him or her from incarceration. Federal
inmates may ask the president of the United States
for a PARDON, which, like clemency, releases the in-
mate from custody and restores his or her legal
rights and privileges.
Additional Resources
American Jurisprudence. Lawyers Co-operative Publish-
ing Company, 2001.
Criminal Procedure. Wayne R. LaFave, Jerold H. Israel,
and Nancy J. King, West Group, 2001.
Criminal Procedure.Wayne R. LaFave, Jerold H. Israel, and
Nancy J. King, West Group, 2001.
http://sol.lp.findlaw.com. Criminal Law and Procedure De-
cisions of the October 2000-2001 Supreme Court Term
Oxford Companion to the Supreme Court. Kermit Hall,
ed., Oxford University Press, 1992.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Civil Liberties Union (ACLU)
1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
E-Mail: info@aclu.org
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive
Director
Association of Federal Defense Attorneys
8530 Wilshire Blvd, Suite 404
Beverly Hills, CA 90211 USA
Phone: (714) 836-6031
Fax: (310) 397-1001
E-Mail: AFDA2@AOL.com
URL: http://www.afda.org
Primary Contact: Gregory Nicolaysen, Director
Center for Human Rights and Constitutional
Law
256 S. Occidental Blvd.
Los Angeles, CA 90057 USA
Phone: (213) 388-8693
Fax: (213) 386-9484
E-Mail: mail@centerforhumanrights.org
URL: http://www.centerforhumanrights.org
Primary Contact: Peter A. Schey, Executive Director
National District Attorneys Association
(NDAA)
99 Canal Center Plaza
Alexandria, VA 22314 USA
Phone: (703) 549-9222
Fax: (703) 836-3195
URL: http://www.ndaa.org
Primary Contact: Thomas J. Charron, Director
COURTS AND PROCEDURES—CRIMINAL PROCEDURE
280 GALE ENCYCLOPEDIA OF EVERYDAY LAW
COURTS AND PROCEDURES
FEDERAL COURTS AND JURISDICTIONS
Sections within this essay:
• Background
• Structure and Power of the Federal Courts
- Supreme Court of the United States
- Federal Courts of Appeals
- Federal District Courts
- Specialized Federal Courts
• Jurisdiction of Federal Courts
- Diversity Jurisdiction
- Federal-Question Jurisdiction
- Admiralty and Maritime Cases
- Bankruptcy
- Other Areas of Federal Jurisdiction
• Jurisdictions of Federal Courts in the U.S.
States and Territories
• Additional Resources
Background
Article III of the United States Constitution estab-
lishes the judicial power of the federal government.
Under the Constitution, the authority of the federal
judiciary extends only to certain ‘‘cases’’ and ‘‘con-
troversies,’’ which are identified by either the nature
of the suit or the parties involved. The Constitution
establishes the Supreme Court of the United States
and permits Congress to establish ‘‘inferior’’ federal
courts. The federal judiciary currently consists of the
Supreme Court, courts of appeals in 12 regional judi-
cial circuits, two intermediate APPELLATE courts with
special power to hear cases originating nationwide,
a total of 94 judicial districts throughout the 50 states
that contain at least one federal district court and
one BANKRUPTCY court, territorial courts that function
as district courts in several territories, and special-
ized tribunals that have been established by Con-
gress pursuant to power provided in Article I of the
Constitution. The district courts serve as the trial
courts in the federal system, while the courts of ap-
peals serve as intermediate appellate courts.
The power or authority of a court to hear and de-
cide a case or controversy is called the JURISDICTION
of the court. Jurisdiction may be divided into two
broad categories: subject-matter jurisdiction and
personal jurisdiction. Subject-matter jurisdiction re-
fers to the authority of a court to hear a certain type
of case, while personal jurisdiction refers to the
power with which a court may bind an individual
party. Most cases and controversies that can be heard
by the federal judiciary consist of the following:
• Cases governed by federal law, such as the
federal Constitution, federal STATUTORY pro-
visions, or federal regulations (federal ques-
tion jurisdiction)
• Suits between citizens of different states (di-
versity jurisdiction)
• Suits between a citizen of a state and a citi-
zen of a foreign country
• Admiralty and maritime cases
• Suits in which the United States is a party
• Suits between two states
The United States operates with a dual system of
courts: the federal judiciary and the judicial systems
of the states. If a party brings an action in a state
GALE ENCYCLOPEDIA OF EVERYDAY LAW 281
court, but a federal court has jurisdiction to hear the
case, the DEFENDANT may choose to ‘‘remove’’ the
case to the federal court, subject to several limita-
tions set forth in Title 28 of the United States Code.
The defendant is not obligated to remove such a
case, and questions about whether removal is proper
in a particular case are often subjects of controversy
in federal courts. In a case where a federal court per-
mits a state court case to be removed but later deter-
mines that removal was improper, the federal court
will remand the case to the state court.
Structure and Power of the Federal
Courts
Pursuant to its Constitutional power, Congress
has established inferior courts in the federal judiciary
at the intermediate appellate and trial court levels.
Courts that have been established under Article III of
the Constitution, including the Supreme Court of the
United States, United States Courts of Appeals, and
United States District Courts, are called constitution-
al, or Article III, courts. Congress, pursuant to pow-
ers granted in Article I, may also establish legislative,
or Article I, courts. These courts are designed to
carry out specific legislative directives. Examples of
such courts are the United States Court of Federal
Claims and the United States Tax Court.
Supreme Court of the United States
The Supreme Court of the United States consists
of the CHIEF JUSTICE of the United States and, since
1869, eight associate justices. The number of justices
varied during the first 80 years of the country’s histo-
ry, beginning with five justices in 1798 and growing
to as many as ten in 1863. Congress retains authority
under the Constitution to establish the number of as-
sociate justices. The president of the United States
nominates Supreme Court justice candidates, and
appointments are made ‘‘with the advice and con-
sent of the Senate.’’ Under Article III of the Constitu-
tion, United States Supreme Court justices have life-
time tenure in their positions ‘‘during time of good
Behaviour.’’ Lifetime tenure is also true of the judges
in the lower constitutional courts of the federal sys-
tem. The chief justice presides over the Supreme
Court and also holds leadership roles on the Judicial
Conference of the United States, the Administrative
Office of the United States, and the Federal Judicial
Center.
In the vast majority of Supreme Court decisions,
the Court exercises its appellate jurisdiction. The
Court may assert original jurisdiction (that is, decide
a case from beginning to end) if the case involves
states or a state and the federal government. These
types of cases are seldom filed with the Court. In ex-
ercising its appellate jurisdiction, the Court can hear
cases appealed from both lower federal courts and
state supreme courts if a case involves an issue of
federal law. With respect to cases originating in state
court, parties must exhaust their possibilities in the
state court system before the Supreme Court will
consider HEARING a case.
The Supreme Court is not required to hear most
requests for appeals. The decision of the Supreme
Court to hear an appeal is discretionary in almost all
cases today. Unless an appeal is mandatory, which is
very rare, a party who wishes for the Supreme Court
to hear an appeal must file a WRIT of CERTIORARI,
which requests that the Court review the decision of
a lower court. The Court denies writs of certiorari in
the vast majority of cases. The Court today grants ap-
peals in only about one percent of the cases filed be-
fore it each year. If the Court refuses an appeal, it
permits the lower court’s decision to stand but does
not have any other significant meaning (for example,
it is not an affirmance of the lower court’s opinion).
Many of the Supreme Court’s decisions involve in-
terpretation of the Constitution. The Court estab-
lished itself as the primary authority to interpret the
Constitution in the famous case of Marbury v. Madi-
son in 1803. As the primary interpreter, the Court
may invalidate an act of Congress if the act violates
a right granted under the Constitution or Congress
has misused powers granted to it under the Constitu-
tion. The Court does not decide ldquo;political ques-
tions,’’ meaning those questions that another branch
of government is better suited to answer. The Court
also refuses to provide advice to the other branches
of government. This restriction stems from the fa-
mous refusal of Chief Justice John Jay to provide ad-
vice to President George Washington about the im-
plications under the new Constitution of a foreign
policy decision.
Federal Courts of Appeals
Congress through the Judiciary Act of 1891 origi-
nally established the intermediate appellate courts in
the federal judiciary to relieve the caseload on the
Supreme Court justices. Prior to 1891, cases were ap-
pealed routinely to the Supreme Court, which was
required in most cases to hear the appeal. The courts
of appeals now have jurisdiction to hear appeals
from the federal district courts in virtually all cases.
Unlike the Supreme Court, courts of appeals do not
COURTS AND PROCEDURES—FEDERAL COURTS AND JURISDICTIONS
282 GALE ENCYCLOPEDIA OF EVERYDAY LAW
have discretionary jurisdiction to decide whether to
grant an appeal. Other Acts of Congress have ex-
panded the jurisdiction of the courts of appeals to
hear appeals of decisions of federal administrative
agencies. Courts of appeals also have a number of ad-
ditional administrative functions that have been di-
rected by Congress.
The federal court system currently consists of 12
regional circuits, each with one court of appeals.
Eleven of these circuits are numbered (for example,
the Fifth Circuit governs Texas, Mississippi, and Loui-
siana). The twelfth circuit, the Court of Appeals of
the District of Columbia, governs only Washington,
D. C., but hears a number of cases involving federal
agencies. Congress in 1982 created the United States
Court of Appeals for the Federal Circuit, which com-
bined the functions of the United States Court of
Customs and PATENT Appeals and the United States
COURT OF CLAIMS. The Federal Circuit’s jurisdiction,
unlike the regional circuits, is nationwide, though it
only applies to areas of law that are dictated by Con-
gress.
Federal District Courts
The federal court system includes 94 district
courts in the 50 states, Washington, D. C., Puerto
Rico, Guam, U. S. Virgin Islands, and Northern Mari-
nara Islands. Most states have only one judicial dis-
trict. Larger states can have between two and four
districts. The district courts serve as the general trial
courts of the federal system. Each district also has a
bankruptcy unit, as district courts have exclusive ju-
risdiction over bankruptcy cases.
District courts generally have jurisdiction to hear
cases involving federal law and those involving citi-
zens of different states. If a party in a state case can
prove that a federal district court has jurisdiction to
hear a case, the party may remove the case to the
federal court. However, the federal court may abstain
from hearing a case that involves questions of both
federal law and state law. A situation may also arise
where a federal district court may no longer have ju-
risdiction to hear a case because of changes in the
parties to the suit. If a case has been removed to fed-
eral district court and the federal district court lacks
jurisdiction, the court on motion of one of the par-
ties will remand the case to the appropriate state
court.
Specialized Federal Courts
Congress has created a number of courts in the
federal system that have specialized jurisdiction. Un-
like constitutional courts, judges appointed to legis-
lative courts do not enjoy lifetime tenure, unless
Congress specifically authorized a life term. More-
over, judges in legislative courts do not enjoy the
Constitutional prohibition against salary reductions
of judges. A summary of these courts is as follows:
• The United States Court of Appeals for the
Armed Forces reviews court martial convic-
tions from the armed forces. Only the Su-
preme Court of the United States can review
its cases. Judges sitting on this court enjoy
neither life tenure nor protection against sal-
ary reduction.
• The United States Court of Federal Claims
has jurisdiction to hear a broad range of
claims brought against the United States.
The court was called the United States
Claims Court from 1982 to 1992. Many cases
brought before this TRIBUNAL are tax cases,
though the court also hears cases involving
litigants who were federal employees and
other parties with monetary claims against
the United States. Judges sitting on this
court enjoy neither life tenure nor protec-
tion against salary reduction. An adverse de-
cision in this court is appealed to the United
States Court of Appeals for the Federal Cir-
cuit.
• The United States Court of International
Trade has jurisdiction to hear cases involving
customs, unfair import practices, and other
issues regarding international trade. This
court is a constitutional court, so its judges
have lifetime tenure and protection against
salary reduction.
• The United States Court of Appeals for Vet-
erans Claims reviews decisions of the Board
of Veteran Appeals. Appointments of judges
last 15 years. An adverse decision in this
court is appealed to the United States Court
of Appeals for the Federal Circuit.
• The United States Tax Court is a legislative
court that resolves disputes between citi-
zens and the Internal Revenue Service. Ap-
pointments of judges last 15 years. Adverse
decisions are appealed to a court of appeals
in an appropriate regional circuit.
Jurisdiction of Federal Courts
No federal court has general jurisdiction, meaning
that the court could hear any type of case brought
COURTS AND PROCEDURES—FEDERAL COURTS AND JURISDICTIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 283
before it in a particular location. The authority of a
federal court to hear a case must be based on a feder-
al law, whether it is the United States Constitution or
a federal STATUTE. Courts created by Congress with
specialized jurisdiction are, of course, the most limit-
ed to hear a particular case because Congress per-
mits these courts only to hear certain prescribed
cases. The jurisdiction of constitutional courts is usu-
ally limited to one of two types of cases: cases involv-
ing a federal question and cases with parties with di-
versity of citizenship.
Diversity Jurisdiction
Article III of the Constitution provides that a fed-
eral court may hear a controversy between citizens
of different states or citizens of the United States and
citizens of foreign nations. Congress in Title 28 of the
United States Code limits this power by requiring
that the amount in controversy exceed $75,000. The
broad purpose behind diversity jurisdiction is that a
state court may show BIAS towards its own citizen to
the detriment of the citizen from another state. Di-
versity jurisdiction, to say the least, has long been a
source of controversy.
One initial question in a diversity case is whether
each of the parties does, in fact, reside in different
states. For individuals, the question focuses on the
individual’s domicile rather than mere residence in
a state. Thus, for example, if a party has a residence
in both Texas and California, but his true domicile is
Texas, then the party will be considered a citizen of
Texas rather than a citizen of both states. Diversity
jurisdiction requires complete diversity by all plain-
tiffs and all defendants in the suit, though there are
limitations to this rule in the United States Code. For
example, federal courts may have diversity jurisdic-
tion to hear a case because all parties have diverse
citizenship, but the court will not have supplemental
jurisdiction over parties that are joined as plaintiffs
in the case or over parties that intervene as plaintiffs
in the case.
More difficult questions often arise when a corpo-
ration or association is a party to the suit. The right
of a corporation is, in many respects, no different
than the rights of an individual, since a corporation
can sue or be sued. However, a corporation does not
have a ‘‘domicile’’ that is similar to an individual. For
diversity jurisdiction purposes, Congress provides
that a corporation is a citizen in the state in which
it is incorporated and in the state where it has its
principal place of business. For smaller
CORPORATIONS, this question is usually not difficult,
especially if the corporation has most of its offices
and business in a single state. However, large nation-
al corporations may have offices in every state, so the
question is much more complex. For these types of
corporations, courts look to the so-called ‘‘nerve
center’’ of the corporation, meaning the state in
which most of the corporation’s business is conduct-
ed.
Federal-Question Jurisdiction
The Constitution provides that federal courts
have the power to hear cases that arise under the
Constitution, laws, or treaties of the United States.
Congress has granted this jurisdiction to federal dis-
trict courts in Title 28 of the United States Code. The
question of whether a case arises under a federal law
is often clouded when a case involves issues with the
application of both state and federal law. If a case pri-
marily involves an issue of state law, but it also in-
volves a remote federal issue, then the federal court
is not the proper forum, and the case will be dis-
missed or remanded to state court. However, if a
case involves important issues of both state and fed-
eral law, Congress permits a federal court, with some
exceptions, to invoke supplemental jurisdiction to
hear both the state claim and the federal claim in the
same case.
Federal question jurisdiction must be based on
the complaint of the plaintiff, not on the possibility
of a federal defense. This limitation stems from the
famous 1908 case of Louisville & Nashville Railroad
v. Mottley, where the plaintiff anticipated a federal
defense to a state law contract case. The Supreme
Court held that the plaintiff’s cause of action stated
in the complaint must be based on federal law. This
limitation is called the well-pleaded complaint rule.
Since nothing prohibits state courts from hearing
cases involving federal laws, federal courts are not re-
quired to hear all cases that involve federal laws.
Admiralty and Maritime Cases
Since the development of the Constitution, feder-
al courts have had jurisdiction to hear admiralty and
maritime cases. In contract cases, the question to de-
termine jurisdiction is whether a contract relates to
maritime commerce, not the place where a contract
was made or was to be performed. However, a con-
tract to build or sell a ship does not give rise to admi-
ralty jurisdiction. Admiralty jurisdiction arises in tort
cases if the tort occurred in navigable waters or if a
vessel has caused injuries on land.
COURTS AND PROCEDURES—FEDERAL COURTS AND JURISDICTIONS
284 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Bankruptcy
Federal courts have exclusive jurisdiction over
bankruptcy cases. Each federal district court has a
bankruptcy unit. Bankruptcy actions arise under
Title 17 of the United States Code and generally in-
corporate all claims brought by a CREDITOR against
the DEBTOR in the bankruptcy action. The federal
bankruptcy laws differ from other state laws that gov-
ern the relationship between debtor and creditor, so
certainly not all debtor-creditor cases are heard in
federal court.
Other Areas of Federal Jurisdiction
The Constitution and federal statutes provide fed-
eral jurisdiction in a number of areas in addition to
those discussed above. Such areas include, for exam-
ple, prize cases (those determining the rights to
cargo and ships captured at sea), and COPYRIGHT, pa-
tent, and trademark cases.
Jurisdictions of Federal Courts in the
U. S. States and Territories
Each state, the District of Columbia, and Puerto
Rico contain between one and four federal districts,
with the number of authorized judgeships in each
district varying. Other territories, including Guam,
the Virgin Islands, and the Northern Mariana Island,
contain district courts as well. Each state also falls
within one of the twelve circuits.
ALABAMA: Located in the 11th Circuit, the state is di-
vided into three federal districts: Northern (Birming-
ham), Middle (Montgomery), and Southern (Mo-
bile).
ALASKA: Located in the 9th Circuit, the state has one
federal judicial district, based in Anchorage.
ARKANSAS: Located in the 8th Circuit, the state is di-
vided into two federal districts: Eastern (Little Rock)
and Western (Fort Smith).
CALIFORNIA: Located in the 9th Circuit, the state is
divided into four districts: Northern (San Francisco),
Eastern (Sacramento), Central (Los Angeles), and
Southern (San Diego).
COLORADO: Located in the 10th Circuit, the state
has one federal judicial district, based in Denver.
CONNECTICUT: Located in the 2nd Circuit, the state
has one federal judicial district, based in New Haven.
DELAWARE: Located in the 3rd Circuit, the state has
one federal judicial district, based in Wilmington.
DISTRICT OF COLUMBIA: Located in the D. C. Cir-
cuit, Washington, D. C., has its own federal district.
FLORIDA: Located in the 11th Circuit, the state has
three federal judicial districts: Northern (Tallahas-
see), Middle (Jacksonville), and Southern (Miami).
GEORGIA: Located in the 11th Circuit, the state has
three federal judicial districts: Northern (Atlanta),
Middle (Macon), and Southern (Savannah).
GUAM: The territory contains a federal district, based
in Agana.
HAWAII: Located in the 9th Circuit, the state has one
federal district, based in Honolulu.
IDAHO: Located in the 9th Circuit, the state has one
federal district, based in Boise.
ILLINOIS: Located in the 7th Circuit, the state has
three federal districts: Northern (Chicago), Southern
(East Saint Louis), and Central (Springfield).
INDIANA: Located in the 7th Circuit, the state has
two federal districts: Northern (South Bend) and
Southern (Indianapolis).
IOWA: Located in the 8th Circuit, the state has two
federal districts: Northern (Cedar Rapids) and South-
ern (Des Moines).
KANSAS: Located in the 10th Circuit, the state has
one federal district, based in Wichita.
KENTUCKY: Located in the 6th Circuit, the state has
two federal districts: Eastern (Lexington) and West-
ern (Louisville).
LOUISIANA: Located in the 5th Circuit, the state has
three federal districts: Eastern (New Orleans), Mid-
dle (Baton Rouge), and Western (Shreveport).
MAINE: Located in the 1st Circuit, the state has one
federal district, based in Portland.
MARYLAND: Located in the 4th Circuit, the state has
one federal district, based in Baltimore.
MASSACHUSETTS: Located in the 1st Circuit, the
state has one federal district, based in Boston.
MICHIGAN: Located in the 6th Circuit, the state has
two federal districts: Eastern (Detroit) and Western
(Grand Rapids).
MINNESOTA: Located in the 8th Circuit, the state has
one federal district, based in St. Paul.
MISSISSIPPI: Located in the 5th Circuit, the state has
two federal districts: Northern (Oxford) and South-
ern (Jackson).
COURTS AND PROCEDURES—FEDERAL COURTS AND JURISDICTIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 285
MISSOURI: Located in the 8th Circuit, the state has
two federal districts: Eastern (Saint Louis) and West-
ern (Kansas City).
MONTANA: Located in the 9th Circuit, the state has
one federal district, based in Billings.
NEBRASKA: Located in the 8th Circuit, the state has
one federal district, based in Omaha.
NEVADA: Located in the 9th Circuit, the state has
one federal district, based in Las Vegas.
NEW HAMPSHIRE: Located in the 1st Circuit, the
state has one federal district, based in Concord.
NEW JERSEY: Located in the 3rd Circuit, the state has
one federal district, based in Newark.
NEW MEXICO: Located in the 10th Circuit, the state
has one federal district, based in Albuquerque.
NEW YORK: Located in the 2nd Circuit, the state has
four federal districts: Northern (Syracuse), Eastern
(Brooklyn), Southern (New York City), and Western
(Buffalo).
NORTH CAROLINA: Located in the 4th Circuit, the
state has three federal districts: Eastern (Raleigh),
Middle (Greensboro), and Western (Asheville).
NORTH DAKOTA: Located in the 8th Circuit, the
state has one federal district, based in Bismarck.
NORTH MARINA ISLANDS: The territory contains a
federal district, based in Saipan.
OHIO: Located in the 6th Circuit, the state has two
federal districts: Northern (Cleveland) and Southern
(Columbus).
OKLAHOMA: Located in the 10th Circuit, the state
has three federal districts: Northern (Tulsa), Eastern
(Muskogee), and Western (Oklahoma City).
OREGON: Located in the 9th Circuit, the state has
one federal district, based in Portland.
PENNSYLVANIA: Located in the 3rd Circuit, the state
has three federal districts: Eastern (Philadelphia),
Middle (Scranton), and Western (Pittsburgh).
PUERTO RICO: The territory contains a federal dis-
trict, based in Hato Rey.
RHODE ISLAND: Located in the 1st Circuit, the state
has one federal district, located in Providence.
SOUTH CAROLINA: Located in the 4th Circuit, the
state contains one federal district, located in Colum-
bia.
SOUTH DAKOTA: Located in the 8th Circuit, the
state contains one federal district, based in Sioux
Falls.
TENNESSEE: Located in the 6th Circuit, the state
contains three federal districts: Eastern (Knoxville),
Middle (Nashville), and Western (Memphis).
TEXAS: Located in the 5th Circuit, the state contains
four federal districts: Northern (Dallas), Southern
(Houston), Eastern (Tyler), and Western (San Anto-
nio).
UTAH: Located in the 10th Circuit, the state contains
one federal district, based in Salt Lake City.
VERMONT: Located in the 2nd Circuit, the state con-
tains one federal district, based in Burlington.
VIRGIN ISLANDS: The territory contains a federal
district, based in Saint Thomas.
VIRGINIA: Located in the 4th Circuit, the state con-
tains two federal districts: Eastern (Alexandria) and
Western (Roanoke).
WASHINGTON: Located in the 9th Circuit, the state
contains two federal districts: Eastern (Spokane) and
Western (Seattle).
WEST VIRGINIA: Located in the 4th Circuit, the state
contains two federal districts: Northern (Elkins) and
Southern (Charleston).
WISCONSIN: Located in the 7th Circuit, the state
contains two federal districts: Eastern (Milwaukee)
and Western (Madison).
WYOMING: Located in the 10th Circuit, the state
contains one federal district, based in Cheyenne.
Additional Resources
Desk Reference on American Courts. Barnes, Patricia G.,
CQ Press, 2000.
The Federal Courts. Carp, Robert A., and Ronald Stidham,
CQ Press, 2001.
Federal Jurisdiction in a Nutshell. Currie, David P., West
Group, 1999.
Understanding Federal Courts and Jurisdiction. Mul-
leniz, Linda, Martin Redish, and Georgene Vairo, Mat-
thew Bender, 1998.
U. S. Code, Title 28: Judiciary and Judicial Procedure. U.
S. House of Representatives, 1999. Available at http://
uscode.house.gov/title_28.htm.
COURTS AND PROCEDURES—FEDERAL COURTS AND JURISDICTIONS
286 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Organizations
Administrative Offices of the Courts
Thurgood Marshall Federal Judiciary Building,
Office of Public Affairs
Washington, DC 20544 USA
Phone: (202) 502-2600
URL: http://www.uscourts.gov/
Federal Judicial Center (FJC)
Thurgood Marshall Federal Judiciary Building
One Columbus Cir. NE
Washington, DC 20002 USA
Phone: (202) 502-4000
URL: http://www.fjc.gov/
Supreme Court of the United States
U. S. Supreme Court Building
One First Street, N.E.
Washington, DC 20543
Phone: (202) 479-3000
URL: http://www.supremecourtus.gov/
United States Sentencing Commission (USSC)
Office of Public Affairs
One Columbus Circle, NE
Washington, DC 20002-8002
Phone: (202) 502-4500
URL: http://www.ussc.gov/
COURTS AND PROCEDURES—FEDERAL COURTS AND JURISDICTIONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 287
This Page Intentionally Left Blank
COURTS AND PROCEDURES
JURIES
Sections within this essay:
• Background
- Historical Roots in England
- Development in America from Colo-
nial Times
- Grand Juries as Distinct from Civil
and Criminal Juries
- Constitutional Right to a Jury Trial
• How People are Chosen for a Jury Pool
- Diversity and Cross Section of Com-
munity Requirement
• Selection Process at the Courthouse
- Disqualification Grounds for Jury
Service
- Exemptions from Jury Service
- PeremptoryPreemptory Challenges
- Use of Jury Consultants
• The Function of the Jury at the Trial
- Role as a Factfinder
- How Juries Weigh the Evidence
- Standards of Proof Used
• Jury Instructions and Their Purpose
- Special Kinds of Instructions Limit-
ing the Discretion of the Jury
- Jury Nullification
• Issues Pertaining to the Jury’s Performance
of Its Duties
- The Hung Jury and the Unanimous
Requirement
- Judge’s Discretion to Set Aside Ver-
dicts
- Jury Sequestration
- Juror Misconduct
- Notetaking by Jurors
- Questioning of Witnesses by Jurors
• Future Prospects of the Jury System
- Decline in the Use of Jury Trials
- Prospects for Reform
• Additional Resources
Background
Historical Roots in England
The idea for disputes to be resolved by a jury
began out of necessity. In medieval England, it had
been increasingly difficult to have a peaceful society
when the only way of resolving disputes was by force.
The first time the idea of a right to a trial by jury was
mentioned was in the Magna Carta signed by King
John in 1215. However, this new right to a jury trial
did not apply to everyone in England at that time.
Only knights and landowners were entitled to the
right not to have their lives or property taken with-
out a HEARING before a jury of their peers.
Development in America from Colonial
Times
The most famous incident in America that gave a
tremendous boost to the idea of the right to have a
jury trial occurred in New York in 1734. At that time
New York was one of thirteen British colonies admin-
istered by a royal governor appointed by the king of
England. Peter Zenger, a journalist, had written an ar-
ticle ridiculing this official. The British authorities in
response charged Zenger with seditious libel. Zeng-
er’s lawyer, Andrew Hamilton, put on a defense stat-
ing that his client was not guilty because the state-
ments in Zenger’s article were true.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 289
However, there were two problems with Hamil-
ton’s trial strategy. First, he was unable to bring in
witnesses who could TESTIFY as to the truth of Zeng-
er’s article. More important, as the judge pointed
out, this defense could not be used for the crime
with which Zenger was charged. As an alternative,
Hamilton said that the question of whether Zenger
had committed seditious libel should not be decided
by the judge but should be left to the jury to decide.
The judge capitulated to Hamilton’s request and per-
mitted the jury to return a not guilty verdict. The jury
in this case took this action based on the principle
that a trial cannot be fair if the ACCUSED is prevented
by the court from putting on a defense.
From colonial times until well into the twentieth
century, not all citizens of the various states were
universally allowed to serve on a jury. At first, only
white men owning property were permitted to be on
a jury. After the United States became a nation, states
were allowed to enact their own restrictions on jury
service based on race, gender, and ownership of
property. Some of those denied the right to serve on
a jury did not see these restrictions removed until
well after they were given the right to vote.
Because in America’s early history there were so
few lawyers who were specifically trained in the law,
juries exercised the power to decide not only factual
questions concerning a case but also questions as to
how the law should be interpreted in applying it to
the facts of the case. Judges on their part were al-
lowed to make comments regarding the EVIDENCE
presented at trial. Today juries in all states can only
decide questions of fact, such as whether a car ran
a red light prior to an accident. They can no longer
decide questions of law which consist of what the law
is on a particular issue of the trial and how it is to be
interpreted so it can be correctly applied to the facts
of the case. Judges can no longer comment on the
evidence because this is seen as preventing the jury
from being IMPARTIAL.
In criminal trials, it is always required that jury ver-
dicts of guilty or innocent must be unanimous. Be-
ginning in California in 1879, this requirement was
phased out for civil trials, proceedings that do not in-
volve criminal accusations, such as whether a driver
was not careful enough in backing out of his drive-
way and injured a pedestrian.
Grand Juries as Distinct from Civil and
Criminal Juries
A GRAND JURY is formed only in criminal cases. The
purpose of the grand jury is not to determine wheth-
er a DEFENDANT is guilty or not. This group of usually
23 people meets to determine whether persons sus-
pected by police as responsible for a crime should be
indicted, allowing them to be brought to trial before
a regular jury consisting of six to twelve persons.
Grand juries are required by the Fifth Amendment of
the U. S. Constitution which says a person suspected
of a crime must be indicted before he is tried. This
action is considered a safegurard against prosecuting
a person without any legitimate reason.
Constitutional Right to a Jury Trial
Three separate provisions of the U. S. Constitu-
tion provide for the right to a trial by jury. Article III,
Sec. 2 provides: ‘‘The trial of all crimes shall be by
jury and such trial shall be held in the state where the
said crimes have been committed.’’ The Sixth
Amendment says: ‘‘In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public
trial by an impartial jury of the state where the said
crimes shall have been committed.’’ Finally, for civil
matters, the Seventh Amendment provides: ‘‘In all
suits at COMMON LAW, where the value in controversy
shall exceed twenty dollars, the right of trial by jury
shall be preserved and no fact tried by a jury shall be
otherwise reexamined by an court of the United
States.’’
The first two above provisions as to criminal trials
greatly overlap. The Sixth Amendment was added as
part of the BILL OF RIGHTS that would be guaranteed
by the Constitution. However, it has only been rela-
tively recently has this right been mandatory in both
federal and state courts. As to the Seventh Amend-
ment which covers civil trials, this provision only ap-
plies to federal courts which deal only with laws
passed by Congress and signed into law by the presi-
dent. According to the U. S. Supreme Court in a 1999
decision, the Seventh Amendment does not apply in
state courts.
How People are Chosen for a Jury Pool
Diversity and Cross Section of Community
Requirement
The U. S. Supreme Court has repeatedly ruled it
is necessary for a jury to be comprised of a ‘‘fair cross
section of the community’’ in order to satisfy the trial
right guaranteed by the Sixth Amendment of impar-
tiality. The Federal Jury Selection and Service Act of
1968 was written for this same purpose. Thus, a jury
pool of persons eligible to serve reflects the spec-
trum of society.
COURTS AND PROCEDURES—JURIES
290 GALE ENCYCLOPEDIA OF EVERYDAY LAW
In order to comply with the U. S. Supreme Court
rulings and the above federal STATUTE, all the states
have had to change their laws to insure that a broad
cross section will make up the jury pool. Typically
names appearing on voter registration lists for each
locality are drawn. Many people who are otherwise
eligible are not included because they have moved
to another locality or state. In order to help solve this
problem, names for juror pools are drawn from the
list of licensed drivers for that state. Over half the
states have made this change, and some have gone
even further and have drawn names from lists of cus-
tomers for utilities and even welfare recipients. This
initial list is referred to as a source list.
From the source list, a locality randomly draws a
second list referred to as ‘‘master wheel’’ or ‘‘quali-
fied wheel’’ depending upon the statute for that
state. These lists are replenished at intervals as re-
quired by the law for that state. Questionnaires are
sent to those on the ‘‘wheel’’ lists in order to deter-
mine whether a particular individual is qualified to
serve on a jury. Because between one– quarter to
one–half of these forms are not returned, some juris-
dictions will send a notice requiring such persons to
explain why they have not responded.
Selection Process at the Courthouse
Disqualification Grounds for Jury Service
Each state by law lists what reasons disqualify
someone from jury service. Many of these reasons
are included because they may prevent explain why
a person cannot listen to TESTIMONY and other evi-
dence with an open mind. Prior contact with one of
the parties or lawyers connected with the case as well
as knowledge obtained prior to the trial is sufficient
reason to excuse a person from serving on the jury
for a particular case. Statements made by jurors while
they are being questioned by the attorneys for both
sides which indicate they are biased in favor of or
against one of the parties have the same result as
DISCOVERY that a potential juror has a prior FELONY
CONVICTION. In criminal trials it is common for an in-
dividual to be excused because of a relationship with
a witness in the case.
Exemptions from Jury Service
Formerly it was common for people otherwise
qualified to serve on a jury to be exempt based on
their occupation. Prior to a recent change in the law,
New York had recognized more than a dozen such
exemptions to include lawyers, doctors, clergy, den-
tists, pharmacists, optometrists, psychologists, podi-
atrists, nurses, embalmers, police officers, and fire-
fighters. The reason given for these exemptions were
that each of these groups performs functions neces-
sary to the PUBLIC INTEREST. As of 2002, 26 states have
eliminated occupational exemptions while an addi-
tional nine have placed strict limitations on them.
Exemptions are also granted for business or finan-
cial hardship according to the circumstances of that
individual. A judge may grant a business hardship ex-
emption if they are convinced that jury service would
result in the business closing permanently. Financial
exemptions are also given to employees of private
businesses since in most states the employer is not
required to pay them for the time spent on a jury.
Other exemptions also granted on a case by case
basis at the discretion of the judge or court officials
include incapacitating physical or mental illnesses,
and extreme inconvenience such as having to travel
a much greater distance to the courthouse.
Preemptory Challenges
When selecting a jury, attorneys for both sides ask
questions of each person sent to that courtroom to
be considered for service on that case. The questions
asked are designed to reveal if a particular potential
juror has either a conscious or unconscious BIAS af-
fecting their ability to be impartial. Because these
questions may be intrusive, and include such areas
as reading habits, favorite television shows, amount
of income, and feelings towards different racial, eth-
nic, or other groups, it is not uncommon for individ-
uals required to answer such inquiries to be less than
truthful or to give general answers that may conceal
a biased attitude. A good trial lawyer senses bias with-
out needing it stated explicitly.
States give each side a designated number of per-
sons they can have excused without having to give
reason. When a person is excused in this way, the at-
torney is said to have exercised a preemptory chal-
lenge. Because personal bias is often difficult to de-
tect, the PEREMPTORY CHALLENGE allows lawyers to act
on their instincts in order to obtain impartial juries.
Sometimes a judge will grant one side more pre-
emptory challenges than is allowed by state law. The
attorney who objects to this action and then loses his
case will not be able to have the trial judge reversed
by a higher court unless that lawyer has exhausted
all preemptory challenges and can show to that be-
cause they were not granted the same number of
preemptory challenges, one or more persons they
COURTS AND PROCEDURES—JURIES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 291
would have found to be objectionable was able to
serve on that jury.
In recent years, two decisions by the U. S. Su-
preme Court have placed limits on the use of pre-
emptory challenges if the complaining side or party
is able to prove that the use of preemptory chal-
lenges by the opposing lawyer were designed to ex-
clude persons from a jury based on their race and
gender. In the first of these cases, an African-
American criminal defendant named Batson was con-
victed of BURGLARY. On appeal to the U. S. Supreme
Court, his lawyer argued the prosecution used his
preemptory challenges so that no black person in
the jury pool served on the jury. The Supreme Court
ruled in Batson’s favor for three reasons. First, ex-
cluding jurors on the basis of race denies a defendant
the right to an impartial trial since it works against
the cross section of the community requirement for
jury membership. Second, the excluded jurors are
denied the right to take part in the judicial process.
Third, this use of peremptory challenges is harmful
to the local community because it encourages its citi-
zens to believe that a fair trial cannot be obtained
there.
However, the Supreme Court made clear that fu-
ture defendants in seeking to have trial verdicts
against them overturned on appeal to a higher court
would have to prove to that court all of the following:
first, the defendant is a member of an identifiable ra-
cial group. Second, the prosecution used preempto-
ry challenges to prevent those of the defendant’s
race from serving on the jury. Third, the lawyer for
the defendant must show that the facts and circum-
stances of the case imply the prosecution did this in-
tentionally.
Even though the defense attorney is faced with
having to prove all of the above, the PROSECUTOR
must show the peremptory challenges were applied
neutrally. Non-African American defendants have not
been successful in challenging their convictions be-
cause U. S. Supreme Court decisions have declined
to apply Batson v. Kentucky to their racial group.
The principles in Batson have since been made appli-
cable in civil as well as criminal trials.
In 1994, eight years after Batson was decided, the
U. S. Supreme Court said preemptory challenges
could not be used to exclude members of a particular
gender from jury service. In J. E. B. v. Alabama, the
state agency regulating the welfare of children filed
a PATERNITY action against J. E. B. for failing to pay the
CHILD SUPPORT he owed to the mother. Alabama used
its preemptory strikes to prevent nine men from
serving on the jury eventually resulting in a panel
consisting entirely of women. The jury found J. E. B.
guilty of the charge, and he successfully argued for
the application of Batson to his case on grounds that
the use of preemptory challenges based on gender
violated the constitutional principle that persons
should not be discriminated against or treated un-
equally on the basis of sex.
However, it is now questionable how useful Bat-
son and J. E. B. will be in future cases for defendants.
In 1995, in Puckett v. Elam, the Supreme Court said
that a prosecutor’s reason for excluding a juror on
a preemptory challenge does not have to make any
sense so long as it is applied neutrally as to the race
and gender of the defendant. Justice John Paul Ste-
vens in disagreeing with other justices on the Su-
preme Court, complained that the Court had made
its decisions in Batson and J. E. B. meaningless.
Some state and federal courts lower than the U.
S. Supreme Court have said preemptory challenges
cannot be used to exclude persons of particular reli-
gious groups. Other courts on these levels have
ruled in the opposite way. The U. S. Supreme Court
has not yet resolved the difference of opinion among
the courts on this issue.
Use of Jury Consultants
There are two scenarios in which attorneys may
consider using a jury consultant to further assist
them in selecting jurors. First, if their client is a celeb-
rity, there may be very strongly divided opinions
among potential jurors on whether they like or dis-
like that client. This would be a great obstacle to find-
ing at least an impartial jury. Second, even if their cli-
ent does not provoke any strong sentiment, if he has
a great deal to lose, they may still want to improve
the probability of a favorable outcome. In either in-
stance, to use a jury consultant constitutes an addi-
tional expense. The average cost is $250 per hour,
and it could total anywhere from $10,000 to
$250,000.
Most jury consultants have backgrounds in law,
psychology, or sociology. In spite of the expertise a
jury consultant may have, the profession is largely
unregulated. Although jury consultants claim to be
accurate in their appraising potential jurors, many
scholars are skeptical. Another criticism is that using
a jury consultant gives the general public the impres-
sion that a favorable verdict can be purchased if the
right jury is selected. In light of this criticism, some
COURTS AND PROCEDURES—JURIES
292 GALE ENCYCLOPEDIA OF EVERYDAY LAW
judges have taken the initiative to have consultants
appointed for indigent defendants.
The primary purpose of hiring a jury consultant is
to help uncover hidden bias of potential jurors. Be-
cause preemptory challenges are limited, lawyers
may be unsure about some of those questioned. The
job of jury consultants is to give attorneys the criteria
necessary for the ideal jury for their clients and to as-
sist in determining what biases do not fit that criteria.
A good illustration of this principle is the trial of
Daniel and Philip Berrigan in 1972, the first known
use of jury consultants. The Berrigan brothers were
accused of conspiring to plan violent demonstrations
against the Vietnam War. The defense attorneys de-
cided that in order to have the best jury possible they
should poll those persons likely to qualify as jurors
in Harrisburg, Pennsylvania, the site of the trial. The
purpose of this polling was to determine which de-
mographic groups would be most sympathetic to
their clients. The results led the defense attorneys to
conclude that Episcopalians, Presbyterians, and
other Protestant denominations with a fundamental-
ist outlook would favor the prosecution, as would
college graduates because of their support for the
position of the U. S. Government on the Vietnam
conflict. Accordingly, the defense was successful in
having a jury selected that consisted of entirely blue
collar workers who would likely not have graduated
from college and who were also of a different de-
nomination from those listed above. This jury dead-
locked at 10-2 in favor of ACQUITTAL. The government
afterwards declined to retry the case.
There are two kinds of techniques jury consul-
tants use. The first category is pretrial research. The
easiest research in this category is attitude surveys
conducted in phone or in person as was done in the
Berrigan trial. A second technique is to form a trial
simulation with a group of people representative of
what the jury picked will most resemble. At the end
of this mock trial, the participants are surveyed as to
how persuasive each side was in general and in its
use of the evidence. Also, a focus group may be
formed and the facts of the case and the position of
each side will be explained to it. Those in the focus
group will be asked how they would decide the case
and their opinion on which side had the best argu-
ments supporting their position. A third method is
personal background research made through credit
checks, hand writing analysis, and an EXAMINATION of
property and tax records.
A second category relates to what they do when
the trial takes place. One commonly used method is
for the consultant to prepare a questionnaire for the
attorney designed to uncover juror biases. Another
is for the consultant to observe the facial expressions
and posture of those being considered for the jury;
these unconscious reactions may indicate whether
the response to the questions of the lawyer are sin-
cere or misleading. A third technique is to observe
the jury during breaks for lunch; if certain persons
on the jury always eat together this may indicate that
alliances have formed that could impact how the ju-
ries will deliberate once the case is given to them to
decide and could help determine the verdict they
reach. In some cases, consultants will recruit a shad-
ow jury resembling by various demographic factors
the one actually deciding the case. This shadow jury
will be interviewed during the trial for the purpose
of determining how the real jury is perceiving their
side.
Moreover, some jury consultants believe that peo-
ple in general fall into one of two groups: Those who
conclude that what happens to a person is deter-
mined by the person’s reaction to those events, and
the rest who believe what happens to an individual
is dictated by circumstances and context.
The Function of the Jury at the Trial
Role as a Factfinder
In every case there are allegations made. In a civil
case, they are made by the party known as the plain-
tiff while in a case involving criminal law, the party
making the charges or allegations is the prosecutor
who is employed by the state JURISDICTION in which
he practices. If the case involves federal law, the
prosecutor is the U. S. JUSTICE DEPARTMENT, a federal
agency.
In order to win the case, the plaintiff, or whoever
is making the allegations, must make his case by
showing the allegations are true according to a given
standard of proof to the satisfaction of a jury. For ex-
ample, Smith alleges that Jones negligently backed
his car into Smith, breaking his leg. In order to prove
the allegations to be true, Smith must present evi-
dence based on facts and testimony.
The facts that Smith is able to prove are true are
then applied to see if the four elements necessary for
Smith to win are proven. These elements in this
NEGLIGENCE claim are the issues that the judge will
submit to the jury. The issues are: did Jones owe a
COURTS AND PROCEDURES—JURIES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 293
duty to be reasonably careful to Smith, did Jones
breach or violate that duty, was this violation by
Jones of his duty to Smith the cause of Smith’s bro-
ken leg, and did Smith actually have his leg broken.
In its role as a fact finder, a jury decides, based on
the evidence presented, what is the truth in regard
to the facts of the case. The jury will decide on the
above four issues based on the facts they have found
to be true, and if their answer is yes to all four of
these issues, Smith wins. In determining what their
conclusion is to each of these issues, the jury is given
considerable discretion even when evidence regard-
ing the same fact conflicts to the extent that opposite
inferences could be drawn. This discretion even ex-
tends to cases in which the facts are undisputed; dif-
ferent inferences could still be found by a rational
jury.
However, the judge still has discretion to with-
hold from the jury the right to decide a particular
issue if he believes the evidence is insufficient for the
jury to come to a reasonable conclusion. Because
each of the issues that Smith must prove in his favor
to the jury are essential to his case, a decision by the
judge that the evidence presented is not enough to
support only one of the four issues would result in
Smith losing the case.
How Juries Weigh the Evidence
Allowing evidence in the form of facts, such as tes-
timony, to be admitted at trial by the judge depends
on whether it is pertinent or relates to the issue the
jury is asked to decide and whether it has probative
value, meaning it helps to determine whether a fact
is true or false. Once the evidence is actually admit-
ted and the jury tries to reach a verdict they must
evaluate this evidence as to its CREDIBILITY. For exam-
ple, if a witness saw Smith being struck by Jone’s car,
the jury will determine whether the facts WARRANT
their accepting his testimony as being a true account
of what occurred, issues such as whether the witness
was close enough to see what had occurred.
Standards of Proof Used
In a civil court case such as one of Smith, the
plaintiff, versus Jones, the defendant, the burden is
on the plaintiff to show or prove by the facts pres-
ented into evidence he has been injured by the de-
fendant. In other kinds of civil lawsuits, such as those
involving contracts between the plaintiff and defen-
dant, the plaintiff still has the burden. The standard
of proof that the plaintiff must meet is the prepon-
derance of the evidence. This means that a fact put
into evidence in supporting Smith’s contention
Jones was negligent is more likely to be true than
false. The degree to which the jury must believe a
fact is more likely to be true than not true in order
to meet this standard of proof need only be by the
smallest degree; 51 percent would be sufficient.
Sometimes the rules of evidence in a given case
will have a standard of proof known as clear and con-
vincing evidence. In order to show that a fact pres-
ented into evidence is true according to this stan-
dard, the plaintiff Smith must show there is a high
probability that a given fact is true or that a juror ac-
cording to the evidence presented would come to
firmly believe the fact alleged by Smith was true. This
is a greater degree of proof than preponderance of
the evidence, but it is not as high as the BEYOND A REA-
SONABLE DOUBT standard required in criminal cases.
In a criminal trial, the plaintiff is not a person or
corporation, but the state or federal government as
represented by the prosecutor. The prosecutor, re-
gardless of his title, has the responsibility of enforc-
ing the criminal laws of his jurisdiction. The elements
of the allegations a prosecutor must prove will vary
with the offense charged, but in any event, it must
be proven the defendant committed the offense he
is accused of and that he intentionally did so willing-
ly. Because the consequences of a criminal convic-
tion are more severe than in a civil lawsuit, the high-
est standard of proof, beyond a REASONABLE DOUBT,
is required. This burden of proof is always on the
prosecution because a criminal defendant can re-
main silent if he chooses. This standard means the
prosecutor must convince the jury to the point
where they firmly believe the defendant is guilty as
charged.
Jury Instructions and Their Purpose
A jury instruction is a guideline given by the judge
to the jury about the law they will have to apply to
the facts they have found to be true. The purpose of
the instructions is to help the jury arrive at a verdict
that follows the law of that jurisdiction. In his instruc-
tions a judge may explain the legal principles pertain-
ing to the subject matter of the case, make it clear
to the jury the legal issues they must decide in order
to arrive at a verdict, point out what each side must
prove in order to win, and summarize the evidence
he sees as relevant and explain how it relates to the
issues they must decide. For example, do the facts
admitted as evidence and found credible by the jury
according to the preponderance of the evidence
combined with the application of the legal principles
COURTS AND PROCEDURES—JURIES
294 GALE ENCYCLOPEDIA OF EVERYDAY LAW
of negligence law warrant a finding by the jury that
Smith owed a duty to Jones to be reasonably careful
in operating his car?
In giving these instructions, the judge binds the
jury. The judge makes clear to the jurors that they
are to apply the law to the facts as he gives it to them;
they are not to substitute their own judgment as to
whether a different law should be applied or whether
the law as has been explained to them is unjust. The
instructions are to be given in terms a layperson can
easily understand. In order to help the jury under-
stand the instructions, the judge may give pre-
instructions prior to the time immediately following
the presentation of both sides of the case. However,
the judge is forbidden to comment on the evidence
presented in the case. It is the jury’s responsibility to
independently evaluate the evidence.
Special Kinds of Instructions Limiting the
Discretion of the Jury
The judge has a number of devices by which he
can limit the discretion of the jury in applying the in-
structions to their deliberations. Through an addi-
tional instruction, the judge may supplement in-
structions he has already given. These instructions
are usually given at the request of the jury to clarify
some point regarding the law given in a previous in-
struction they do not understand. If a judge gives a
mandatory instruction, this requires the jury to reach
a verdict in favor of a particular party if the evidence
indicates that a particular set of facts is true. Through
a peremptory instruction, a jury is directed to find in
favor of a particular party regardless of how credible
they regard the evidence to be. The judge is taking
the case away from the jury because he believes a
reasonable juror could not rule in favor of the other
party.
Jury Nullification
Jury nullification is the right of a jury in a criminal
case to disregard the evidence admitted at trial and
the law as explained to them by the judge and to give
a verdict of not guilty for reasons having nothing to
do with the case. There may be several reasons for
ignoring the evidence and the instructions of the
judge. First, they may wish to use a not guilty verdict
to communicate to the community their views on a
social issue outside the scope of the trial. Second,
having to convict a defendant may offend the jurors’
sense of justice and fair play or jurors may believe the
law itself is immoral.
A judge is powerless to SANCTION the jury in any
way. The jury is not required to give any reason at all
for its decision which cannot be appealed by the
prosecution to a higher court because of the DOUBLE
JEOPARDY Clause of the Constitution that says a de-
fendant is prohibited from being tried more than
once for the same crime.
The right of jury nullification originated in what is
referred to as Bushell’s Case, an English court deci-
sion from 1670. William Penn, the eventual founder
of Pennsylvania, was accused of holding an illegal
meeting. The jury, based on inconclusive evidence,
acquitted Penn and his co-defendant Bushell. The
judge retaliated against the jury by fining and impris-
oning them. After several weeks, Bushell asked for an
appeal of the trial judge’s action against the jurors.
The judge for a higher court set the jury free and said
that because reasonable people can look at the same
evidence and come to a different conclusion, juries
are free to decide as they see fit regardless of wheth-
er the judge believes they had an legally adequate
reason.
Although this case is English and would not nor-
mally be binding in the United States, U. S. courts
over a long period of time consistently upheld the
right of juries to use the right of nullification. Howev-
er, the use of this device by juries seems at least on
the surface to apply only to criminal cases. Some
scholars contend that it takes place in secret because
the jury proceedings are confidential but have been
unable to document any case that expressly endorse
nullification in a civil trial.
Issues Pertaining to the Jury’s
Performance of Its Duties
The Hung Jury and the Unanimous
Requirement
It is required that in order for a jury to reach a ver-
dict, everyone must agree to the decision made. Una-
nimity is required in all federal court civil and crimi-
nal trials, in all state court criminal trials, and in most
civil trials in those courts. Sometimes the entire jury
is not able to agree on the verdict, resulting in a
deadlocked or HUNG JURY.
When judges are informed this situation has oc-
curred, they tell the jury to continue the delibera-
tions because the alternative is to have the entire
case tried over again with a new jury. In order to
push the jury into arriving at a verdict, judges urge
those in the minority to reconsider their positions by
reexamining the evidence carefully and to ask them-
selves whether their disagreement with the majority
COURTS AND PROCEDURES—JURIES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 295
is still correct from their viewpoint. Although this de-
vice was popular among judges, many courts have
abandoned it because it seems coercive.
Many courts now use another instruction drafted
by the American BAR ASSOCIATION which asks jurors
in the minority to reconsider their position and the
evidence; jurors should change their stand only if
they are convinced based on the evidence but not
because they feel pressed to conform to the majority
view.
Judge’s Discretion to Set Aside Verdicts
In a civil trial, a judge may set aside the verdict re-
garding how much money should be awarded by the
jury to the plaintiff in PUNITIVE DAMAGES. These dam-
ages consist of a dollar figure the jury awards the
plaintiff in order to punish the defendant. This
amount is totally distinct from COMPENSATORY
DAMAGES, which are meant to reimburse the plaintiff
for lost wages as well as pain and suffering. Given the
purpose of punitive damages, juries can award ver-
dicts that in punitive damages alone amount to mil-
lions of dollars.
The Seventh Amendment to the U. S. Constitution
precludes review by any court of a judgment over
$20. In light of this provision, courts will not overturn
an award made by a jury just because of its large size
or because the judge, if he had been standing in their
shoes, would have awarded a smaller sum. However,
a judge may reduce the amount of the award if it is
far in excess of any rational calculation. Because com-
pensatory damages such as lost wages have formulas
by which juries can arrive at an acceptable figure, the
reduction of an award is usually applied to punitive
damages. The specific ground judges use to justify
this action is that the award was made out of ‘‘pas-
sion and prejudice’’.
In criminal cases, judges may disregard a jury’s
guilty verdict and ACQUIT or grant a new trial if they
believe the evidence was insufficient to support the
decision made by the jurors. Judges may also set
aside a verdict if they believe the verdict was reached
on a basis that violates the U. S. or respective State
constitution or if the legal theory on which the jury
based their decision does not conform to the law.
Jury Sequestration
Judges will have members of a jury sequestered or
kept together in order to protect juries from outside
influences This includes any communication with
persons not allowed to be in contact with the jurors
as well as the content of news reports concerning the
case. Courts view sequestration as a great burden on
the personal lives of the jurors as well as the cost in-
volved, and it is used, therefore, only if the lawyer for
the defense is able to show the judge there is preju-
dice in the surrounding community against the de-
fendant, or that news reports would prevent mem-
bers of the jury from being impartial. While even
criminal defendants do not have the right to have the
jury sequestered, it may be required under state law
where a defendant could be sentenced to death.
Sequestration is more common in criminal than
in civil trials and is likely to be imposed once the jury
has been selected. In a civil trial, jurors are not se-
questered until the jury has heard all of the evidence
and has received their instructions from the judge.
Once a jury is sequestered, strict measures are im-
posed to insure their objectivity. For example, jurors
are not allowed to use a public restroom without a
court BAILIFF or marshal being present. Receiving and
making telephone calls is forbidden but will not re-
sult in a trial verdict being reversed by a higher court
so long as the court officer can hear the conversation
and nothing pertaining to the case is mentioned. Ju-
rors must also be transported as a group, eat togeth-
er, and sleep at the same lodging.
Juror Misconduct
Even if they are not sequestered, jurors are in-
structed not to discuss any subject pertaining to the
trial prior to the time the jury begins their delibera-
tions. This includes fellow jurors.
Each juror has a duty to report as soon as possible
any incident where any person attempted to influ-
ence any member of the jury outside of the room
where the jurors deliberate. A Jurors must report to
the court any violation they see committed by other
jurors against warnings given by the judge not to dis-
cuss the case outside the jury room or against listen-
ing, reading or viewing news reports about the case.
In regard to jurors’ avoidance of any contact with
news reports, the judge in many jurisdictions is re-
quired to explain to the jury his reason for warning
them to do so.
There are a number of documented examples of
juror misconduct that illustrate the above principles.
The first kind of example is jurors bringing in outside
information not given to them at trial. In an automo-
bile accident case, a juror on his own visited the acci-
dent site and drew a diagram of the intersection. The
next day when the jury deliberated, he showed the
jury the diagram and brought into the room a copy
COURTS AND PROCEDURES—JURIES
296 GALE ENCYCLOPEDIA OF EVERYDAY LAW
of a book on state traffic laws, the contents of which
they discussed. In a second instance communication
was said to have taken place between members of
the jury and a customer in a restaurant who ap-
proached their table and urged them to impose the
death penalty. In these instances, what occurred was
clearly prejudicial and resulted in the trial verdict
being overturned.
There are some instances in which the rules about
outside communication were not followed, but were
not considered egregious enough to warrant the ver-
dict being overturned. In one case, the jury did not
understand what was meant by the term proximate
cause. Instead of asking the judge for clarification,
they brought in a dictionary to help them. Because
the dictionary definition did not conflict with what
the judge had told them earlier as to what that word
mean, it was not considered to be prejudicial.
There have been a large number of cases where
jurors have gone to the judge or other court officials
after the trial is over to complain they were intimidat-
ed by other jurors into voting with the majority.
Courts will not take any action at this point for these
reasons. First, before deliberations have concluded,
a juror can report intimidation to court officials. Sec-
ond, the jury can be polled individually in OPEN
COURT to see if each person voluntarily agrees with
the verdict. Third, courts are unwilling to meddle in
or speculate about how the jury reached its decision;
a jury’s deliberations are meant to be secret in order
for non-jurors not to have any influence. Outbursts
of emotion, such as throwing chairs or cursing, are
looked upon by courts as consequences that should
not be unexpected and will not in themselves be suf-
ficient to have intimidated jurors into not voting ac-
cording to their own evaluation of the evidence. Fi-
nally, allowing inquiries after a verdict would
jeopardize the finality of a jury’s decision and might
result in endless additional time wasted.
Notetaking by Jurors
As trials have become more complex, and the in-
formation given more difficult to remember and
place in perspective, a number of states have made
express permission for jurors to take notes during
the trial. These states include Arizona, Arkansas,
Connecticut, Missouri, New Jersey, New York, North
Dakota, Ohio, Washington, Wisconsin, and Wyo-
ming. Although only one state expressly prohibits
this practice, in most jurisdictions whether members
of a jury are allowed to take notes will depend upon
the discretion of the judge. One survey indicated that
37 percent of the judges in state courts indicate they
do not allow jurors to take notes during a trial. In fed-
eral courts, this matter is also left up to the judge.
Many judges oppose juror notetaking because in
their view jurors cannot make the distinction be-
tween important and trivial evidence. As a result, the
more vital evidence may not be recorded and the less
important may be, making it impossible for a jury to
reach a rational verdict. However, studies performed
in Wisconsin and Arizona indicate that notetaking
did not influenced the verdict, or distract the jurors;
notes taken were accurate and did not result in the
notetakers dominating non-notetakers in the jury de-
liberations.
Questioning of Witnesses by Jurors
A small number of states have changed their laws
and court rules to allow jurors to ask witnesses ques-
tions, either orally or in writing through the judge.
Written questions submitted in advanced allow attor-
neys for both sides to make objections based either
on the ground they would violate the rules govern-
ing the admission of evidence or would result in prej-
udice against their clients.
The states that expressly encourage judges to
allow jurors to question witnesses are Arizona, Ar-
kansas, Florida, Indiana, Iowa, Kentucky, Nevada and
North Carolina. Out of these jurisdictions, Arizona,
Florida, and Kentucky require that judges allow ju-
rors to ask written questions. The respective highest
state courts of Indiana and Kentucky have ruled ju-
rors have a right to ask questions of witnesses.
Other jurisdictions give a more restricted en-
dorsement of this practice. In Pennsylvania and
Michigan, the respective state supreme courts have
said it is permissible at the discretion of the trial
judge. Texas does not permit jurors to question wit-
nesses in criminal trials and Georgia law requires all
questions to be written and submitted to the judge.
Only Mississippi law expressly forbids jurors from
questioning witnesses.
Plaintiffs of civil trials and prosecutors in criminal
proceedings favor this practice because it assists
them in sustaining the burden of proof required in
order for them to win their case. When jurors ask
questions, they are able to gain a better understand-
ing of the facts brought into evidence, especially
when it is highly technical, such as DNA analysis. Bias
in members of the jury that was undetected during
the selection process can be exposed through ques-
tions they ask, enabling the judge to give an instruc-
COURTS AND PROCEDURES—JURIES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 297
tion against this bias or removing and replacing ju-
rors with alternates.
Defense attorneys in civil and criminal trials are
against jurors questioning witnesses at least partly
because it may lead to information being disclosed
that could be detrimental to their case. If oral ques-
tions are permitted, it could put the defense attorney
in an uncomfortable position if a truthful answer
would prejudice the jury as a whole against their cli-
ent. One example would be if a juror were to ask if
the defendant had a prior criminal record. If the de-
fense attorney objects to the question, the attorney
runs the risk of antagonizing the jury. If the attorney
chooses not to object, his client may have waived any
right on appeal to a higher court that his verdict
should be overturned because of the prejudicial na-
ture of the question. Even if the questions are sub-
mitted to the judge first in writing, defense attorneys
say jurors will inevitably put more weight than they
should on their own questions and makes it more
likely jurors will rush to judgment without taking
into account all the evidence admitted at trial.
Future Prospects of the Jury System
Decline in the Use of Jury Trials
Only two percent of civil cases and a similar pro-
portion of criminal cases that are not dismissed are
settled by PLEA BARGAINING are decided by a jury.
The low percentage of criminal prosecutions
being resolved by a jury trial is the result of their
being settled by PLEA bargaining which helps manage
the heavy caseloads in most jurisdictions. The reason
for the low use of trials in civil cases is more complex.
Various studies have indicated that compared to a
bench trial where a case is heard only by a judge, a
jury trial costs much more and lasts from twice to
three times as long. The increasing complexity of
what a jury has to decide in a civil trial makes such
alternatives as MEDIATION, negotiation, ARBITRATION,
and mini-trials attractive because individuals in-
volved in the proceedings are already knowledgeable
in the subject matter of the case. The increased com-
plexity of modern civil cases makes jurors less likely
to understand the judges’ instructions. Finally, the
jury selection process itself tends to weed out the
more well informed jurors who are able to handle
complex case subject matter.
Prospects for Reform
Jury reform is needed because less than half of
those summoned to the courthouse bother to show
up, and out of this group between 85 to 95 percent
do not serve since they are either exempt, disquali-
fied, or not chosen. Because of the increased impor-
tance placed on the ideal jury as conceived by jury
consultants, less informed and qualified persons are
more likely to be on a jury.
Arizona has made the following reforms: allowing
jurors to take notes during a trial, allowing them to
question witnesses, and permitting jurors to discuss
the case among themselves prior to the time all evi-
dence has been presented. These reforms are need-
ed because the present laws and court rules on juries
were put in place many years ago and do not reflect
the advances scientists have made regarding how
people retain and process new information.
In Arizona, a committee including former jurors
made further recommendations such as increasing
public awareness of jury service, having short open-
ing statements prior to attorneys selecting juries, giv-
ing jurors copies of jury instructions, encouraging ju-
rors to ask questions about these instructions,
offering assistance by the judge and attorneys for
both sides to a deadlocked jury, and obtaining jurors’
reaction to their experience after the verdict is ren-
dered.
Additional Resources
Civil Wrongs and the Anatomy of a Jury Trial. Sigman,
Robert S., Legovac Publishing, 1991.
Commonsense Justice: Juror’s Notions of Law. J. Finkel,
Norman J., Harvard University Press, 1995.
Enhancing the Jury System: A Guidebook for Legal Re-
form. American Judicature Society, 1999.
The Historical Development of the Jury System. Lesser,
Maximus, Gordon Press, 1976.
Inquiry into the Powers of Juries to Decide Incidentally
on Questions of Law. Worthington, George, W. S.
Hein, 1995.
Inside the Jury: The Psychology of Juror Decision Making.
Hastie, Reid, Cambridge University Press, 1994.
Judging the Jury. Vidmar, J. Hass & N., Perseus Publish-
ing,1986.
Jury Duty What You Need to Know Before You Are Called
for Jury Duty Find Out What Its All About. Jones, Al-
fred, Graduate Group, 1999.
Jury Manual: A Guide for Prospective Jurors. Pabst, Wil-
liam R., Metro Publishing, 1985.
Jury Research: A Review and Bibliography. Abbott, Walter
F., American Law Institute, 1993.
COURTS AND PROCEDURES—JURIES
298 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Juries in Colonial America: Two Accounts., 1680-1722.
Hawles, John, Arno Press, 1972.
Juror’s Rights. Stanley, Jacqueline D., Sphinx Publishing,
1998.
Mind of the Juror as Judge of the Facts: or the Layman’s
View of the Law. Osborn, Albert S., W. S. Hein, 1982.
Race and the Jury: Racial Disenfranchisement and the
Search for Justice. Fukurai, H., et. al., Perseus Publish-
ing, 1992.
Suggestions for Improving Juror Utilization in the United
States, Final Report. Stoever, William A., Institute of Ju-
dicial Administration, 1971.
Trends in Civil Trial Verdicts Since 1985. Moller, Erik T.,
Rand Corporation, 1996.
What Makes Juries Listen. Sonya Hamilton, Sonya, Aspen
Law,1984.
Organizations
Association of Trial Lawyers of America
(ATLA)
1050 31st St.
Washington, DC 20007 USA
Phone: (202) 965-3500
Fax: (202) 625-7312
URL: http://www.atlanet.org
Primary Contact: Thomas H. Henderson, Executive
Director
Council for Court Excellence
1717 K St., N.W.
Washington, DC 20036 USA
Phone: (202) 785-5917
Fax: (202) 785-5922
URL: http:www.courtexcellence.org/
Primary Contact: Samuel F. Harahan, Executive
Director
Fully Informed Jury Association
P.O. Box 59
Helena, MT 59843 USA
Phone: (406) 793-5500
Fax: (406) 793-5500
URL: http:www.fija.org/
Primary Contact: Larry Dodge, Ed.
National Center for State Courts
300 Newport Ave.
Willamsburg, VA 23185 USA
Phone: (757) 253-2000
Fax: (757) 220-0449
URL: http://www.ncsonline.org/
Primary Contact: Roger K. Warren, President
Roscoe Pound Institute
1050 31st St., NW
Washington, DC 20007 USA
Phone: (202) 965-3500
Fax: (202) 965-0335
URL: http://www.atlanet.org/foundations/pound/
rpfmenu.htm
Primary Contact: Meghan Donohoe, Executive
Director
COURTS AND PROCEDURES—JURIES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 299
This Page Intentionally Left Blank
COURTS AND PROCEDURES
SMALL CLAIMS COURTS
Sections within this essay:
• Background
• Anatomy of a Small Claim Action
- Maximum Dollar Value of A Case
- Nature of Dispute or Controversy
- Time Limitations
- Procedure
• Special Considerations
- When Individuals Are Sued in Small
Claims Court
- Collecting on a Judgment
- Small Claims for Small Business
Owners
- Small Claims in U. S. Tax Court
• State Provisions
• Additional Resources
Background
Small claims courts are intended to resolve civil
disputes involving small amounts of money, without
formal rules of EVIDENCE and long delays. The parties
involved may present their own claims or defenses
or may be represented by COUNSEL; however, in a
handful of states, attorneys are prohibited. The cases
move quickly through the court dockets, the judges
often render their opinions in the same day, and the
parties are generally satisfied with the quick resolu-
tion of the controversy. However, there is a down-
side. All small claims courts have ‘‘limited jurisdic-
tion’’ (authority to hear and adjudge a matter)
involving not only the dollar amount but also the
subject matter of the controversy. Secondly, if parties
do not understand what they are doing in presenting
their claim or defense, they could stand to lose,
badly, and there is no going back.
Anatomy of a Small Claim Action
Resolving a dispute in small claims court is very
much like conducting a mini-trial, although generally
less formal. There is a claim and a defense, the pre-
sentation of evidence, and a judgment. Rules of pro-
cedure vary from state to state, but the overall pro-
cess is remarkably similar.
Maximum Dollar Value of Case
The maximum dollar value of the dispute or claim
varies greatly from state to state. Typically, the maxi-
mum amount plaintiffs may be awarded in a judg-
ment ranges from $3,000 in New York to $7,500 in
Minnesota. If the amount they are asking for in dam-
ages is more than the allowable amount in their
state’s small claims court system, they have two
choices: either to either waive their right to any
amount above and beyond the maximum allowable,
or file their case in the next level of court.
Nature of Dispute or Controversy
Small claims courts are mostly intended to resolve
minor monetary disputes. A limited number of state
small claims courts permit other forms of remedy be-
sides money, for example, evictions or requests for
the return of PERSONAL PROPERTY. However, individu-
als generally cannot use small claims courts to file for
DIVORCE, guardianship, BANKRUPTCY, name changes,
CHILD CUSTODY, or ‘‘injunctive relief’’ (emergency re-
lief, usually to stop someone from doing something).
In many states, they cannot sue for DEFAMATION (slan-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 301
der or libel) or FALSE ARREST in small claims court. Fi-
nally, they cannot sue the federal government or any
of its branches, agencies, or employees in their offi-
cial capacities in small claims court.
Time Limitations
Each state has its own rules regarding how long
individuals have to file suit, once they have been
harmed or an event occurs that gives rise to a claim.
The same time limits (‘‘statutes of limitation’’) apply
to small claims courts as to other courts. Generally,
they have at least one year from the injury or event
(or its DISCOVERY, in some cases) to file their suit.
Procedure
To start the process, individuals should check
with their local court clerk to find out where their
small claims complaint should be filed: most states
require that they file suit in a small claims court in
the county wherein which the party being sued actu-
ally resides (or has business headquarters), rather
than the one in which the plaintiff resides. Alterna-
tively, some courts allow the suit to be filed in the
district where the injury or event occurred (where
‘‘the cause of action arises’’).
Generally, the complaint itself may be hand-
written or prepared on a special form available from
the court itself, with ‘‘fill in the blanks’’ ease-of-
completion. If individuals are composing their own
complaints, they need to make sure that it contains,
at a minimum, the following:
• The plaintiff’s complete name and address
• The complete name and address of the party
being sued
• The date of the injury or event which gives
rise to the plaintiff’s claim
• A brief statement of facts relating to the inju-
ry or the event, and the role that the party
being sued played in it
• The type of harm that was suffered by the
plaintiff as a result of it
• The amount of damages or other remedy
the plaintiff seeks are asking
Individuals must also check local law to ensure
that the party being sued is properly served with the
complaint. In many small claims courts, a court clerk
will take care of ‘‘service of process,’’ but in many
states, plaintiffs are responsible.
The court will notify plaintiffs of the date for their
trials. Plaintiffs should request from the court clerk
any available information that may help them with
procedure (unless they have retained an attorney).
Generally, plaintiffs are allowed to bring witnesses to
TESTIFY in support of their claims. Some courts may
accept affidavits (sworn statements) from persons
who cannot appear in person; however, since the
other side has no opportunity to ‘‘cross-examine’’ an
absent witness, most courts will give only minor con-
sideration to affidavits. Plaintiffs’ most important wit-
nesses are themselves. Be prepared, be professional,
and be brief (but to the point). They need to have
extra copies of all documents, not only for the judge,
but also for the opposing party. Remember that they
will most likely be cross-examined not only on their
TESTIMONY, but also and on the substance of any evi-
dence they present.
Generally, there are no juries, and a judge or
MAGISTRATE will decide the case. Often, the judgment
is rendered immediately, and placed on the record.
In other cases, individuals may receive written word
of a decision and judgment within a few days. In
some states, they may appeal a judgment, but not in
all cases. The court is not responsible for collecting
any judgment they have been awarded, but they can
generally return to court for ‘‘post-judgment’’ pro-
ceedings if the other party fails to pay.
Special Considerations
When Individuals Are Sued in Small Claims
Court
If individuals have been served with a complaint,
it is imperative that they respond to the court within
the time indicated. Not only do they have the right
to ‘‘tell their side of the story’’ in their defense, but
they may also, in some small claims courts, be per-
mitted to ‘‘counter-claim.’’ The counter-claim may
be related to the original complaint (tending to di-
minish the complaint’s value or truth), or it may be
wholly unrelated but still properly raised against the
person who has sued them. Defendants must check
local procedure for details on the permissibility of
counter-claims.
Defendants may raise the defense that they were
not properly ‘‘served’’ with court papers according
to local rules. They may raise the defense that the
time for filing suit against them has expired. They
may raise the defense that the person suing them has
not stated a viable claim or cause of action. They may
raise any other defense that they believe diminishes
the value or the existence of the complaint against
them.
COURTS AND PROCEDURES—SMALL CLAIMS COURTS
302 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Finally, individuals being sued need to study care-
fully the charges against them very carefully. First
and foremost, they need to develop any facts that
tend to show that they are not liable. Secondly, they
need to develop any facts that tend to diminish or re-
duce the amount of damages the person claims they
have caused. Third, they need to develop any evi-
dence that will support their defense (or counter-
claim) and/or that will corroborate their own testi-
mony. Finally, they should practice their presenta-
tion: they will want their side of the dispute to be
logical, to-the-point, and damaging to the claims
against them.
Collecting on a Judgment
Before individuals sue, they should ask them-
selves whether it may cost them more than they may
gain. Do the people they want to sue have steady em-
ployment, valuable real estate, or other TANGIBLE as-
sets? In many states, judgments are collectible (with
accrued interest) for ten years or more, so individu-
als may wish to wait, and attach assets of the judg-
ment DEBTOR down the road in the future. If individ-
uals want to are suing a small business contractor,
their state may permit them to file a copy of the judg-
ment with the state licensing board. If the contractor
does not post bond or pay it off, the license may be
suspended or revoked. Finally, there is a danger that
the judgment debtor may file for bankruptcy. Even
if plaintiffs are listed as a CREDITOR, they may only get
pennies on every dollar of their judgment.
Small Claims for Small Business Owners
If individuals own a small business, small claims
court may be helpful for collecting unpaid bills be-
cause owners do not need to go through bill collec-
tors or lawyers, which could substantially reduce
their NET profit. Often the debtor fails to appear in
court, and creditors may be entitled to a DEFAULT
JUDGMENT. But again, creditors need to be wary of
collecting in the future, especially if the judgment
debtor is another small business that may not be
around in a few years.
Small Claims in U. S. Tax Court
If individuals are faced with a dispute involving
the U. S. Internal Revenue Service (IRS), the federal
Tax Court maintains a special division for small cases.
Their case will qualify for the small case division if the
disputed amount that the IRS claims they owe for
any one tax year is $50,000 or less, including taxes
and penalties. A case that qualifies for small claims
handling is given an ‘‘S’’ designation. Most tax court
cases are settled without a trial.
State Provisions
ALABAMA: In Alabama, the Small Claims Division of
the District Court hears claims limited to $3,000 or
less.
ALASKA: In Alaska, the District Court Civil Division
processes small claims that do not exceed $7,500.
Each county has a District Court.
ARKANSAS: In Arkansas, the Claims Court is a special
civil division of the Municipal Court. Claims are limit-
ed to $5,000 or less.
ARIZONA: In Arizona, every JUSTICE OF THE PEACE
Court has a small claims division. Disputes must not
exceed $2,500. All cases are heard by judges or
HEARING officers. No attorneys are allowed to repre-
sent clients in these cases. Justice Courts share
JURISDICTION with the Superior Court in cases of
landlord/tenant disputes where damages are be-
tween $5,000 and $10,000. They can hear matters re-
garding possession of, but not title to, real property.
CALIFORNIA: In California, individuals can file as
many claims as they wish for up to $2,500 in the
Small Claims Court. However, individuals may only
file two (2) claims in any calendar year for up to
$5,000. However, they cannot sue a guarantor for
more than $4,000. A guarantor is one who promises
to be responsible for the debt or DEFAULT of another.
COLORADO: In Colorado, the County Court Civil Di-
vision processes small claims that do not exceed
$5,000. Each county has a District Court. No plaintiff
may file more than two claims per month or 18
claims per year in small claims courts.
CONNECTICUT: In Connecticut, the Small Claims
Court is a division of the Superior Court and has a
maximum jurisdictional amount of $3500. Attorneys
are permitted. There are no rights of appeal. The offi-
cial court form is ‘‘JD-CV-40.’’ Individuals should call
the Secretary of State at 860-509-6002 to find out if
a DEFENDANT is a corporation and to get the address.
There is a $30 filing fee.
DELAWARE: In Delaware, the Justice of the Peace
Court handles both civil and criminal cases. Civil
cases handled in the Justice of the Peace Court are
those involving money debts, property damages, or
return of personal property. The amount of damages
that may be sought in the Justice of the Peace Court
is limited to $15,000.
DISTRICT OF COLUMBIA: In Washington, D.C the
District of Columbia., the Small Claims Division of
COURTS AND PROCEDURES—SMALL CLAIMS COURTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 303
the Superior Court of D.C. hears cases that are only
for the recovery of money up to $5,000. The Small
Claims Division of the Superior Court of D.C. hears
cases that are only for the recovery of money up to
$5,000.00, not including interest, attorneys fees, and
court costs. If both parties to an action agree, a Supe-
rior Court judge may settle a case by ARBITRATION, re-
gardless of the amount of the claim. DC Code 11-
1321,1322; McCray v. McGee, 504 A.2d 1128 (App
D.C. 1986.)
FLORIDA: In Florida, a County Court civil division
handles small claims under $5,000.
GEORGIA: In Georgia, a County Magistrate Small
Claims Court handles money claims under $15,000.
Individuals may file a claim in Magistrate Court with
or without an attorney. They may have an attorney
represent them if they choose; this would be at their
own expense. The court does not appoint attorneys
for civil cases.
HAWAII: In Hawaii, the Small Claims Division of the
District Courts may only handle cases for the recov-
ery of money where the amount claimed is no more
than $3,500. The Small Claims Division publishes its
own procedural rules.
ILLINOIS: In Illinois, the County Circuit Court pro-
cesses small claims of $5,000 or less. The parties are
not required to have lawyers but may choose to have
one.
INDIANA: In Indiana, the Small Claims Division of
the Superior Court hears claims limited to $3,000 or
less ($6,000 in Marion and Allen Counties).
IOWA: In Iowa, the Small Claims Division of the Su-
perior Court hears claims limited to $4,000 or less.
KANSAS: In Kansas, the District Court hears small
claims actions. Amounts at issue are limited to
$1,800. Lawyers are not allowed to represent parties
in small claims proceedings prior to the entry of
judgment. There is a $19.50 filing fee for claims up
to $500, and a $39.50 filing fee for claims from $500
to $1,800. The hearing is conducted informally be-
fore a judge. The judgment debtor has ten days after
the judgment is entered to file an appeal. The judg-
ment debtor has 30 days to either pay the judgment
or file a ‘‘Judgment Debtor’s Statement of Assets’’
with the court, which will forward it to parties.
KENTUCKY: In Kentucky, the Small Claims Division
of the District Court hears cases involving small
claims under $1,500.
LOUISIANA: In Louisiana, the City Court hears small
claims actions. Some EVICTION cases are heard in
small claims court, if the rent at issue is sufficiently
small. Amounts at issue are limited to $3,000 ($2,000
for movable property).
MAINE: In Maine, the Small Claims Court is a special
civil division of the District Court. Claims are limited
to $4,500 or less.).
MARYLAND: Maryland does not have a specific small
claims court, but the District Court has exclusive ju-
risdiction for claims involving less than $25,000. No
formal pleadings are required for claims under
$2,500. Unfortunately, the trials in these courts are
much more formal than in typical small claims
courts. Therefore, individuals may wish to consider
obtaining the services of an attorney before going
into court. MD CJ 4-401, 405.
MASSACHUSETTS: In Massachusetts, small claims
are heard in every District Court, in every Housing
Court, and at the Boston Municipal Court. Small
claim actions are limited to disputes under $2,000.
MICHIGAN: In Michigan, individuals can sue for up
to $3,000 in the Small Claims Division of the District
Court. Michigan does not allow attorneys in small
claims court. Decisions are final and cannot be ap-
pealed. Filing fees are $17.00 for claims up to $600,
and $32.00 for claims from $600 to $3,000.
MINNESOTA: In Minnesota, the Small Claims Court
is part of the District Court. Claims may not exceed
$7,500.
MISSISSIPPI: In Mississippi, individuals may sue in
small claims court for up to $2,500. There are no In-
ternet resources for Mississippi small claims courts
as of 2002.
MISSOURI: In Missouri, civil claims for $3,000 or less
may be filed in Small Claims Court. This court has
very simple rules that allow parties to resolve dis-
putes with or without a lawyer. Rules 140 through
152 govern all civil actions pending in the small
claims division of the circuit court.
MONTANA: In Montana, the Justice Court hears
small claims actions of $3,000 or less.
NEBRASKA: In Nebraska, small claims court is limited
to civil (non-criminal) actions involving disputes over
amounts of money owed, damage to property, or
seeking the return of personal property. Judgments
in small claims court may not exceed $2,400.
COURTS AND PROCEDURES—SMALL CLAIMS COURTS
304 GALE ENCYCLOPEDIA OF EVERYDAY LAW
NEVADA: In Nevada, the Small Claims Division of the
County Court hears small claims actions of $5,500 or
less.
NEW HAMPSHIRE: In New Hampshire, Small Claims
Courts are divisions of District Courts. Small claims
are regulated by RSA 503. A small claim action may
not exceed $5,000. Attorneys are permitted.
NEW JERSEY: In New Jersey, small claim cases are
heard in the Special Civil Part of the Civil Division of
the Superior Court. These cases are for less than
$2,000. The Special Civil Part also hears cases be-
tween $2,000 and $10,000.
NEW MEXICO: In New Mexico, the County Magis-
trate Court is authorized to hear cases that do not ex-
ceed $5,000.
NEW YORK CITY: In New York, the City, District, and
Justice Courts in the state have Small Claims Parts
that are authorized to hear cases that do not exceed
$3,000.
NORTH CAROLINA: In North Carolina, the County
District Court is authorized to hear cases that do not
exceed $4,000.
NORTH DAKOTA: In North Dakota, the District
Court is authorized to hear small claims cases that do
not exceed $5,000.
OHIO: In Ohio, civil claims for $3,000 or less may be
filed in Small Claims Court. This court has very sim-
ple rules that allow parties to resolve disputes with-
out hiring an attorney. However, attorneys are per-
mitted to represent parties if desired.
OKLAHOMA: In Oklahoma, the District Court small
claims division handles cases that do not exceed
$4,500.
OREGON: In Oregon, the Small Claims Department
of the Justice Court processes small claim actions in-
volving disputes under $5,000.
PENNSYLVANIA: In Pennsylvania, District Justice
Courts hear claims that do not exceed $8,000. The
Municipal Court of Philadelphia may hear claims of
$10,000 or less. It also may hear rent only disputes
in LANDLORD Tenant cases of an unlimited amount.
RHODE ISLAND: In Rhode Island, the small claims
courts handle cases that do not exceed $1,500.
SOUTH CAROLINA: In South Carolina, the Magis-
trate Court processes small claim actions involving
disputes under $5,000. This amount was raised to
$7,500 on January 1, 2001.
SOUTH DAKOTA: In South Dakota, the small claims
court is authorized to hear cases for $8,000 or less.
TENNESSEE: In Tennessee, the Court of General
Sessions hears small claims actions involving dis-
putes for $15,000 or less. In counties of 700,000 or
more people, the Court hears small claims disputes
for up to $25,000. However, there is no dollar limit
for cases involving UNLAWFUL DETAINER and the recov-
ery of personal property.
TEXAS: In Texas, a Justice Court handles small claims
under $5,000.
UTAH: In Utah, the District Court processes small
claim actions involving disputes under $5,000. Each
county has a District Court. Small Claims rules and
fees are covered under Title 78, Chapter 06 of the
Utah Code.
VERMONT: In Vermont, the small claims courts han-
dle cases that do not exceed $3,500.
VIRGINIA: In Virginia, the small claims divisions of
the general district courts hear disputes of $1,000 or
less. The general district courts, themselves, hear dis-
putes of $3,000 or less. Cases involving amounts be-
tween $3,000 and $15,000 may be heard by either the
general district court or the circuit court. VA Code
16.1-122.1.
WASHINGTON: In Washington State, the District
Court Civil Division processes small claims in
amounts not exceeding $2,500. Each county has a
District Court. Note that small claims are not handled
in municipal court. Procedural guidelines for small
claims actions are found in the Revised Code of
Washington (RCW) Chapters 3.66, 4.28, 12.40, and
applicable provisions in the Civil Rules for Courts of
Limited Jurisdiction, Rule 5 (CRLJ5).
WEST VIRGINIA: In West Virginia, the Magistrates
Courts handle small claims with $5,000 or less in dis-
pute.
WISCONSIN: In Wisconsin, the District Courts han-
dle small claims of $5,000 or less. For landlords seek-
ing eviction, the $5,000 limit does not apply.
WYOMING: In Wyoming, the Justice of the Peace
Courts hear small claims of up to $3,000. Circuit
courts hear cases of up to $7,000.
Additional Resources
The Court TV Cradle-to-grave Legal Survival Guide. Little,
Brown and Company, 1995.
COURTS AND PROCEDURES—SMALL CLAIMS COURTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 305
Everybody’s Guide to Small Claims Court. Warner, Ralph,
Nolo Press, 1991.
Law for Dummies. Ventura, John, IDG Books Worldwide,
Inc., 1996.
‘‘Small Claims Court.’’ Nolo Press, 2002. Available at http:/
/www.nolo.com/lawcenter/ency/article.cf.
COURTS AND PROCEDURES—SMALL CLAIMS COURTS
306 GALE ENCYCLOPEDIA OF EVERYDAY LAW
COURTS AND PROCEDURES
STATE COURTS AND PROCEDURES
Sections within this essay:
• Background
• Function and Scope of State Courts
• The Concept of Jurisdiction
• General Structure of State Court Systems
• Judges and Administrative Staff
• State Provisions
• Additional Resources
Background
The judicial powers of individual states are gener-
ally vested in various courts created by state constitu-
tion or (less frequently) state STATUTE. Within the
BOUNDARIES of each state and coexisting with state
courts are numerous federal district and/or
APPELLATE courts that function independently. Also
coexisting within state boundaries are various admin-
istrative tribunals that also hear and decide legal mat-
ters, such as worker’s compensation boards, profes-
sional licensing boards, and state administrative
tribunals. Yet, there are often local, district, and/or
municipal courts within the community. At first
blush, it may appear overwhelming and confusing to
consider what legal matter may be decided in which
forum. But for the most part, each of the above
courts has its own separate function and role in ap-
plying the laws to the controversies brought before
it and administering justice to all.
Function and Scope of State Courts
To understand the function and scope of state
courts, it is necessary to consider them in relation to
the federal court system expressly created in Article
III of the U. S. Constitution. Article III also establishes
the type of cases that federal courts may hear and de-
cide (federal ‘‘jurisdiction’’).
Article VII of the Constitution declares that ‘‘This
Constitution, and the Laws of the United States . . .
and all Treaties 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.’’ Later in the Constitu-
tion, the Tenth Amendment provides that ‘‘powers
not delegated to the United States by the Constitu-
tion, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.’’
The ultimate effect these provisions have upon
state courts is to reserve to them the right to hear
and decide any legal matter not expressly reserved
for the exclusive JURISDICTION of federal courts (such
as lawsuits between states). This matter mostly in-
volves the ‘‘adjudication’’ of controversies concern-
ing state laws, which impact the daily lives of citizens
in a much greater manner than federal laws. State
courts may also rule upon certain issues concerning
federal law and the federal Constitution.
State legislatures are therefore free to create—
and state courts are free to enforce—any law, regula-
tion, or rule that does not conflict with or abridge the
guarantees of the federal Constitution (or the state’s
own constitution). The wide variance, from state to
state, of both structure and procedure within the
GALE ENCYCLOPEDIA OF EVERYDAY LAW 307
court systems is precisely due to the preservation of
those independent powers to the states by the U. S.
Constitution.
The Concept of Jurisdiction
A court’s general authority to hear and/or ‘‘adjudi-
cate’’ a legal matter is referred to as its ‘‘jurisdiction.’’
In the United States, jurisdiction is granted to a court
or court system by statute or by constitution. A court
is competent to hear and decide only those cases
whose subject matter fits within the court’s jurisdic-
tion. A legal decision made by a court that did not
have proper jurisdiction is deemed void and non-
binding upon the litigants.
Jurisdiction may be referred to as ‘‘exclusive,’’
‘‘original,’’ concurrent, general, or limited. Federal
court jurisdiction may be ‘‘exclusive’’ over certain
matters or parties (to the exclusion of any other
forum) or may be ‘‘concurrent’’ and shared with
state courts. In matters where both federal and state
courts have concurrent jurisdiction, state courts may
hear federal law claims (e.g., violations of CIVIL
RIGHTS), and parties bringing suit may choose the
forum. However, when a plaintiff raises both state
and federal claims in a state court, the DEFENDANT
may be able to ‘‘remove’’ the case to a federal court.
General Structure of State Court Systems
The general workhorse of a state court system is
the trial court. This is the lowest level of court and
is usually the forum in which a case or lawsuit origi-
nates. It may be a court of general jurisdiction, such
as a circuit or superior court, or it may be a court of
special or limited jurisdiction, such as a PROBATE, ju-
venile, traffic, or family court. Some states handle
‘‘small claims’’ in separate courts, while others han-
dle such claims in special divisions of the general trial
courts. This is also true for probate and juvenile mat-
ters. Although someone may broadly refer to ‘‘juve-
nile court’’ or ‘‘small claims court,’’ he or she may ac-
tually be referring to the juvenile or small claims
‘‘division’’ of the general circuit court.
• Probate courts primarily handle the adminis-
tration of estates and the probating of wills.
In many states, probate courts also handle
such matters as competency hearings, appli-
cations for guardianships, adoptions, etc. In
a minority of jurisdictions, probate courts
may be referred to as surrogate’s courts.
• Family courts hear cases involving (mostly)
CUSTODY and CHILD SUPPORT, neglect and
abuse cases, and, sometimes, juvenile crime
or truancy. Most family courts do not handle
divorces, which are generally handled by the
courts of general jurisdiction.
• Traffic courts handle civil infractions and vio-
lations involving motor vehicles, petitions
for reinstatement of driving privileges, and
related matters. Some may handle minor
(MISDEMEANOR) criminal offenses related to
motor vehicle-related violations. Most traffic
courts do not handle automobile accident
cases (as between the parties involved in an
accident).
• Housing courts, or landlord-tenant courts,
handle exactly that. In many jurisdictions,
landlords must choose to file their cases in
one of two courts, depending upon whether
they seek EVICTION, injunction, etc. (land-
lord-tenant court), or seek money damages
(small claims court). Other jurisdictions han-
dle all landlord-tenant related matters in a
single court.
• Small-claims courts handle all civil matters in
which the dollar amount in controversy
does not exceed a certain amount. If a party
seeks damages in an amount greater than
the jurisdictional limit of the small claims
court, the party must either waive his or her
right to the exceeding amount or re-file the
case in a court with greater jurisdiction. The
maximum jurisdictional limit of small claims
courts varies greatly from state to state but
mostly falls in the range of $3000 to $7500.
• Juvenile courts handle truancy and criminal
offenses of minors. The maximum age of the
minor varies from state to state but generally
is either 16 or 18 years. Older juveniles who
have committed serious crimes may be
‘‘bound over’’ to a court of general jurisdic-
tion for determination of whether they
should be tried as adults.
Importantly, states may have separate courts for
criminal and civil matters. Most often, a trial court of
general jurisdiction will handle both, but often on
separate dockets. Many local or district courts will
have limited jurisdiction for criminal matters (e.g.
misdemeanors only). In such circumstances, a per-
son charged with a FELONY may be arraigned in the
district court and then ‘‘bound over’’ to the next
COURTS AND PROCEDURES—STATE COURTS AND PROCEDURES
308 GALE ENCYCLOPEDIA OF EVERYDAY LAW
level court (having proper jurisdiction) for criminal
trial. Again, this varies greatly from state to state.
Every state has its own system to handle appeals
from the trial courts. Most states have a three-tiered
court system in which there are intermediate ‘‘appel-
late’’ courts that review jury verdicts or the opinions
of trial court judges (on a limited basis and under
strict criteria). These appellate courts may or may
not be distinguished by separate buildings or court-
houses. Often, what is referred to as a ‘‘court of ap-
peals’’ is in reality a panel of justices who merely con-
vene to hear and decide cases at the appellate level.
In a minority of states, trial court decisions receive
only one appellate review at the level of the state’s
highest court or the court ‘‘of last resort’’ (generally
referred to as the state’s ‘‘supreme court’’). Once a
state’s highest court has decided a matter, the only
available appeal is to the U. S. Supreme Court. How-
ever, the Supreme Court is generally deferential to
state supreme courts, and only reviews matters in
very limited circumstances (e.g, where a state’s high-
est court has ruled that a federal statute or treaty is
invalid or unconstitutional, or where the highest
courts of two or more states have ruled differently on
federal issues). When a state’s highest court has de-
cided a matter that involves both federal and state is-
sues, the U. S. Supreme Court will nonetheless re-
fuse to review the matter if the non-federal question
is decisive in the case.
Judges and Administrative Staff
Whereas most federal judges are appointed to
their positions, the majority of state trial court judges
are elected to their positions by the general popu-
lace. Appellate (especially supreme court) justices
are often appointed by state governors or legisla-
tures but may also be elected by voters.
What does vary greatly from state to state is
whether judicial elections involve partisan politics. In
some states, party politics play a direct role in judge-
ships; in other states, a judicial candidate’s party affil-
iation is treated as private data (such as religious affil-
iation) not disclosed in campaign profiles. States also
vary greatly in the extent to which they permit judi-
cial candidates to ‘‘advertise’’ their candidacy and/or
raise campaign funds.
State courts employ a large number of support
staff, who are usually public employees paid by tax-
payer funds. Generally, a judge’s staff may include
one or more private assistants, law clerks, court re-
porters, bailiffs and other court officers, and court
clerks. The most important administrative office of
the courthouse is that of the court clerk. This is the
office that stamps and dates all lawsuits filed, serves
process (or verifies the parties’ service of process),
posts legal notices, subpoenas witnesses, SUMMONS
and prepares juries, and sends sheriffs or other court
officials out to serve writs of EXECUTION to collect on
unpaid judgments.
State Provisions
ALABAMA: See Title 12 of the Alabama Code of 1975,
also available at http://www.legislatures.state.al.us/
codeofAlabama/1975. Alabama’s courts of limited ju-
risdiction are probate, county, justice, and recorder’s
courts. Its trial court of general jurisdiction is the
‘‘circuit court.’’ Alabama has separate appellate
courts for criminal and civil appeals and one su-
preme court.
ALASKA: Alaska has MAGISTRATE and district courts of
limited jurisdiction. Its general trial courts are called
‘‘superior courts.’’ Its court of last resort is its state
supreme court.
ARIZONA: Courts of limited jurisdiction include ‘‘jus-
tice courts,’’ municipal courts, and magistrate of-
fices. The superior courts are the trial courts of gen-
eral jurisdiction. Arizona has a court of appeals and
a supreme court.
ARKANSAS: See Title 16, Subtitle 2 of the Arkansas
Code establishes the state court system, available at
http://www.arkleg.state.ar.us/dcode. Arkansas oper-
ates county, municipal, common pleas, justice, and
police courts of limited jurisdiction. It maintains the
COMMON LAW general jurisdiction courts of Chancery
and Probate and has a single supreme court of last
resort.
CALIFORNIA: California’s circuit courts are the
courts of general jurisdiction. It also maintains mu-
nicipal and justice courts of limited jurisdiction. Cali-
fornia has both a court of appeals and a supreme
court.
COLORADO: See Title 13 of the Colorado Constitu-
tion. Colorado maintains limited jurisdiction courts,
including superior, juvenile, probate, county, and
municipal courts. The superior court is the court of
general jurisdiction. Colorado has both a court of ap-
peals and a supreme court.
COURTS AND PROCEDURES—STATE COURTS AND PROCEDURES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 309
CONNECTICUT: Connecticut has juvenile, common
pleas, and probate courts of limited jurisdiction. The
district court is the court of general jurisdiction. Ap-
peals go directly to the state supreme court.
DELAWARE: Delaware maintains limited jurisdictions
courts for family, municipal, and justice. Its general
jurisdiction court is the superior court, and appeals
are made directly to the state supreme court. See
Title 10 of the Delaware Code.
DISTRICT OF COLUMBIA: See Title 11 of the stat-
utes.
FLORIDA: Florida’s court of general jurisdiction is its
circuit court. It also maintains county courts of limit-
ed jurisdiction. It has a district court of appeals and
a state supreme court. See Title V of Florida’s stat-
utes.
GEORGIA: See Title 15 of the Georgia Code. Georgia
has probate, civil justice, criminal justice, and small
claims courts of limited jurisdiction. Its superior
courts are the courts of general jurisdiction. The
state maintains both an appeals court and a supreme
court.
HAWAII: Division 4 of the state laws discuss the
state’s court system. Hawaii utilizes district courts of
limited jurisdiction and circuit courts of general juris-
diction. Appeals go directly to the Hawaii Supreme
Court.
IDAHO: The district court is the court of general ju-
risdiction, but within that court is the magistrate’s
court of limited jurisdiction. Idaho’s appeals go di-
rectly to the state supreme court.
ILLINOIS: Illinois circuit courts are the courts of gen-
eral jurisdiction. The state maintains both a court of
appeals and a state supreme court.
INDIANA: The Indiana Code establishes county, mu-
nicipal, magistrate, probate, juvenile, and JUSTICE OF
THE PEACE courts of limited jurisdiction. Indiana has
circuit civil and criminal courts of general jurisdic-
tion, and has both a court of appeals and a state su-
preme court.
IOWA: See Title XV, Subtitle 2 of the Iowa Code es-
tablishes the court system, which includes the dis-
trict court as the court of general jurisdiction and ap-
peals go directly to the state supreme court.
KANSAS: See Chapters 20 of the Kansas Statutes,
available at http://www.kslegislature.org/cgi-bin/
statutes/index.cgi. Kansas has probate, municipal,
county, and juvenile courts of limited jurisdiction. Its
district courts are courts of general jurisdiction, and
appeals are made to the state supreme court.
KENTUCKY: Kentucky has county, justice, and police
courts of limited jurisdiction. It has a claims court for
claims against the state or its agencies. Kentucky’s
courts of general jurisdiction are its district and cir-
cuit courts, and the state maintains both a court of
appeals and a state supreme court.
LOUISIANA: Louisiana has city, juvenile, mayor’s jus-
tice, traffic, family, municipal, and parish courts of
limited jurisdiction. It maintains both a court of ap-
peals and a supreme court. http://www.legis.state.la.
us.
MAINE: See Maine Statutes, Titles 14, 15, and 16.
Maine has limited jurisdiction probate and district
courts. Its superior courts are courts of general juris-
diction, and the court of last resort is called the ‘‘su-
preme judicial court.’’
MARYLAND: See ‘‘Courts and Judicial Proceedings,’’
available at http://mlis.state.md.us/cgi-win/web_
statutes.exe. Maryland has orphans and district
courts of limited jurisdiction. Its ‘‘circuit of counties’’
courts are the courts of general jurisdiction, and its
court of appeals and court of special appeals are the
courts of last resort.
MASSACHUSETTS: See Chapters 211-222 of the Gen-
eral Laws of Massachusetts, ‘‘Courts, Judicial Officers
and Proceedings.’’ The state’s courts of general juris-
diction are its superior courts. The state has land,
probate, municipal, district, juvenile, and housing
courts of limited jurisdiction. The court of last resort
is the state’s supreme judicial court, but the state
also has a court of appeals.
MICHIGAN: Michigan’s Constitution creates its
courts, which include a court of appeals and a state
supreme court. Michigan’s courts of general jurisdic-
tion are its circuit courts, generally at the county
level. It maintains a few ‘‘recorder’s courts’’ for crimi-
nal cases. Limited jurisdiction courts include those
for common pleas, municipal, district, and probate.
MINNESOTA: See Chapters 480-494 for court sys-
tems. Minnesota has county, municipal, and probate
courts of limited jurisdiction. Its district courts have
general jurisdiction, and it has a supreme court and
court of appeals.
MISSISSIPPI: See Title 9 of Mississippi Code of 1972,
available at http://www.mscode.com/free/statutes.
COURTS AND PROCEDURES—STATE COURTS AND PROCEDURES
310 GALE ENCYCLOPEDIA OF EVERYDAY LAW
The state maintains family, county, city police, and
justice courts of limited jurisdiction, has chancery
and circuit courts of general jurisdiction, and a state
supreme court.
MISSOURI: The state has probate, courts of criminal
correction, magistrate, and municipal courts of limit-
ed jurisdiction. Its circuit courts are courts of general
jurisdiction, and the state has both a court of appeals
and a state supreme court.
MONTANA: See Title 3 of state statutes. The state
maintains municipal, justice, city, and workman’s
compensation courts of special or limited jurisdic-
tion. The district court is the state’s court of general
jurisdiction, and maintains a state supreme court.
NEBRASKA: See Chapters 24 to 27 of the Nebraska
statutes at http://statutes.unicam.state.ne.us/ Nebras-
ka has county, municipal, juvenile, and workman’s
compensation courts of limited jurisdiction. Its dis-
trict court is the state’s court of general jurisdiction,
and it maintains a state supreme court.
NEVADA: See Title 1 of the Nevada Revised Statutes
for a general discussion of the state’s court system.
Nevada has municipal and justice courts of limited ju-
risdiction. Its district court is the state’s court of gen-
eral jurisdiction, and it maintains a state supreme
court.
NEW HAMPSHIRE: New Hampshire has probate, dis-
trict, and municipal courts of limited jurisdiction. Its
superior court is the state’s court of general jurisdic-
tion, and it maintains a state supreme court.
NEW JERSEY: New Jersey maintains municipal, coun-
ty district, juvenile and domestic relations courts of
limited jurisdiction. Its superior court is the state’s
court of general jurisdiction, and it maintains a state
supreme court.
NEW MEXICO: Chapters 34 and 35 of the state stat-
utes address the court system. New Mexico main-
tains probate, municipal, small claims, and magis-
trate courts of limited jurisdiction, as well as a court
of appeals and a state supreme court.
NEW YORK: See Chapter 30 of the New York State
Consolidated Laws, available at http://
assembly.state.ny.us/leg/ New York refers to its high-
est APPELLATE COURT as its ‘‘superior court,’’ and its
courts of general jurisdiction as ‘‘supreme courts,’’
mostly at the county level. New York City maintains
several courts of limited jurisdiction for civil and
criminal dockets, and the state also maintains a court
of appeals.
NORTH CAROLINA: See Chapters 7 of the North Car-
olina General Statutes. The state maintains its superi-
or courts as courts of general jurisdiction. It has a
court of appeals and a state supreme court.
NORTH DAKOTA: See Chapter 27-33 of the Century
Code. Its district court is the court of general jurisdic-
tion. The county courts are courts of limited jurisdic-
tion. North Dakota has a state supreme court.
OHIO: Ohio’s Courts of Common Pleas are the
courts of general jurisdiction. It also maintains mu-
nicipal, county, and courts of claims are courts of lim-
ited jurisdiction. It maintains a court of appeals and
the court of last resort is the state supreme court.
OKLAHOMA: See Title 20 of the Oklahoma Statutes.
The district court is the court of general jurisdiction.
The state maintains municipal courts of limited juris-
diction. It has separate courts of appeal for criminal
and civil cases and has a supreme court of last resort.
OREGON: See Chapters 1 to 10 of the Oregon Re-
vised Statutes. Oregon maintains district, county, jus-
tice, and municipal courts of limited jurisdiction. Its
court of general jurisdiction is the circuit court. Ore-
gon maintains a court of appeals and a state supreme
court.
PENNSYLVANIA: Pennsylvania’s Courts of Common
Pleas are the courts of general jurisdiction. It also
maintains municipal, traffic, and justice of the peace
courts of limited jurisdiction. Its appellate courts are
the superior court and the commonwealth court,
and the court of last resort is the state supreme
court.
RHODE ISLAND: The state maintains district, pro-
bate, family and police courts of limited jurisdiction.
The court of general jurisdiction is the superior
court, and the state has a supreme court.
SOUTH CAROLINA: The circuit court is the court of
general jurisdiction. South Carolina maintains coun-
ty, probate, magistrate, city recorder’s, and family
courts of limited jurisdiction. The state’s court of last
resort is the state supreme court.
TENNESSEE: See Titles 16. The courts of general ju-
risdiction include chancery court, circuit court, crim-
inal court, and law equity court. There are limited ju-
risdiction courts for municipal, juvenile, domestic
relations cases. Tennessee has separate courts of ap-
peals for criminal and civil cases, and a state supreme
court.
TEXAS: Texas maintains criminal district, domestic
relations, juvenile, probate, and county courts of lim-
COURTS AND PROCEDURES—STATE COURTS AND PROCEDURES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 311
ited jurisdiction. Its court of general jurisdiction is
the district court. There are separate courts of appeal
for civil and criminal cases, and the state has a su-
preme court.
UTAH: The state has juvenile, city, and justice courts
of limited jurisdiction. The district court is the court
of general jurisdiction, and the state has a supreme
court.
VERMONT: Vermont maintains district and probate
courts of limited jurisdiction, while its superior
courts are the courts of general jurisdiction. Vermont
has a state supreme court.
VIRGINIA: Virginia has general district, juvenile, and
domestic relations courts of limited jurisdiction. Its
circuit courts are the courts of general jurisdiction,
and the state supreme court is the court of last re-
sort.
WASHINGTON: See Titles 2 and 3 of the Revised
Code of Washington, and the superior court is the
court of general jurisdiction. It maintains district and
municipal courts of limited jurisdiction. The state has
a court of appeals and a state supreme court.
WEST VIRGINIA: See Chapters 50 and 51. Police
courts of limited jurisdiction, circuit courts of general
jurisdiction. The court of last resort is the supreme
court of appeals.
WISCONSIN: See Chapters 750 to 758 of the Wiscon-
sin Statutes. The state maintains municipal courts of
limited jurisdiction. The county circuit courts are the
courts of general jurisdiction. The state supreme
court is the court of last resort.
WYOMING: Wyoming maintains justice and munici-
pal courts of limited jurisdiction. Its court of general
jurisdiction is the state district court, and it has a
state supreme court.
Additional Resources
The Court TV Cradle-to-grave Legal Survival Guide. Little,
Brown and Company: 1995.
How and When to Be Your Own Lawyer. Schachner, Rob-
ert W., Avery Publishing Group, Inc. 1993.
COURTS AND PROCEDURES—STATE COURTS AND PROCEDURES
312 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CRIMINAL LAW
APPEALS
Sections Within This Essay
• Background
• The Basis for an Appeal
• Where are Appeals Filed?
• The Number of Appeals
• Reversing a Conviction
• Writs
• Writs of Habeas Corpus
• The U.S. Supreme Court
• Costs
• Additional Resources
• Organizations
Background
An appeal is a request from a party in a lower court
proceeding to a higher (APPELLATE) court asking the
APPELLATE COURT to review and change the decision
of the lower court. If a DEFENDANT in a criminal case
is found guilty of a charge or charges, the defendant
has the right to appeal that CONVICTION or the pun-
ishment or sentencing. It is common for convicted
defendants to appeal their convictions.
The defendant in a criminal trial may appeal after
she or he is convicted at trial. In fact, it is very com-
mon for convicted defendants to appeal their convic-
tions and/or sentencing. Usually only the defendant
in a criminal trial may appeal. The PROSECUTOR may
not appeal if the defendant is acquitted (found ‘‘not
guilty’’) at trial. The prosecutor may not put the
same defendant on trial for the same charge with the
same EVIDENCE. This kind of retrial is known as ‘‘dou-
ble jeopardy.’’ DOUBLE JEOPARDY is expressly prohib-
ited under the Fifth Amendment of the United States
Constitution. However, prior to or during a criminal
trial, a prosecutor may be able to appeal certain rul-
ings, such as when a judge has ordered that some ev-
idence be ‘‘suppressed’’ Appeals that take place in
the midst of a trial are called interlocutory appeals.
In most cases, appeals can be very complicated; the
appellate court tends to enforce technical rules for
proceeding with an appeal.
In criminal cases, a federal court may review a
conviction after all of the usual appeals have been ex-
hausted. A convicted defendant may request one of
these reviews in a petition for a WRIT of habeas cor-
pus—Latin for ‘‘you have the body.’’ Only a very
small percentage of these petitions are granted. In
death penalty cases, these proceedings have become
highly controversial. Since a judicial or prosecutor’s
error in a death penalty case has such extreme conse-
quences, courts review petitions for writs of HABEAS
CORPUS very carefully.
The procedures of appellate courts consist of the
rules and practices by which appellate courts review
trial court judgments. Federal appellate courts follow
the Federal Rules of Appellate Procedure. State ap-
pellate courts follow their own state rules of appel-
late procedure. In both state and federal jurisdic-
tions, appeals are commonly limited to ‘‘final
judgments.’’ There are exceptions to the ‘‘final judg-
ment rule,’’ including instances of plain or funda-
mental error by the trial court, questions of subject-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 313
matter JURISDICTION of the trial court, or constitu-
tional questions.
The issues under review in appellate court centers
on written briefs prepared by the parties. These com-
plex documents list the questions for the appellate
court and enumerate the legal authorities and argu-
ments in support of each party’s position. Most ap-
pellate courts do not hear oral arguments unless
there is a specific request by the parties. Few jurisdic-
tions allow for oral argument as a matter of course.
Where it is allowed, oral argument is intended to
clarify legal issues presented in the briefs and lawyers
are constrained to keep their oral presentations
strictly to the issues on appeal. Ordinarily, oral argu-
ments are subjected to a strictly enforced time limit.
This time limit can be extended only upon the discre-
tion of the court.
The Basis for an Appeal
There is an institutional preference for a trial
court’s rulings and findings in the U. S. judicial sys-
tem. Thus, for an appellate court to hear an appeal
from a lower court the aggrieved party must demon-
strate to the appellate court that an error was made
at the trial level. The error must have been substan-
tial. ‘‘Harmless errors,’’ or those unlikely to make a
substantial impact on the result at trial, are not
grounds for reversing the judgment of a lower court.
Any error, defect, irregularity, or variance, which
does not affect substantial rights, shall be disregard-
ed.
Assuming that there was no harmless error, there
are two basic grounds for appeal:
1. the lower court made a serious error of law
(plain error),
2. the weight of the evidence does not sup-
port the verdict.
Plain error is an error or defect that affects the de-
fendant’s substantial rights, even though the parties
did not bring this error or defect to the judge’s atten-
tion during trial. Of course, some plain errors or de-
fects affecting substantial rights may be noticed al-
though they were not brought to the attention of the
court. In any event, plain error will form a basis for
an appeal of a criminal conviction.
It is much more difficult to prevail in an appeal
based on the alleged insufficient WEIGHT OF EVIDENCE.
Although appellate courts review the transcripts of
trials, they almost never hear actual TESTIMONY of wit-
nesses, view the presentation of evidence, or hear
the parties’ opening and closing arguments. Conse-
quently, they are not in the best position to assess
the weight of evidence in many cases. For this reason
they place much confidence in trial courts’ decisions
on issues of facts. In an appeal based on an alleged
insufficient weight of evidence to support a verdict,
the error or misjudgment of evidence must truly be
egregious for a defendant to expect to prevail on ap-
peal.
Where are Appeals Filed?
Usually, individuals may only file an appeal with
the next higher court in the same system in which
the case originated. For example, if persons want to
file an appeal from a decision in a state trial court,
normally they may file their appeals only to the state
intermediate appellate court. The party who loses on
appeal may next appeal to the next higher court in
the system, usually the state supreme court. The
state’s highest court is almost always the final word
on matters of that state’s law.
The Number of Appeals
Generally, the final judgment of a lower court can
be appealed to the next higher court one time only.
Thus, the total number of appeals depends on how
many courts are ‘‘superior’’ to the court that made
the contested decision, and sometimes what the
next higher court decides the appeal’s basis. In states
with large populations, it is common to find three or
even four levels of courts, while in less populous
states there may be only two. There are important
differences in the rules, time limits, costs, and proce-
dures depending on whether the case is in Federal
court or state court. Also, each state has different
rules. Finally, even within a single state one may find
that there are different rules for appeals depend on
the court in which the case originated.
Filing a Notice of Appeal is the first step in the ap-
peal process. An appellate court cannot adjudicate a
case if the notice is not properly filed in a timely man-
ner. The notice must be filed within a definite time,
usually 30 days in civil appeals and 10 days in criminal
appeals. The period within which to file usually starts
on the date a final judgment in the lower court is
filed.
CRIMINAL LAW—APPEALS
314 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Reversing a Conviction
As noted above, appeals judges generally defer to
trial court findings, particularly findings of fact (as
opposed to findings of law). Appellate courts resist
overruling trial court judgments and provide trial
courts with wide discretion in the conduct of trials.
‘‘Prefect trials’’ are not guaranteed. In most cases, an
appellate court will overturn a guilty verdict only if
the trial court made an error of law that patently or
significantly contributed to the trial’s outcome. In
other words, a trial judge’s error will not lead to a re-
versal of a conviction as long as the error can reason-
ably be considered harmless. Most errors are
deemed ‘‘harmless,’’ and there are consequently few
reversals of convictions. There are, of course, some
types of errors that are so egregious that they are
presumed harmful, such as the use of a coerced
CONFESSION.
Sentencing is a different matter. When a trial court
exercises its discretion in sentencing, an appellate
court will rarely interfere. In some cases, however,
the law specifies a particular sentence; if the judge
gets it wrong, the appellate court will usually send
the case back for resentencing.
Writs
A writ is a document or an order from a higher
court that directs a lower court or a government offi-
cial to take some kind of action. In any given trial, a
defendant may appeal a case to the next higher ap-
pellate body only once, but the defendant may file
multiple writs in that same trial. Defendants may
seek several types of writs from appellate judges di-
rected at the trial court or at a lower appellate court.
Most writs require advanced legal knowledge and in-
volve detailed procedures. Defendants contemplat-
ing making an application for a writ are wise to con-
sult COUNSEL.
Courts view writs as extraordinary remedies. This
means that is, courts permit them only when a crimi-
nal defendant has no other adequate remedy, such
as an appeal. In other words, a defendant may seek
a writ to contest an issue that the defendant could
not raise in a regular appeal. This action generally ap-
plies when the alleged error or mistake is not appar-
ent in the record of the case. Generally, courts will
adjudicate writs more quickly than regular appeals.
If a defendant feels wronged by actions of the trial
judge, he or she may need to take a writ to obtain
an early review by a higher court. Some of the most
common grounds for seeking a writ include:
• The defense failed to make a timely objec-
tion at the time of the alleged error or injus-
tice
• A final judgment has not yet been entered in
the trial court, but the party seeking the writ
requires immediate relief to prevent further
injustice or unnecessary expense
• Urgency
• The defendant has already lodged an unsuc-
cessful appeal. Merely filing a writ that re-
peats the same unsuccessful grounds or ar-
guments of an appeal is a frivolous writ and
an appellate court will dismiss those writs
immediately
• When an attorney has failed to investigate a
possible defense
Writ of habeas corpus
In many countries, authorities may take citizens
and incarcerate them for months or years without
charging them. Those imprisoned have no legal
means by which they can protest or challenge the
IMPRISONMENT. The framers of the U. S. Constitution
wanted to prohibit this kind of occurrence in the
new United States. Therefore, they included a clause
in the Constitution that allows courts to issue writs
of habeas corpus.
Defendants who are considering challenging the
legal basis of their imprisonment—or the conditions
in which they are being imprisoned—may seek relief
from a court by filing an application for a ‘‘writ of ha-
beas corpus’’. A writ of habeas corpus (which literally
means to ‘‘produce the body’’) is a court order to a
person or agency holding someone in CUSTODY to
deliver the imprisoned individual to the court issuing
the order. Many states recognize writs of habeas cor-
pus, as does the U. S. Constitution. The U. S. Consti-
tution specifically prohibits the government from
suspending proceedings for writs of habeas corpus
except under extraordinary circumstances—such as
during times of war.
Convicted defendants have a number of options
for challenging guilty verdicts and/or for seeking
remedy for violations of constitutional rights, includ-
ing motions, appeals, and writs. Note that convicted
defendants must first have sought relief through the
available state courts before they are permitted to
seek relief in federal courts. Thus, defendants should
consult lawyers to determine which remedies are
available to them.
CRIMINAL LAW—APPEALS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 315
The U. S. Supreme Court
The United States Supreme Court is the ‘‘highest’’
court in the land. It has authority to hear appeals in
nearly all cases decided in the Federal court system.
It can also hear appeals that involve a ‘‘federal ques-
tion’’, such as an issue involving a federal STATUTE or
an issue arising under the U. S. Constitution. The Su-
preme Court will generally hear cases that originate
in state court only after a decision by that state’s
highest court. Despite the great number of criminal
cases that are appealed, very few criminal cases are
ever heard by the Supreme Court. Fewer than 100
cases are actually heard and decided by the Supreme
Court in any given year, and of these only a few are
criminal cases.
Costs
Surprisingly, many appeals can be very inexpen-
sive. If the appeal is focused on only one clearly de-
fined issue of law, and all sides have prepared good
briefs, it may cost very little to appeal. On the other
hand, appeals—such as claims that the verdict was
against the weight of the evidence—typically require
both the printing of the entire trial record and exten-
sive analysis and briefing. Such appeals are relatively
expensive as they can require large amounts of law-
yers’ time. Additionally, they often turn out to be less
successful.
Additional Resources
Briefing and arguing federal appeals: a new edition of
‘‘effective appellate advocacy.’’ Frederick Bernays Wie-
ner, Lawbook Exchange, 2001.
Criminal procedure, constitutional limitations in a nut-
shell, fifth ed., Israel, Jerold H. and Wayne R. LaFave.
West Publishing Co., 1993.
Federal Court of Appeals manual: a manual on practice
in the United States Court of Appeals, third ed., Knibb,
David G., West Publishing Co., 1997.
http://www.appellate-counsellor.com/ ‘‘Appellate Coun-
sellor Home Page’’ Calvin House, 2002.
http://www.currentlegal.com/uscourtrules/frap/‘‘Federal
Rules of Appellate Procedure’’ Legal Content Inc., 2001.
http://www.kentlaw.edu/7circuit/map.html. ‘‘U.S. Federal
Appellate Courts’’ Center for Law and Computers at
Chicago-Kent College of Law, Illinois Institute of Tech-
nology, 2002.
http://vls.law.vill.edu/Locator/statecourt/‘‘State Court Lo-
cator’’ Villanova University School of Law, 2000.
Organizations
American Bar Association, Criminal Justice
Section
740 15th Street, NW, 10th Floor
Washington, DC 20005-1009 USA
Phone: (202) 662-1500
Fax: (202) 662-1501
URL: http://www.abanet.org/crimjust/contact.html
National Association of Criminal Defense
Lawyers (NACDL)
1025 Connecticut Avenue, NW, Suite 901
Washington, DC 20036 USA
Phone: (202) 872-8600
Fax: (202) 872-8690
E-Mail: assist@nacdl.org
URL: http://www.criminaljustice.org/public.nsf/
FreeForm/PublicWelcome?OpenDocument
CRIMINAL LAW—APPEALS
316 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CRIMINAL LAW
CRIMES
Sections within this essay:
• Background
• Felonies, Misdemeanors, and Infractions
- Felonies
- Misdemeanors
- Infractions
- Substantive and Procedural Implica-
tions of a Crime’s Classification
• State Laws Governing the Classification of
Crimes
• Additional Resources
Background
Criminal offenses are classified according to their
seriousness. For crimes against property, the gravity
of a crime is generally commensurate with the value
of the property taken or damaged: the greater the
property value, the more serious the crime. For
crimes against persons, the same proportionality
principle applies to bodily injury inflicted upon indi-
viduals: the greater the injury, the more serious the
crime. However, a host of other factors can influence
the seriousness of a criminal offense. These factors
include whether the DEFENDANT had a prior criminal
record; whether the defendant committed the crime
with cruelty, MALICE, intent, or in reckless disregard
of another person’s safety; and whether the victim
was a member of a protected class (i.e., minors, mi-
norities, senior citizens, the handicapped, etc.).
Thus, a less serious crime can be made more serious
by the presence of these additional factors, and a
more serious crime can be made less serious by their
absence.
Three categories of criminal offenses were known
at COMMON LAW, TREASON, FELONY, and MISDEMEANOR,
with treason being the most serious type of crime
and misdemeanor being the least serious. The com-
mon law distinction between treason and felony was
particularly important in England because a traitor’s
lands were forfeited to the Crown. Under a doctrine
known as ’’corruption of the blood,’’ the traitor also
lost the right to INHERIT property from relatives,
while the relatives lost the right to inherit from the
traitor. U. S. law has never endorsed corruption of
the blood as a criminal PENALTY, and so treason was
dropped as a separate classification of crime in the
colonies.
Today every U. S. JURISDICTION retains the distinc-
tion between felony level criminal offenses and mis-
demeanor level offenses. However, most jurisdic-
tions have added a third-tier of criminal offense,
typically called an INFRACTION or a petty offense. Al-
though the definitions of all three classes differ from
one jurisdiction to the next, they do share some
common characteristics.
Felonies, Misdemeanors, and Infractions
The power to define a crime and classify it as a fel-
ony, misdemeanor, or infraction rests solely with the
legislature at the federal level (see U. S. v. Hudson,
7 Cranch 32, 11 U.S. 32, 3 L.Ed. 259 [U. S. 1812]).
Federal courts do not have the power to punish any
act that is not forbidden by federal STATUTE. Most
crimes made punishable by federal law are set forth
in Title 18 U.S.C. sections 1 et seq.
In the eighteenth century U. S. courts possessed
the power to define crimes and establish classifica-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 317
tions for criminal offenses. These judicially-created
offenses were known as common law crimes. By the
early nineteenth century, federal common law
crimes were under increasing attack as violating the
mandate of the separation of powers established by
the U. S. Constitution. Article I of the Constitution
gives Congress the power to make law, while Article
III gives the judiciary the power to interpret and
apply it. Thus, the constitutionally limited role of fed-
eral courts precludes them from defining crimes or
creating classifications for criminal offenses.
Most states have also abolished common law
crimes. In these states the legislature is given the pri-
mary and often sole responsibility for defining illegal
behavior (the EXECUTIVE BRANCH in a few states plays
a limited lawmaking function via EXECUTIVE ORDERS
and administrative agency rules and regulations). In
the minority of states that still recognize common
law crimes, judges generally are not permitted to
create new common law crimes from the bench. In-
stead, all 50 states and the District of Columbia rely
on their penal code to shape the nature and scope
of their jurisdiction’s criminal laws, and when a penal
code designates an offense as a felony, misdemea-
nor, or infraction, that designation is normally
deemed conclusive by the courts.
Felonies
Felonies are deemed the most serious class of of-
fense throughout the United States. Many jurisdic-
tions separate felonies into their own distinct classes
so that a repeat offender convicted of committing a
felony in a heinous fashion receives a more severe
punishment than a first-time offender convicted of
committing a felony in a comparatively less hateful,
cruel, or injurious fashion. Depending on the cir-
cumstances surrounding the crime, felonies are gen-
erally punishable by a fine, IMPRISONMENT for more
than a year, or both. At common law felonies were
crimes that typically involved moral turpitude, or of-
fenses that violated the moral standards of the com-
munity. Today many crimes classified as felonies are
still considered offensive to the moral standards in
most American communities. They include
TERRORISM, treason, ARSON, murder, rape, robbery,
BURGLARY, and KIDNAPPING, among others.
In many state penal codes a felony is defined not
only by the length of INCARCERATION but also by the
place of incarceration. For example, crimes that are
punishable by incarceration in a state prison are
deemed felonies in a number of states, while crimes
that are punishable only by incarceration in a local
jail are deemed misdemeanors. For crimes that may
be punishable by incarceration in either a local jail or
a state prison, the crime will normally be classified
according to where the defendant actually serves the
sentence.
Misdemeanors
A misdemeanor, a criminal offense that is less seri-
ous than a felony and more serious than an infrac-
tion, is generally punishable by a fine or incarcera-
tion in a local jail, or both. Many jurisdictions
separate misdemeanors into three classes, high or
gross misdemeanors, ordinary misdemeanors, and
petty misdemeanors. Petty misdemeanors usually
contemplate a jail sentence of less than six months
and a fine of $500 or less. The punishment pre-
scribed for gross misdemeanors is greater than that
prescribed for ordinary misdemeanors and less than
that prescribed for felonies, and some states even de-
fine a gross misdemeanor as ‘‘any crime that is not
a felony or a misdemeanor’’ (see MN ST § 609.02).
Legislatures sometimes use such broad definitions to
provide prosecutors and judges with flexibility in
charging and sentencing for criminal conduct that
calls for a punishment combining a fine normally as-
sessed for a misdemeanor and an incarceration peri-
od normally given for a felony.
Infractions
An infraction, sometimes called a petty offense, is
the violation of an administrative regulation, an
ORDINANCE, a municipal code, and, in some jurisdic-
tions, a state or local traffic rule. In many states an
infraction is not considered a criminal offense and
thus not punishable by incarceration. Instead, such
jurisdictions treat infractions as civil offenses. Even
in jurisdictions that treat infractions as criminal of-
fenses, incarceration is not usually contemplated as
punishment, and when it is, confinement is limited
to serving time in a local jail. Like misdemeanors, in-
fractions are often defined in very broad language.
For example, one state provides that any offense that
is defined ‘‘without either designation as a felony or
a misdemeanor or specification of the class or penal-
ty is a petty offense’’ (see AZ ST § 13-602).
Substantive and Procedural Implications of
a Crime’s Classification
The category under which a crime is classified can
make a difference in both substantive and procedur-
al criminal law. Substantive criminal law defines the
elements of many crimes in reference to whether
they were committed in furtherance of a felony. Bur-
glary, for example, requires proof that the defendant
broke into another person’s dwelling with the intent
CRIMINAL LAW—CRIMES
318 GALE ENCYCLOPEDIA OF EVERYDAY LAW
to commit a felony. If a defendant convinces a jury
that he only had the intent to steal a misdemeanor’s
worth of property after breaking into the victim’s
home, the jury cannot return a CONVICTION for bur-
glary.
The substantive consequences for being convict-
ed of a felony are also more far reaching than the
consequences for other types of crimes. One convict-
ed of a felony is disqualified from holding public of-
fice in many jurisdictions. Felons may also lose their
right to vote or serve on a jury. In several states attor-
neys convicted of a felony lose their right to practice
law. Misdemeanants with no felony record rarely face
such serious consequences.
CRIMINAL PROCEDURE sets forth different rules that
govern courts, defendants, and law enforcement
agents depending on the level of offense charged.
The Fourth Amendment to the U. S Constitution al-
lows police officers to make warrantless arrests of
suspected felons in public areas so long as the arrest-
ing officer possesses PROBABLE CAUSE that the suspect
committed the crime. Officers may make warrantless
arrests of suspected misdemeanants only if the crime
is committed in the officer’s presence. Police officers
do not have the authority to shoot an alleged misde-
meanant while attempting to make an arrest, unless
the shots are fired in self–defense. Officers generally
have more authority to use deadly force when effec-
tuating the arrest of a FELON.
Most criminal courts have limited jurisdiction over
the kinds of cases they can hear. A court with juris-
diction over only misdemeanors has no power to try
a defendant charged with a felony. Defendants may
be charged by information (i.e., a formal written in-
strument setting forth the criminal accusations
against a defendant) when they are ACCUSED of a mis-
demeanor, whereas many jurisdictions require that
defendants be charged by a GRAND JURY when they
are accused of a felony.
Defendants charged with capital felony offenses
(i.e., offenses for which the death penalty might be
imposed as a sentence) are entitled to have their
cases heard by a jury of twelve persons who must
unanimously agree as to the issue of guilt before re-
turning a conviction. Defendants charged with non-
capital felonies and misdemeanors may have their
cases heard by as few as six jurors who, depending
on the jurisdiction and the size of the jury actually
impaneled, may return a conviction on a less than
unanimous vote. The right to trial by jury is generally
not afforded to defendants charged only with infrac-
tions or petty offenses. Defendants charged with fel-
onies or misdemeanors that actually result in con-
finement to a jail or prison are entitled to the advice
and representation of a court appointed COUNSEL
(see USCA.Const.Amend.6). Defendants charged
with infractions or misdemeanors that do not result
in incarceration are not entitled to court appointed
counsel.
Accused felons must generally be present during
their trials, while accused misdemeanants may agree
to waive their right to be present. The TESTIMONY of
defendants and witnesses may be impeached on the
ground of a former felony conviction. But a misde-
meanor is not considered sufficiently serious to be
grounds for IMPEACHMENT in most jurisdictions. Be-
cause of all the additional procedural safeguards af-
forded to defendants charged with more serious
criminal offenses, defendants must usually consent
to any prosecution effort to downgrade a criminal of-
fense to a lower level at which fewer safeguards are
offered.
State Laws Governing the Classification
of Crimes
ALABAMA: The state criminal code defines the term,
crime, as either a felony or a misdemeanor, provid-
ing that a misdemeanor is an offense for which the
term of imprisonment does not exceed one year,
while a felony is an offense for which the term of im-
prisonment is in excess of one year (see AL ST § 13A-
1-2).
ARKANSAS: The state criminal procedure code per-
mits police officers to make warrantless arrests for
any crime committed in their presence, for situations
where the officer possesses probable cause to be-
lieve the suspect committed a felony, and for misde-
meanors that the officer has probable cause to be-
lieve that the suspect committed battery upon
another person, so long as there is EVIDENCE of bodily
harm and the officer reasonably believes that there
is danger of further violence unless the suspect is ar-
rested without delay (see AR ST § 16-81-106).
ALASKA: Any person prosecuted for an infraction of
the state’s Motor Vehicle Code is not entitled to a
court-appointed person or the right to a jury trial
(see AK ST § 28.40.050).
ARIZONA: State law governing the city of Tucson de-
fines ‘‘civil parking infraction’’ as ‘‘any violation of
the city code or city ordinances that regulate the
CRIMINAL LAW—CRIMES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 319
time, place, or method of parking.’’ (see AZ ST TUC-
SON CITY CT Rule 2).
CALIFORNIA: State law makes it an infraction punish-
able by a fine of up to $200.00 for any person to vio-
late the Election Code provisions governing voter
registration cards (see CA ELEC § 18107).
FLORIDA: Where a defendant commits only a misde-
meanor in the presence of a police officer prior to
a collision of the squad car with the defendant’s bicy-
cle, the officer has no authority to use deadly force
except in SELF-DEFENSE or if the defendant committed
a new felony (see F.S.A. § 776.05[1, 3]).
GEORGIA: While the value of stolen property is not
an element of the offense of theft by receiving stolen
property, it is relevant for the purpose of distinguish-
ing between a misdemeanor and a felony for sen-
tencing (see O.C.G.A. § 16-8-12[a]).
HAWAII: A court may sentence a person who has
been convicted of certain felonies to life imprison-
ment without PAROLE if the court finds that the felony
was committed in an especially ‘‘heinous,’’ ‘‘atro-
cious,’’ or ‘‘cruel‘‘ manner that manifests ‘‘exception-
al depravity’’ (see HI ST § 706-6570.
ILLINOIS: A motorist’s minor traffic offenses, includ-
ing speeding and improper lane usage, are petty of-
fenses, and thus are not subject to the expungement
procedures set forth in the state statute allowing ex-
pungement of convictions for municipal ordinance
violations, misdemeanors, and felonies (see S.H.A.
20 ILCS 2630/5[a]).
INDIANA: A sentencing court may enhance a sen-
tence for felony murder by declaring the crime ‘‘hei-
nous’’ and articulating specific facts that suggest hei-
nousness (see A.I.C. 35-42-1-1[2]).
MASSACHUSETTS: For crimes against property, the
value of the property destroyed is what distinguishes
a felony that is punishable by a prison sentence of up
to ten years from a misdemeanor that is punishable
by a prison sentence of not more than two and one-
half months (see MA ST 266 § 127).
MICHIGAN: A misdemeanor that results in two years’
imprisonment may be deemed a felony for purposes
of the HABITUAL offender provisions in the state Code
of Criminal Procedure (see M.C.L.A. §§ 750.7, 750.8,
750.9, 760.1 et seq).
MINNESOTA: The Rule of Criminal Procedure allow-
ing the state to appeal a felony sentence does not
give the state the right to appeal from a trial court’s
order involving a gross-misdemeanor sentence (see
MN ST RCRP Rule 28.04; State v. Loyd, 627 N.W.2d
653 [Minn.App. 2001]).
MISSOURI: The state Court of Appeals ruled that pri-
vate citizens may arrest a suspected felon upon a
showing of reasonable grounds to do so or to pre-
vent an affray or breach of the peace, while they may
only arrest a suspected misdemeanant if authorized
by statute (see State v. Cross, 34 S.W.3d 175 [Mo.App.
2000]).
NEW JERSEY: The state insurance statute denies cov-
erage for PERSONAL INJURY protection (PIP) benefits
if the insured suffers personal injuries while commit-
ting a high misdemeanor or felony (see NJ ST
39:6A-7).
NEW YORK: Any violation of the Vehicle and Traffic
Code must be charged by way of a formal informa-
tion, unlike mere traffic infractions that may be
charged via a simplified traffic information (see Peo-
ple v. Smith, 163 Misc.2d 353, 621 N.Y.S.2d 449
(N.Y.Just.Ct. 1994); NY CRIM PRO § 100.10).
NORTH DAKOTA: Because punishment is irrelevant
to a jury’s consideration of guilt or innocence, a jury
instruction should not inform the jurors about the
penalty to be imposed, and thus jury instructions
should not disclose whether the defendant stands to
be convicted of a felony or misdemeanor (see State
v. Mounts, 484 N.W.2d 843 [N.D. 1992]).
TEXAS: The state Court of Criminal Appeals ruled
that an act authorizing a jury of 6 in a trial for misde-
meanors is contrary to the constitutional require-
ment that the jury in a district court shall be com-
posed of 12 men. Rochelle v. State, 89 Tex.Crim. 592,
232 S.W. 838 (Tex.Crim.App. 1921); TX CONST Art.
5, § 13.
UTAH: The state supreme court held that law en-
forcement officers may not use lethal force to stop
one who has committed a misdemeanor. Day v.
State ex rel. Utah Dept. of Public Safety, 980 P.2d
1171 (Utah 1999).
VIRGINIA: The State Court of Appeals ruled that de-
fendants have a duty as well as the right to be present
at their trials. Even when there is a statute authoriz-
ing trial of misdemeanor cases in the absence of the
accused, the defendant has no right to be absent at
trial and to appear only by counsel (see Durant v.
Commissioner, 35 Va.App. 459, 546 S.E.2d 216
[Va.App. 2001]).
CRIMINAL LAW—CRIMES
320 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Additional Resources
American Jurisprudence. Lawyers Co-operative Publish-
ing Company, 2001.
Black’s Law Dictionary 6th ed. West Group, 2000.
Criminal Procedure. Wayne R. LaFave, Jerold H. Israel,
and Nancy J.King, West Group, 2001.
Oxford Companion to the Supreme Court. Kermit Hall,
ed., Oxford University Press, 1992.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Civil Liberties Union (ACLU)
1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
E-Mail: info@aclu.org
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive
Director
Association of Federal Defense Attorneys
8530 Wilshire Blvd, Suite 404
Beverly Hills, CA 90211 USA
Phone: (714) 836-6031
Fax: (310) 397-1001
E-Mail: AFDA2@AOL.com
URL: http://www.afda.org
Primary Contact: Gregory Nicolaysen, Director
Center for Human Rights and Constitutional
Law
256 S. Occidental Blvd.
Los Angeles, CA 90057 USA
Phone: (213) 388-8693
Fax: (213) 386-9484
E-Mail: mail@centerforhumanrights.org
URL: http://www.centerforhumanrights.org
Primary Contact: Peter A. Schey, Executive Director
National District Attorneys Association
(NDAA)
99 Canal Center Plaza
Alexandria, VA 22314 USA
Phone: (703) 549-9222
Fax: (703) 836-3195
URL: http://www.ndaa.org
Primary Contact: Thomas J. Charron, Director
CRIMINAL LAW—CRIMES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 321
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CRIMINAL LAW
DEATH PENALTY
Sections within this essay:
• Background
- History of Death Penalty Laws
• The United States and the Death Penalty
• The Abolitionist Movement
- The Colonial Period
- The Nineteenth Century
- The Progressive Period
• The United States Constitution and the
Death Penalty
- Death Penalty Challenges
- Temporary Abolition of the Death
Penalty
- Reinstatement of the Death Penalty
• Recent Developments in the Death Penalty
- Capital Punishment at the Federal
Level
- Worldwide Abolition
- Capital Punishment Today
- Recent Death Penalty Statistics
• Methods of Execution by State
• Additional Resources
Background
History of Death Penalty Laws
The first recognized death penalty laws date back
to eighteenth century B. C. and can be found in the
Code of King Hammaurabi of Babylon. The Hammu-
rabi Code prescribed the death penalty for over
twenty different offenses. The death penalty was also
part of the Hittite Code in the fourteenth century B.
C. The Draconian Code of Athens, in seventh century
B. C., made death the lone punishment for all crimes.
In the fifth century B. C., the Roman Law of the
Twelve Tablets also contained the death penalty.
Death sentences were carried out by such means as
beheading, boiling in oil, burying alive, burning, cru-
cifixion, disembowelment, drowning, flaying alive,
hanging, impalement, stoning, strangling, being
thrown to wild animals, and quartering (being torn
apart).
In Britain, hanging became the usual method of
EXECUTION in the tenth century A. D. In the eleventh
century, William the Conqueror would not allow per-
sons to be hanged or otherwise executed for any
crime, except in times of war. However, this trend
did not last long. In the sixteenth century, as many
as 72,000 people are estimated to have been execut-
ed under the reign of Henry VIII. Common execution
methods used during this time included boiling,
burning at the stake, hanging, beheading, and draw-
ing and quartering. Various capital offenses included
marrying a Jew, not confessing to a crime, and
TREASON.
The number of capital crimes in Britain increased
throughout the next two centuries. By the 1700s,
over two hundred crimes were punishable by death
in Britain, including stealing, cutting down a tree,
and robbing a rabbit warren. However, due to the se-
verity of the death penalty, many juries would not
convict defendants if offenses were not serious. Such
beliefs led to early reform of Britain’s death penalty.
From 1823 to 1837, the death sentence was eliminat-
ed for over half of the crimes previously punishable
by death.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 323
The United States and the Death Penalty
In colonial North America, use of the death penal-
ty was strongly influenced by European practices.
When European settlers came to the new world, they
brought along their practice of CAPITAL PUNISHMENT.
In the territory now recognized as the United States,
the first known execution was that of Captain George
Kendall in the Jamestown colony of Virginia in 1608.
Kendall was executed for being a spy for Spain. In
1612, Virginia governor Sir Thomas Dale enacted the
Divine, Moral and Martial Laws, which provided the
death penalty for even minor offenses such as steal-
ing grapes, killing chickens, and trading with Indians.
Death penalty laws varied considerably from colo-
ny to colony. The Massachusetts Bay Colony held its
first execution in 1630, although the Capital Laws of
New England did not go into effect until many years
later. The New York Colony instituted the Duke’s
Laws of 1665. Under these laws, offenses such as
striking one’s mother or father or denying the ‘‘true
God,’’ were punishable by death.
The Abolitionist Movement
The Colonial Period
The abolitionist movement is rooted in the writ-
ings of European social theorists Montesquieu, Vol-
taire, and Bentham, and English Quakers John Bel-
lers and John Howard. However, it was a 1767 essay,
On Crimes and Punishment, written by Cesare Bec-
caria, which principally influenced thinking about
punishment throughout the world. Beccaria wrote
that there was no justification for the state’s taking
of a life. The essay gave abolitionists an authoritative
voice and renewed energy, one result of which was
the ABOLITION of the death penalty in Austria and
Tuscany. Scholars in the United States were also af-
fected by Beccaria’s work. The first known attempted
reforms of the death penalty in the United States oc-
curred when Thomas Jefferson introduced a bill to
revise Virginia’s capital punishment laws, recom-
mending that the death penalty be used only in the
case of murder and treason offenses. Jefferson’s bill
was defeated by one vote.
Other challenges to early capital punishment laws
were based on the idea that the death penalty was
not a true deterrent. Dr. Benjamin Rush, founder of
the Pennsylvania Prison Society, believed in the bru-
talization effect and argued that having a death pen-
alty actually increased criminal behavior. Benjamin
Franklin and Philadelphia attorney general William
Bradford supported Rush. Bradford, who would later
become the U. S. attorney general, led Pennsylvania
to become the first state to consider degrees of mur-
der based on culpability. In 1794, Pennsylvania re-
pealed the death penalty for all offenses except pre-
meditated murder.
The Nineteenth Century
In the early to mid-nineteenth century United
States, the abolitionist movement gained support in
the northeast. In the early part of the century, many
states reduced the number of capital crimes and built
state penitentiaries. In 1834, Pennsylvania became
the first state to move executions away from the pub-
lic by carrying them out in correctional facilities. In
1846, Michigan was the first state to abolish the death
penalty for all crimes except treason. Later, Rhode Is-
land and Wisconsin abolished the death penalty for
all crimes. By the end of the century, the countries
of Venezuela, Portugal, Netherlands, Costa Rica, Bra-
zil, and Ecuador followed suit. While some states
began abolishing the death penalty, most held onto
it. Some states even made more crimes punishable
by death, especially those committed by slaves. In
1838, in an effort to make the death penalty more ac-
ceptable to the public, some states began passing
laws against mandatory death sentencing, instead en-
acting discretionary death penalty statutes. The 1838
enactment of discretionary death penalty statutes in
Tennessee and later in Alabama were seen as a great
reform. This introduction of sentencing discretion in
the capital process was perceived as a victory for abo-
litionists because prior to the enactment of these
statutes, all states mandated the death penalty for
anyone convicted of a capital crime, regardless of cir-
cumstances. With the exception of a small number
of rarely committed crimes in a few jurisdictions, all
mandatory capital punishment laws were abolished
by 1863.
During the Civil War, opposition to the death pen-
alty diminished, as more attention was given to the
anti-slavery movement. After the war, new develop-
ments in the means of executions emerged. In 1888,
the electric chair was introduced in the state of New
York. In 1890 William Kemmler became the first man
executed by electrocution. Other states followed
New York and used the electric chair as the primary
method of execution.
The Progressive Period
While some states eliminated the death penalty in
the mid-nineteenth century, it was the first half of the
twentieth century that marked the beginning of the
CRIMINAL LAW—DEATH PENALTY
324 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Progressive Period of reform in the United States.
From 1907 to 1917, six states completely outlawed
the death penalty, and three limited it to the rarely
committed crimes of treason and first-degree mur-
der of a law enforcement official. These reforms did
not last long. There was a frenzied atmosphere in the
United States, as citizens began to panic about the
threat of revolution in the wake of the Russian Revo-
lution. In addition, the United States had recently en-
tered World War I, and there were intense class con-
flicts as socialists mounted the first serious challenge
to capitalism. By 1920, these circumstances led five
of the six abolitionist states to return to capital pun-
ishment.
In 1924, the use of cyanide gas was introduced in
the state of Nevada as a more humane way of execu-
tion. Gee Jon was the first person executed by lethal
gas. The state tried to pump cyanide gas into Jon’s
cell while he slept, but this proved impossible, and
the gas chamber was constructed.
From the 1920s to the 1940s, there was a revival
in the use of the death penalty, due, in part, to the
writings of criminologists, who argued that the death
penalty was a necessary social measure. In the United
States, people were suffering through Prohibition
and the Great Depression. There were more execu-
tions in the 1930s than in any other decade in U. S.
history, an average of 167 per year.
In the 1950s, however, public sentiment began to
turn against capital punishment. Many allied nations
either abolished or limited the death penalty, and in
the U. S., the number of executions dropped dramat-
ically. Whereas there were 1,289 executions in the
1940s, there were 715 in the 1950s, and the number
fell even further, to only 191, from 1960 to 1976. In
1966, support for capital punishment reached an all-
time low. A Gallup poll showed support for the death
penalty at only 42%.
The United States Constitution and the
Death Penalty
Death Penalty Challenges
The 1960s brought challenges to the presumed le-
gality of the death penalty. Before then, the Fifth,
Eighth, and Fourteenth Amendments were interpret-
ed as permitting the death penalty. However, in the
early 1960s, it was suggested that the death penalty
was a ‘‘cruel and unusual’’ punishment and, there-
fore, unconstitutional under the Eighth Amendment.
In 1958, the Supreme Court decided in Trop v. Dul-
les (356 U. S. 86), that the Eighth Amendment con-
tained an ‘‘evolving standard of decency that marked
the progress of a maturing society.’’ Although Trop
was not a death penalty case, abolitionists applied
the Court’s logic to executions and maintained that
the United States did indeed progress to a point that
its ‘‘standard of decency’’ should no longer tolerate
the death penalty. In the late 1960s, the Supreme
Court began to reconsider the way the death penalty
was administered. In 1968, the Court heard two cases
which dealt with prosecutorial and jury discretion in
capital cases. In U. S. v. Jackson (390 U.S. 570), the
Supreme Court heard arguments regarding a provi-
sion of the federal KIDNAPPING STATUTE requiring that
the death penalty be imposed only upon recommen-
dation of a jury. The Court held that this practice was
unconstitutional because it encouraged defendants
to waive their right to a jury trial to ensure they
would not receive a death sentence.
In Witherspoon v. Illinois (391 U. S. 510), the Su-
preme Court maintained that a potential juror’s res-
ervations about the death penalty were insufficient
grounds to prevent that person from serving on the
jury in a death penalty case. Jurors could be disquali-
fied only if prosecutors could show that their atti-
tudes toward capital punishment would prevent
them from making an IMPARTIAL decision about the
punishment.
In 1971, the Supreme Court twice addressed the
problems associated with the role of jurors and their
discretion in capital cases, in Crampton v. Ohio and
McGautha v. California (consolidated under 402 U.
S. 183). The defendants argued it was a violation of
their Fourteenth Amendment right to due process
for jurors to have unrestricted discretion in deciding
whether the defendants should live or die, and such
discretion resulted in arbitrary and capricious sen-
tencing. Crampton also argued that it was unconsti-
tutional to have his guilt and sentence determined
in one set of deliberations, as the jurors in his case
were instructed that a first-degree murder
CONVICTION would result in a death sentence. The
Court rejected these claims, thereby approving of
unfettered jury discretion and a single proceeding to
determine guilt and sentence. The Court stated that
guiding capital sentencing discretion was ‘‘beyond
present human ability.’’
Temporary Abolition of the Death Penalty
The issue of arbitrariness of the death penalty was
again brought before the Supreme Court in 1972 in
Furman v. Georgia, Jackson v. Georgia, and Branch
CRIMINAL LAW—DEATH PENALTY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 325
v. Texas (known collectively as the landmark case
Furman v. Georgia (408 U. S. 238)). Furman, like
McGautha, argued that capital cases resulted in arbi-
trary and capricious sentencing. Furman, however,
was a challenge brought under the Eighth Amend-
ment, unlike McGautha, which was a Fourteenth
Amendment due process claim. With the Furman
decision the Supreme Court set the standard that a
punishment would be ‘‘cruel and unusual’’ if it were
too severe for the crime, if it were arbitrary, if it of-
fended society’s sense of justice, or it if were not
more effective than a less severe penalty.
In nine separate opinions, and by a vote of 5-4, the
Court held that Georgia’s death penalty statute,
which gave the jury full discretion in sentencing,
could result in arbitrary sentencing. The Court main-
tained that the scheme of punishment under the
statute was thus ‘‘cruel and unusual’’ and violated
the Eighth Amendment. As a result, the Supreme
Court voided forty death penalty statutes on June 29,
1972, thereby commuting the sentences of 629 death
row inmates in the United States and suspending the
death penalty because existing statutes were no lon-
ger valid.
Reinstatement of the Death Penalty
Although the separate opinions by Justices Bren-
nan and Marshall stated that the death penalty itself
was unconstitutional, the overall conclusion in Fur-
man was that the specific death penalty statutes
were unconstitutional. That decision by the Court
opened the door for states to revise death penalty
statutes to eliminate the problems cited in Furman.
Advocates of capital punishment began proposing
new statutes that they believed would end arbitrari-
ness of capital sentences. The states were led by Flor-
ida, which rewrote its death penalty statute only five
months after Furman. Shortly after, 34 other states
enacted new death penalty statutes. To address the
unconstitutionality of unguided jury discretion,
some states removed all discretion by mandating
capital punishment for those convicted of capital
crimes. This practice was ultimately found unconsti-
tutional by the Supreme Court in Woodson v. North
Carolina (428 U.S. 280 [1976]).
Other states began to limit discretion by providing
sentencing guidelines for judges and juries consider-
ing death sentences. Such guidelines allowed for the
introduction of aggravating and mitigating factors in
sentencing. In 1976, the Supreme Court approved
these discretionary guidelines in Gregg v. Georgia
(428 U. S. 153), Jurek v. Texas (428 U. S. 262), and
Proffitt v. Florida (428 U. S. 242), collectively re-
ferred to as the Gregg decision. This landmark deci-
sion held that the new death penalty statutes in Flori-
da, Georgia, and Texas were constitutional, thus
reinstating the death penalty in those states. Addi-
tionally, the Court maintained that the death penalty
itself was constitutional under the Eighth Amend-
ment.
In addition to sentencing guidelines, the Court
approved three additional reforms in the Gregg deci-
sion. The first was bifurcated trials, in which there are
separate deliberations for the guilt and penalty
phases of the trial. Only after the jury determines
that the DEFENDANT is guilty of capital murder does
it decide in a second trial whether the defendant
should be sentenced to death or given a lesser sen-
tence of prison time. Another reform was the prac-
tice of automatic APPELLATE review of convictions and
sentence. The final procedural reform was propor-
tionality review, a practice that assists states in identi-
fying and eliminating disparities in sentencing. The
state APPELLATE COURT can use this process to com-
pare the sentence in a case being reviewed with
other cases within the state, to see if it is dispropor-
tionate. Because the reforms were acknowledged by
the Supreme Court, some states wishing to reinstate
their death penalty sentences included them in re-
vised statutes. However, inclusion was not required
by the Court. Therefore, some of the resulting new
statutes include variations on the procedural reforms
found in Gregg.
The ten-year moratorium on executions that
began with the Jackson and Witherspoon decisions
ended on January 17, 1977, with the execution of
Gary Gilmore by firing squad in Utah. Gilmore did
not challenge his death sentence. That same year,
Oklahoma became the first state to adopt lethal in-
jection as a means of execution, though it would be
five more years until Charles Brooks became the first
person executed by lethal injection in Texas on De-
cember 2, 1982.
Recent Developments in the Death
Penalty
Capital Punishment at the Federal Level
In addition to the death penalty laws in many
states, the federal government has also employed
capital punishment for certain federal offenses, such
as murder of a government official, kidnapping re-
sulting in death, running a large-scale drug enter-
CRIMINAL LAW—DEATH PENALTY
326 GALE ENCYCLOPEDIA OF EVERYDAY LAW
prise, and treason. When the Supreme Court struck
down state death penalty statutes in Furman, the
federal death penalty statutes suffered from the same
problems that the state statutes did. As a result,
death sentences under the old federal death penalty
statutes have not been upheld.
In 1988, a new federal death penalty statute was
enacted for murder in the course of a drug-kingpin
CONSPIRACY. The statute was modeled on the post-
Gregg statutes that the Supreme Court had ap-
proved. Since its enactment, six people have been
sentenced to death for violating this law, though
none has been executed.
In 1994, President Clinton signed the Violent
Crime Control and Law Enforcement Act that ex-
panded the federal death penalty to sixty crimes,
three of which do not involve murder. The excep-
tions are ESPIONAGE, treason, and drug trafficking in
large amounts.
Two years later, in response to the Oklahoma City
bombing of a federal building, President Clinton
signed the Anti-Terrorism and Effective Death Penal-
ty Act of 1996. The Act, which affects both state and
federal prisoners, restricts review in federal courts by
establishing stricter filing deadlines, limiting the op-
portunity for evidentiary hearings, and ordinarily al-
lowing only a single HABEAS CORPUS filing in federal
court. Proponents of the death penalty argue that
this streamlining will speed up the death penalty pro-
cess and significantly reduce its cost, although others
fear that quicker, more limited federal review may in-
crease the risk of executing innocent defendants.
Worldwide Abolition
In the 1980s the international abolition move-
ment gained momentum, and treaties proclaiming
abolition were drafted and ratified. Protocol No. 6 to
the European Convention on HUMAN RIGHTS and its
successors, the Inter-American Additional Protocol
to the American Convention on Human Rights to
Abolish the Death Penalty, and the United Nations’
Second Optional Protocol to the International Cove-
nant on Civil and Political Rights Aiming at the Aboli-
tion of the Death Penalty, were created with the goal
of making abolition of the death penalty an interna-
tional norm.
Today, the Council of Europe requires new mem-
bers to undertake and ratify Protocol No. 6. This re-
quirement has, in effect, led to the abolition of the
death penalty in Eastern Europe. For example, the
Ukraine, formerly one of the world’s leaders in exe-
cutions, halted the death penalty and was admitted
to the Council. South Africa’s parliament voted to
formally abolish the death penalty, which had earlier
been declared unconstitutional by the Constitutional
Court. In addition, in June 1999, Russian president,
Boris Yeltsin, signed a DECREE commuting the death
sentence for all of the convicts on Russia’s death row.
Capital Punishment Today
In April 1999, the United Nations Human Rights
Commission passed the Resolution Supporting
Worldwide Moratorium on Executions. The resolu-
tion calls on countries which have not abolished the
death penalty to restrict the use of the death penalty,
including not imposing it on juvenile offenders and
limiting the number of offenses for which it can be
imposed. Ten countries, including the United States,
China, Pakistan, Rwanda, and Sudan voted against
the resolution.
Currently, more than half of the countries in the
international community have abolished the death
penalty completely, de facto, or for ordinary crimes.
However, over ninety countries retain the death pen-
alty, including China, Iran, and the United States, all
of which ranked among the highest for international
executions in 1998.
Recent Death Penalty Statistics
Since the reinstatement of the death penalty in
Gregg v. Georgia, the majority of inmates under sen-
tence of death have been white. In 1999, the most
recent year for which Bureau of Justice Statistics data
were available, there were 1,948 white inmates on
death row, followed by 1,514 African-American in-
mates, 325 Hispanic inmates, 28 American Indian in-
mates, 24 Asian inmates, and 13 identified as ‘‘other
race.’’ In 1999, the most inmates per year (98) were
executed since the 1950s. The majority of executions
(94) conducted in 1999 were by lethal injection,
while a small number (3) were by electrocution, and
1 took place by lethal gas. The data available indicate
that almost two-thirds of those sentenced to death
had previous FELONY convictions, and slightly less
than ten percent had prior convictions for HOMICIDE.
Ages of inmates sentenced to death ranged from 18
to 84. Additionally, 50 women were under sentence
of death at the end of 1999.
Methods of Execution by State
In 2001, 38 of the fifty states in the United States
allow the death penalty. These states permit execu-
tions by the following means:
CRIMINAL LAW—DEATH PENALTY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 327
ALABAMA: electrocution
ARIZONA: gas chamber, lethal injection
ARKANSAS: electrocution, lethal injection
CALIFORNIA: gas chamber, lethal injection
COLORADO: lethal injection
DELAWARE: lethal injection
FLORIDA: electrocution
GEORGIA: electrocution
IDAHO: firing squad, lethal injection
ILLINOIS: lethal injection
INDIANA: electrocution
KANSAS: lethal injection
KENTUCKY: electrocution
LOUISIANA: lethal injection
MARYLAND: gas chamber
MISSISSIPPI: gas chamber, lethal injection
MISSOURI: lethal injection
MONTANA: hanging, lethal injection
NEBRASKA: electrocution
NEVADA: lethal injection
NEW HAMPSHIRE: lethal injection
NEW JERSEY: lethal injection
NEW MEXICO: lethal injection
NEW YORK: lethal injection
NORTH CAROLINA: gas chamber, lethal injection
OHIO: electrocution, lethal injection
OKLAHOMA: lethal injection
OREGON: lethal injection
PENNSYLVANIA: lethal injection
RHODE ISLAND: electrocution
SOUTH CAROLINA: electrocution
SOUTH DAKOTA: lethal injection
TENNESSEE: electrocution
TEXAS: lethal injection
UTAH: firing squad, lethal injection
VIRGINIA: electrocution, lethal injection
WASHINGTON: hanging, lethal injection
WYOMING: lethal injection
Additional Resources
Amnesty International, List of Abolitionist and Retention-
ist Countries. Report ACT 50/01/99. 1999.
Corrections in America. Harry E. Allen and Clifford E. Si-
monsen, Prentice Hall, 1995.
Deathquest: An Introduction to the Theory and Practice
of Capital Punishment in the United States. Robert
Bohm, Anderson Publishing, 1999.
Death Work: A Study of the Modern Execution Process.
Robert Johnson, Wadsworth Press, 1998.
Discipline and Punish: The Birth of the Prison. Michel Fo-
cault, Vintage Books, 1977.
The Abolition of the Death Penalty in International Law.
William Schabas, Cambridge University Press, 1997.
The Dilemmas of Corrections: Contemporary Readings,
4th Edition. Kenneth C. Haas and Geoffrey P. Alpert,
Waveland Press, Inc., 1999.
Organizations
Death Penalty Information Center
1320 Eighteenth Street NW
Washington, D.C. 20036 USA
Phone: (202) 293-6970
Fax: (202) 822-4787
URL: http://www.deathpenaltyinfo.org/
Federal Bureau of Prisons
320 First Street NW
Washington, DC 20534 USA
Phone: (202) 307-3198
URL: http://www.bop.gov/
National Institute of Corrections
1860 Industrial Circle, Suite A
Longmont, CO 80501 USA
Fax: (303) 682-0213
Toll-Free: 800-877-1461
URL: http://www.nicic.org/
CRIMINAL LAW—DEATH PENALTY
328 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CRIMINAL LAW
DOUBLE JEOPARDY
Sections within this essay:
• Background
• Policy Considerations Underlying the Right
Against Double Jeopardy
• The Common Law Development of the
Right Against Double Jeopardy
- Where Jeopardy Applies
- When Jeopardy Attaches
- When Jeopardy Terminates
- What Constitutes the Same Offense
• State Court Decisions Interpreting State
Constitutional Provisions Governing Double
Jeopardy
• Additional Resources
Background
The DOUBLE JEOPARDY clause in the Fifth Amend-
ment to the U. S. Constitution prohibits the govern-
ment from prosecuting individuals more than one
time for a single offense and from imposing more
than one punishment for a single offense. It provides
that ‘‘No person shall . . . be subject for the same of-
fence to be twice put in JEOPARDY of life or limb.’’
Most state constitutions also guarantee this right to
defendants appearing in state court. Even in states
that do not expressly guarantee this right in their
laws, the protection against double jeopardy must
still be afforded to criminal defendants because the
Fifth Amendment’s Double Jeopardy Clause has
been made applicable to state proceedings via the
doctrine of incorporation.
Under this doctrine, the Supreme Court has ruled
in a series of cases that the Due Process and EQUAL
PROTECTION Clauses of the Fourteenth Amendment
guarantee to the citizens of every state the right to
exercise certain fundamental liberties. These liber-
ties include, but are not limited to, every liberty set
forth in the BILL OF RIGHTS, except the Second
Amendment right to bear arms, the Third Amend-
ment right against quartering soldiers, the Seventh
Amendment right to trial by jury in civil cases, and
the Fifth Amendment right to INDICTMENT by GRAND
JURY.
The concept of double jeopardy is one of the old-
est in Western civilization. In 355 B. C. Athenian
statesmen Demosthenes said that the ‘‘law forbids
the same man to be tried twice on the same issue.’’
The Romans codified this principle in the Digest of
Justinian in 533 A. D. The principle also survived the
Dark Ages (400-1066 A.D.) through the CANON LAW
and the teachings of early Christian writers, notwith-
standing the deterioration of other Greco-Roman
legal traditions.
In England the protection against double jeopar-
dy was considered a universal maxim of the COMMON
LAW and was embraced by eminent jurists Henry de
Bracton (1250), Sir Edward Coke (1628), Sir Matthew
Hale (1736), and Sir William Blackstone (1769). How-
ever, the English double jeopardy doctrine was ex-
tremely narrow. It afforded protection only to defen-
dants ACCUSED of capital felonies and applied only
after CONVICTION or ACQUITTAL. It did not apply to
cases dismissed prior to final judgment and was not
immune to flagrant abuse by the British Crown.
The American colonists were intimately familiar
with the writings of Bracton, Coke, and Hale. Copies
GALE ENCYCLOPEDIA OF EVERYDAY LAW 329
of Blackstone’s Commentaries on English law were
available in most of the colonies, and Blackstone’s
teachings were often quoted by the colonists in sup-
port of their claims that Parliament was exceeding its
lawful authority.
The colonists were also familiar with how narrow-
ly the right against double jeopardy had been de-
fined in England. During the constitutional conven-
tion James Madison sought to enlarge the definition
by making the right against double jeopardy applica-
ble to all crimes not just capital felonies. Yet Madi-
son’s original draft of the Double Jeopardy Clause
was perceived by some as too restrictive. It provided
that ‘‘No person shall be subject . . . to more than one
punishment or one trial for the same offense’’ (Unit-
ed States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104
L. Ed. 2d 487 [1989]). Several House members ob-
jected to this wording, arguing that it could be mis-
construed to prevent defendants from seeking a sec-
ond trial on appeal following conviction. Although
the language of the Fifth Amendment was modified
to address this concern, the final version ratified by
the states left other questions for judicial interpreta-
tion.
Policy Considerations Underlying the
Right Against Double Jeopardy
Five policy considerations underpin the right
against double jeopardy, sometimes known as the
right against former jeopardy: (1) preventing the
government from employing its superior resources
to wear down and erroneously convict innocent per-
sons; (2) protecting individuals from the financial,
emotional, and social consequences of successive
prosecutions; (3) preserving the finality and integrity
of criminal proceedings, which would be compro-
mised were the government allowed to arbitrarily ig-
nore unsatisfactory outcomes; (4) restricting pro-
secutorial discretion over the charging process; and
(5) eliminating judicial discretion to impose cumula-
tive punishments that are otherwise not clearly pro-
hibited by law.
The Common Law Development of the
Right Against Double Jeopardy
Double jeopardy LITIGATION revolves around four
central questions: In what type of legal proceeding
does double jeopardy protection apply? When does
jeopardy begin, or, in legal parlance, attach? When
does jeopardy terminate? What constitutes succes-
sive prosecutions or punishments for the same of-
fense? Although courts have answered the second
and third questions with some clarity, they continue
struggling over the first and last questions.
Where Jeopardy Applies
Only certain types of LEGAL PROCEEDINGS invoke
double jeopardy protection. If a particular proceed-
ing does not place an individual in jeopardy, then
subsequent proceedings against that individual for
the same conduct are not prohibited. The text of the
Fifth Amendment suggests that the protection
against double jeopardy extends only to proceedings
threatening ‘‘life or limb.’’ Nevertheless, the Su-
preme Court has established that the right against
double jeopardy is not limited to capital crimes or
corporeal punishment but extends to all felonies,
misdemeanors, and juvenile delinquency adjudica-
tions, regardless of the punishments they prescribe.
In Benton v. Maryland, 39 U.S. 784, 89 S. Ct. 2056,
23 L. Ed.2d 707 (1969), the U. S. Supreme Court
ruled that the Fifth Amendment’s Double Jeopardy
Clause is applicable to both state and federal pro-
ceedings. Prior to this ruling, an individual accused
of violating state law could rely only on that particu-
lar state’s protection against double jeopardy. Some
states offered greater protection against double jeop-
ardy than did others, and frequently the level of pro-
tection offered was less than that offered under the
federal Constitution. The Supreme Court said this
was impermissible.
Relying on the doctrine of incorporation de-
scribed above, the Court held that the right against
double jeopardy is so important that each state must
afford criminal defendants at least the same amount
of protection from multiple prosecutions and pun-
ishments that is afforded by the federal government
under the Fifth Amendment. Consequently, state
courts cannot provide their residents with less pro-
tection against double jeopardy than is offered by
federal courts, though variations in the level of pro-
tection offered can still arise when states offer their
residents more protection under their state constitu-
tional provisions than is provided under the federal
Constitution.
The Supreme Court has also ruled that the right
against double jeopardy precludes only subsequent
criminal proceedings. It does not preclude subse-
quent civil proceedings or administrative proceed-
ings (e.g., a license revocation HEARING) against a
person who has already been prosecuted for the
same act or omission, even if that person is fined in
CRIMINAL LAW—DOUBLE JEOPARDY
330 GALE ENCYCLOPEDIA OF EVERYDAY LAW
the later civil or administrative proceeding. Nor is
prosecution barred by double jeopardy if it is preced-
ed by a final civil or administrative determination on
the same issue.
Courts have drawn a distinction between criminal
proceedings on the one hand and civil or administra-
tive proceedings on the other, based on the different
purposes served by each. Criminal proceedings are
punitive in nature and serve the purposes of deter-
rence and retribution. Civil and administrative pro-
ceedings are more remedial in nature. Civil proceed-
ings, for example, seek to compensate injured
persons for any losses they have suffered, while ad-
ministrative proceedings can serve various remedial
functions (e.g., license revocation) unrelated to de-
terrence or retribution. Because civil, administrative,
and criminal proceedings serve different objectives,
a single course of conduct can give rise to multiple
trials in different types of courtrooms.
The multiple legal proceedings brought against O.
J. (Orenthal James) Simpson over the death of Nicole
Brown Simpson and Ronald Lyle Goldman illustrate
these various objectives. The state of California pros-
ecuted Simpson for the murders of his former wife
and her friend. Despite Simpson’s acquittal in crimi-
nal court, the families of the two victims filed three
civil suits against him. The criminal proceedings had
been instituted to punish Simpson, incarcerate him,
and deter others from similar behavior. The civil suits
were designed in part to make the victims’ families
whole by compensating them with money damages
for the losses they suffered.
When Jeopardy Attaches
While the differences between civil, criminal, and
administrative proceedings are not always perfectly
clear, courts have done a much better job of explain-
ing when jeopardy begins, or attaches. This question
is crucial because any action taken by the govern-
ment before jeopardy attaches, such as dismissing
the indictment, will not prevent later proceedings
against the same person for the same offense. Once
jeopardy has attached, the full array of Fifth Amend-
ment protections against multiple prosecutions and
multiple punishments takes hold.
The U. S. Supreme Court has held that jeopardy
attaches during a jury trial when the jury is sworn. In
criminal cases tried by a judge without a jury, also
called a bench trial, jeopardy attaches when the first
witness is sworn. Jeopardy begins in juvenile delin-
quency adjudications when the court first hears
EVIDENCE. If the DEFENDANT or juvenile enters a PLEA
agreement with the prosecution, jeopardy does not
attach until the plea is accepted by the court.
When Jeopardy Terminates
Determining when jeopardy terminates is no less
important than determining when it begins, but it is
a little more complicated. Once jeopardy has termi-
nated, the government cannot detain someone for
additional court proceedings on the same matter
without raising double jeopardy questions. If jeopar-
dy does not terminate at the conclusion of one pro-
ceeding, jeopardy is said to be ‘‘continuing,’’ and fur-
ther criminal proceedings are permitted. Jeopardy
can terminate in four instances: 1) after acquittal; 2)
after DISMISSAL; 3) after a MISTRIAL; and 4) on appeal
after conviction.
A jury’s verdict of acquittal terminates jeopardy,
and verdicts of acquittal cannot be overturned on ap-
peal even if there is overwhelming proof of a defen-
dant’s guilt or even if the trial judge committed re-
versible error in ruling on an issue at some point
during the proceedings. This fundamental maxim of
double jeopardy JURISPRUDENCE entrusts the jury
with the power to nullify criminal prosecutions taint-
ed by egregious misconduct on the part of the po-
lice, the PROSECUTOR, or the court, a tremendous bul-
wark against tyranny in a democratic society.
A jury can also implicitly ACQUIT a defendant. If a
jury has been instructed by the judge on the ele-
ments of a particular crime and a lesser-included of-
fense, and the jury returns a guilty verdict as to the
lesser offense but is silent as to the greater offense,
re-prosecution for the greater offense is barred by
the Double Jeopardy Clause. For example, a jury that
has been instructed as to the crimes of first- and sec-
ond-degree murder will implicitly acquit the defen-
dant of first-degree murder by returning a guilty ver-
dict only as to murder in the second degree. A not
guilty verdict as to the greater offense is inferred
from the jury’s silence.
Dismissals are granted by the trial court for mis-
cellaneous procedural errors and defects that oper-
ate as an absolute barrier to prosecution. For exam-
ple, the prosecution must establish that a court has
JURISDICTION over a defendant before prosecution
may commence. Failure to establish jurisdiction will
normally result in a dismissal upon an objection
raised by the defendant. Dismissals may be entered
before a jury has been impaneled, during trial, or
after conviction. But jeopardy must attach before a
dismissal implicates double jeopardy protection.
CRIMINAL LAW—DOUBLE JEOPARDY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 331
Once jeopardy attaches, a dismissal granted by
the court for insufficient evidence terminates jeopar-
dy and bars further prosecution with one exception.
The prosecution may appeal a dismissal entered after
the jury has returned a guilty verdict. If the APPELLATE
COURT reverses the dismissal, the guilty verdict can
be reinstated without necessitating a second trial. A
dismissal granted for lack of evidence after a case has
been submitted to a jury, but before a verdict has
been reached, may not be appealed by the state.
Re-prosecution is permitted and jeopardy contin-
ues against the defendant when a case is dismissed
by the court at the defendant’s request for reasons
other than sufficiency of the evidence. For example,
courts may dismiss a case when the defendant’s right
to a speedy trial has been denied by prosecutorial
pretrial delay. The Supreme Court has held that no
double jeopardy interest is triggered when defen-
dants obtain a dismissal for reasons unrelated to
their guilt or innocence (see United States v. Scott,
437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 [1978]).
Mistrials are granted when it has become impracti-
cable or impossible to finish a case. Courts typically
declare mistrials when jurors fail to unanimously
reach a verdict. Like dismissals, mistrials declared at
the defendant’s behest will not terminate jeopardy
or bar re-prosecution. Nor will a mistrial preclude re-
prosecution when it is declared with the defendant’s
consent. Courts disagree whether a defendant’s
mere silence is tantamount to consent.
A different situation is presented when a mistrial
is declared over the defendant’s objection. Re-
prosecution will be allowed only if the mistrial result-
ed from ‘‘manifest necessity,’’ a standard more rigor-
ous than ‘‘reasonably necessary’’ and less exacting
than ‘‘absolutely necessary.’’ A mistrial that could
have been reasonably avoided will terminate jeopar-
dy, but jeopardy will continue if the mistrial was un-
avoidable.
The manifest necessity standard has been satisfied
where mistrials have resulted from defective indict-
ments, disqualified or deadlocked jurors, and proce-
dural irregularities willfully occasioned by the defen-
dant. Manifest necessity is not present when mistrials
result from prosecutorial or judicial manipulation. In
each of these cases, courts balance the defendant’s
interests in finality against society’s interest in a fair
and just legal system.
Every defendant has the right to at least one ap-
peal after conviction. If the conviction is reversed on
appeal for insufficient evidence, it is treated as an ac-
quittal, and further prosecution is not permitted.
However, a defendant may be re-prosecuted when
the reversal is not based on lack of evidence. The
grounds for such reversals include defective search
warrants, unlawful seizure of evidence, and other so-
called ‘‘technicalities.’’ Retrials in these instances are
justified by society’s interest in punishing the guilty.
Defendants’ countervailing interests are subordinat-
ed when a conviction rendered by 12 jurors is over-
turned for reasons unrelated to guilt or innocence.
The interests of the accused are also subordinated
when courts permit prosecutors to seek a more se-
vere sentence during the retrial of a defendant
whose original conviction was thrown out on appeal.
Defendants who appeal their conviction assume the
risk that a harsher sentence will be imposed during
re-prosecution. However, in most circumstances,
courts are not permitted to impose a death sentence
on a defendant during a second trial when the jury
recommended life in prison during the first. The rec-
ommendation of life IMPRISONMENT is construed as
an acquittal on the issue of CAPITAL PUNISHMENT.
What Constitutes the Same Offense
The final question courts must resolve in double
jeopardy litigation is determining whether successive
prosecutions or punishments are for the ‘‘same of-
fense.’’ Jeopardy may have already attached and ter-
minated in a prior criminal proceeding, but the state
may bring further criminal action against a person so
long as it is not for the same offense. Courts have an-
alyzed this question in several ways, depending on
whether the state is attempting to re-prosecute a de-
fendant or impose multiple punishments.
At common law a single episode of criminal be-
havior produced only one prosecution, no matter
how many wrongful acts may have been committed
during that episode. But over the last fifty years the
proliferation of overlapping and related offenses has
made it possible for the government to PROSECUTE
someone for several different crimes stemming from
the same set of circumstances. For example, an indi-
vidual who has stolen a car to facilitate an abduction
resulting in attempted rape could be separately pros-
ecuted and punished for auto theft, KIDNAPPING, and
molestation. This development has significantly en-
larged prosecutors’ discretion over the charging pro-
cess.
The Supreme Court curbed this discretion in
Blockburger v. United States, 284 U.S. 299, 52 S.Ct.
180, 76 L.Ed. 306 (1932). The Court said that the gov-
CRIMINAL LAW—DOUBLE JEOPARDY
332 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ernment may prosecute an individual for more than
one offense stemming from a single course of con-
duct only when each offense requires proof of a fact
the other does not. Blockburger requires courts to
examine the elements of each offense as they are de-
lineated by STATUTE, without regard to the actual evi-
dence that will be introduced at trial. The prosecu-
tion has the burden of demonstrating that each
offense has at least one mutually exclusive element.
If any one offense is completely subsumed by anoth-
er, such as a lesser included offense, the two offenses
are deemed the same, and punishment is allowed
only for one.
Blockburger is the exclusive means by which
courts determine whether cumulative punishments
pass muster under the Double Jeopardy Clause. But
several other methods have been used by courts to
determine whether successive prosecutions are for
the same offense. COLLATERAL ESTOPPEL, which pre-
vents the same parties from relitigating ultimate fac-
tual issues previously determined by a valid and final
judgment, is one such method. In Ashe v. Swenson,
397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970),
the Supreme Court collaterally estopped the govern-
ment from prosecuting an individual for robbing one
of six men at a poker game when a jury had already
acquitted him of robbing another one of the six. Al-
though the second prosecution would have been
permitted under Blockburger because two different
victims were involved, the government here was not
allowed to rehearse its case and secure a conviction
against a person already declared not guilty of essen-
tially the same crime.
The ‘‘same transaction’’ analysis is another means
by which courts determine whether successive pros-
ecutions will survive constitutional scrutiny. It re-
quires the prosecution to join all offenses committed
during a continuous interval that share a common
factual basis and display a single goal or intent. The
same transaction test is used by many state courts to
bar successive prosecutions for the same offense.
However, no federal court has ever adopted it.
Both state and federal courts have employed the
‘‘actual evidence’’ test to preclude successive prose-
cutions for a single offense. Unlike Blockburger,
which examines the STATUTORY elements of proof,
the ‘‘actual evidence’’ test requires courts to com-
pare the evidence ‘‘actually’’ introduced during the
first trial with the evidence sought to be introduced
by the prosecution at the second trial. Criminal of-
fenses are characterized as the same when the evi-
dence necessary to support a conviction for one of-
fense would be sufficient to support a conviction for
the other.
Under the ‘‘same conduct’’ analysis the govern-
ment is forbidden from twice prosecuting an individ-
ual for the same criminal behavior, regardless of the
actual evidence introduced during trial and regard-
less of the statutory elements of the offense. For ex-
ample, this analysis has been applied to prevent
prosecuting someone for vehicular HOMICIDE result-
ing from drunk driving, when the defendant had
been earlier convicted for driving while under the in-
fluence of alcohol. The second prosecution would
have been permitted had the state been able to
prove the driver’s NEGLIGENCE without proof of his
INTOXICATION. The U. S. Supreme Court applied this
analysis for three years before abandoning it in 1993.
However, the ‘‘same conduct’’ analysis is still utilized
by some state courts interpreting their own constitu-
tions and statutes.
State Court Decisions Interpreting State
Constitutional Provisions Governing
Double Jeopardy
The U. S. Constitution and the Supreme Court
cases interpreting it establish the minimum amount
of protection that a state court must provide when
it is interpreting a section of the Bill of Rights that has
been made applicable to the states via the doctrine
of incorporation, including instances that require a
state court to interpret and apply the Double Jeopar-
dy Clause of the Fifth Amendment. A state court in-
terpreting the double jeopardy clause of its own con-
stitution may provide more protection than is
afforded by the federal constitution but not less.
Below is a sampling of cases decided in part based
on a state court’s interpretation of its own state con-
stitutional provision governing double jeopardy.
ALABAMA: Reintroduction of two prior convictions
at re-sentencing of the defendant for the purpose of
enhancement under the HABITUAL FELONY Offender
Act did not violate the Double Jeopardy Clauses of
the federal or state constitutions, even though the
convictions were not certified at original sentencing
hearing, where the defendant was put on notice at
the original sentencing hearing of the state’s inten-
tion to offer evidence of his prior felony convictions
(see Ex parte Randle, 554 So.2d 1138 (Ala. 1989); AL
Const. Art. I, § 9; Alabama Code 1975, §§ 13A-5-9,
13A-5-9(b)(2), (c)(2); U.S.C.A. Const. Amend. 5;
Const. § 9).
CRIMINAL LAW—DOUBLE JEOPARDY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 333
ARKANSAS: Although both the United States and Ar-
kansas constitutions provide that no person shall be
subjected to two punishments based on same of-
fense, remedial civil sanctions may be properly im-
posed without placing the person in jeopardy (see
Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (Ark.
2001); Const.Amend. 5; AR CONST Art. 2, § 8).
ARIZONA: If a mistrial is granted as result of conduct
that the prosecutor knew or should have known
would prejudice the defendant and that could not be
cured short of a mistrial, the double jeopardy clause
of the Arizona Constitution bars a retrial (see Beijer
v. Adams ex rel. County of Coconino, 196 Ariz. 79,
993 P.2d 1043, (Ariz.App. Div. 1 1999); AZ CONST
Art. 2 § 10).
CALIFORNIA: A court-ordered victim RESTITUTION im-
posed for the first time at re-sentencing following ap-
peal and partial reversal of the defendant’s murder
convictions was not considered a ‘‘punishment’’ and
was therefore not barred under California’s constitu-
tional double jeopardy provisions (see People v.
Harvest, 84 Cal.App.4th 641, 101 Cal.Rptr.2d 135,
(Cal.App. 1 Dist., Oct 31, 2000); West’s Ann.Cal.
Const. Art. 1, § 15; West’s Ann.Cal.Penal Code §
1202.4).
FLORIDA: The state’s constitutional double jeopardy
provision does not prohibit a defendant’s retrial
when a prior trial has been concluded by mistrial be-
cause of a HUNG JURY (see Lebron v. State, 2001 WL
987233, 26 Fla. L. Weekly S553 (Fla. 30, 2001); West’s
F.S.A. Const. Art. 1, § 9).
GEORGIA: The double jeopardy clause of state con-
stitution does not prohibit additional punishment
for a separate offense that the legislature has
deemed to WARRANT a separate SANCTION (see Mathis
v. State, 273 Ga. 508, 543 S.E.2d 712 (Ga. 2001); GA
Const. Art. 1, § 1, Par. 18).
ILLINOIS: The protection against double jeopardy af-
forded by the Illinois Constitution is no greater than
that provided by the U. S. Constitution (see People
v. Ortiz, 196 Ill.2d 236, 752 N.E.2d 410, 256 Ill.Dec.
530 (Ill. 2001); U.S.C.A. Const.Amend. 5; S.H.A.
Const. Art. 1, § 10).
MASSACHUSETTS: The double jeopardy provision of
the state constitution was not implicated by reuse of
evidence of drunk driving at the defendant’s trial on
the charge of vehicular homicide by negligent opera-
tion, even though the defendant was acquitted in the
first-tier trial on drunk driving charges, since in the
state’s two-tier trial system the defendant remained
in continuing jeopardy with regard to other offenses
for which he was originally convicted (see Commis-
sioner v. Woods, 414 Mass. 343, 607 N.E.2d 1024
(Mass. 1993); M.G.L.A. c. 218, § 26A).
MICHIGAN: Convictions and punishments for
INVOLUNTARY MANSLAUGHTER and operating a motor
vehicle while under the influence of intoxicating li-
quor (OUIL) causing death do not violate the Double
Jeopardy Clauses of the federal or state constitu-
tions, since the offenses protect distinct societal
norms, and the statute defining each offense re-
quires proof of an element that the other does not
(see People v. Kulpinski, 243 Mich.App. 8, 620
N.W.2d 537 (Mich.App. 2000); U.S.C.A.
Const.Amend. 5; M.C.L.A. Const. Art. 1, § 15; M.C.L.A.
§§ 257.625(4), 750.321).
MINNESOTA: FORFEITURE of a motorist’s vehicle after
he had been convicted and sentenced for
MISDEMEANOR driving while intoxicated (DWI) was
not double punishment in violation of the state con-
stitution’s double jeopardy clause, since the motorist
provided no basis for reading the state double jeop-
ardy clause more broadly than its federal counterpart
in the context of DWI-related vehicle forfeitures (see
Johnson v. 1996 GMC Sierra, 606 N.W.2d 455
(Minn.App. 2000); M.S.A. Const. Art. 1, § 7; M.S.A. §
169.1217).
NEW YORK: Defendant’s re-prosecution for first-
degree criminal CONTEMPT after being found guilty on
the lesser charge of second-degree criminal con-
tempt violated the Double Jeopardy Clauses of both
the federal and state constitutions, where the defen-
dant’s trial was originally on both charges and the de-
fendant was convicted on the second-degree charge
only after a partial mistrial was declared as to the
first-degree charge (People v. Campbell, 269 A.D.2d
460, 703 N.Y.S.2d 498 (N.Y.A.D. 2 Dept. 2000);
U.S.C.A. Const.Amends. 5, 14; McKinney’s Const. Art.
1, § 6).
TEXAS: A defendant’s conviction for ASSAULT of a
public servant did not violate the double jeopardy
provisions of either the federal or state constitutions,
even though the defendant had already received
prison discipline for the same incident, since prison
sanctions are not considered ‘‘punishment’’ for the
purposes of double jeopardy analysis (see Rogers v.
State, 44 S.W.3d 244 (Tex.App. 2001); U.S.C.A.
Const.Amend. 5; Vernon’s Ann.Texas Const. Art. 1, §
14).
CRIMINAL LAW—DOUBLE JEOPARDY
334 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Additional Resources
American Jurisprudence. Lawyers Co-operative Publish-
ing Company, 2001.
Criminal Procedure. Wayne R. LaFave, Jerold H. Israel,
and Nancy J. King, West Group, 2001.
http://supreme.lp.findlaw.com/constitution/
amendment05/02.htmlFindLaw: Double Jeopardy,
2001.
Oxford Companion to the Supreme Court. Kermit Hall,
ed., Oxford University Press, 1992.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Civil Liberties Union (ACLU)
1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
E-Mail: info@aclu.org
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive
Director
Association of Federal Defense Attorneys
8530 Wilshire Blvd., Suite 404
Beverly Hills, CA 90211 USA
Phone: (714) 836-6031
Fax: (310) 397-1001
E-Mail: AFD A2@AOL.com
URL: http://www.afda.org
Primary Contact: Gregory Nicolaysen, Director
National District Attorneys Association
(NDAA)
99 Canal Center Plaza
Alexandria, VA 22314 USA
Phone: (703) 549-9222
Fax: (703) 836-3195
URL: http://w ww.ndaa.org
Primary Contact: Thomas J. Charron, Director
CRIMINAL LAW—DOUBLE JEOPARDY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 335
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CRIMINAL LAW
EVIDENCE
Sections within this essay:
• Background
• Admissibility
• Real Evidence
• Demonstrative Evidence
• Documentary Evidence
• Testimony
• Leading Questions
• The Lay Opinion Rule
• Character
• Hearsay
• Privileges
• Presumptions
• Judicial Notice
• Additional Resources
Background
The law of EVIDENCE governs how parties, judges,
and juries offer and then evaluate the various forms
of proof at trial. In some ways, evidence is an exten-
sion of civil and CRIMINAL PROCEDURE. Generally, evi-
dence law establishes a group of limitations that
courts enforce against attorneys in an attempt to
control the various events that the trial process pres-
ents in an adversarial setting. There are many argu-
ments in favor of evidence law; here are five of the
most common ones:
1. To ameliorate pervasive mistrust of juries
2. To further legal or social policies relating
to a matter being litigated
3. To further substantive policies unrelated
to the matter in suit
4. To create conditions to receive the most
accurate facts in trials
5. To manage the scope and duration of trials
In the United States, the federal courts must fol-
low the Federal Rules of Evidence (FRE); state courts
generally follow their own rules, which are generally
imposed by the various state legislatures upon their
respective state courts. The FRE is the most influen-
tial body of American evidence law. The FRE encom-
passes the majority of the laws of evidence in 68 brief
sections. Its language is accessible, easy to read, and
mostly free of technical jargon and complicated
cross-referencing. The FRE has been enormously in-
fluential in the development of U. S. evidence law.
This influence in part is a result of its brevity and sim-
plicity.
Before 1975, U. S. evidence law was mostly a crea-
ture of the COMMON LAW tradition. The FRE was draft-
ed and proposed by a distinguished advisory com-
mittee composed of practitioners, judges, and law
professors appointed by the United States Supreme
Court. Just 20 years after the FRE was adopted in the
federal system, almost three-quarters of the states
had adopted codes that closely resemble the FRE.
The FRE applies in all federal courts in both crimi-
nal and civil cases. Understanding some of the basic
provisions of the FRE will enable most people to fig-
ure out what is going on at trial, even if there are de-
viations between the FRE and applicable state laws
of evidence.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 337
Admissibility
Evidence comes in four basic forms:
1. Demonstrative evidence
2. DOCUMENTARY EVIDENCE
3. REAL EVIDENCE
4. Testimonial evidence
Some rules of evidence apply to all four types and
some rules apply to one or two of them. All of these
forms of evidence must be ADMISSIBLE, though, be-
fore they can be considered as probative of an issue
in a trial.
Basically, if evidence is to be admitted at court, it
must be relevant, material, and competent. To be
considered relevant, it must have some reasonable
tendency to help prove or disprove some fact. It
need not make the fact certain, but at least it must
tend to increase or decrease the likelihood of some
fact. Once admitted as relevant evidence, the finder
of fact (judge or jury) will determine the appropriate
weight to give a particular piece of evidence. A given
piece of evidence is considered material if it is of-
fered to prove a fact that is in dispute in a case. Com-
petent evidence is that evidence that accords with
certain traditional notions of reliability. Courts are
gradually diminishing the competency rules of evi-
dence by making them issues related to the WEIGHT
OF EVIDENCE.
Real Evidence
Real evidence is a thing. Its existence or character-
istics are considered relevant and material to an issue
in a trial. It is usually a thing that was directly involved
in some event in the case, such as a murder weapon,
the personal effects of a victim, or an artifact like a
cigarette or lighter belonging to a suspect. Real evi-
dence must be relevant, material, and competent be-
fore a judge will permit its use in a trial. The process
whereby a lawyer establishes these basic prerequi-
sites (and any additional ones that may apply), is
called laying a foundation. In most cases, the rele-
vance and materiality of real evidence are obvious. A
lawyer establishes the evidence’s competence by
showing that it really is what it is supposed to be. Es-
tablishing that real or other evidence is what it pur-
ports to be is called AUTHENTICATION.
Demonstrative Evidence
Evidence is considered ‘‘demonstrative’’ if it dem-
onstrates or illustrates the TESTIMONY of a witness. It
is admissible when it fairly and accurately reflects the
witness’s testimony and is otherwise unobjection-
able. Maps, diagrams of a crime scene, charts and
graphs that illustrate profits and losses are examples
of demonstrative evidence.
Documentary Evidence
Evidence contained in or on documents can be a
form of real evidence. For example, a contract of-
fered to prove the terms it contains is both docu-
mentary and real evidence. When a party offers a
document into evidence, the party must authenti-
cate it the same way as any other real evidence, ei-
ther by a witness who can identify the document or
by witnesses who can establish a chain of CUSTODY
for the document.
When people deal with documentary evidence, it
is a good idea to consider these four potential pit-
falls:
• Parol evidence
• Best evidence
• Authentication
• HEARSAY
The parol evidence rule prohibits the admission
of certain evidence concerning the terms of a written
agreement. Parol evidence is usually considered an
issue of substantive law, rather than a pure evidenti-
ary matter.
A party can authenticate documentary evidence in
much the same way as it can authenticate other real
evidence. Also, some kinds of documents are essen-
tially self-authenticating under the FRE. Some of
these are:
• Acknowledged documents to prove the ac-
knowledgment
• Certain COMMERCIAL PAPER and related docu-
ments
• Certificates of the custodians of business re-
cords
• Certified copies of public records
• Newspapers
• Official documents
CRIMINAL LAW—EVIDENCE
338 GALE ENCYCLOPEDIA OF EVERYDAY LAW
• Periodicals
• Trade inscriptions
The best evidence rule states that when the con-
tents of a written document are offered in evidence,
the court will not accept a copy or other proof of the
document’s content in place of the original docu-
ment unless an adequate explanation is offered for
the absence of the original. The FRE permits the use
of mechanically reproduced documents unless one
of the parties has raised a genuine question about
the accuracy of the copy or can somehow show that
its use would be unfair. Also under the FRE, summa-
ries or compilations of lengthy documents may be re-
ceived into evidence as long as the other parties have
made the originals available for EXAMINATION.
Testimony
Evidence given in the form of testimony is per-
haps the most basic type of evidence. Testimonial ev-
idence consists of what a competent witness at the
proceeding in question says in court. Generally, wit-
nesses are competent if they meet four broad re-
quirements:
1. The witnesses must take the oath or a sub-
stitute and understand the oath,
2. The witnesses must have personal knowl-
edge about the subject of their testimony.
3. The witnesses must recall what was per-
ceived
4. The witnesses must be able to communi-
cate what they perceived
The courts interpret competency quite liberally,
which means that testimony based on the competen-
cy of a witness is rarely excluded
If at trial witnesses forgets their testimony, the at-
torney may help to refresh their memory in four
ways:
1. First, the attorney can ask the judge for a
recess to allow the witnesses time to calm
down or otherwise collect themselves.
2. Second, the attorney can ask the witnesses
a LEADING QUESTION to try to refresh their
memory.
3. Third, the attorney can attempt to refresh
the witness’s recollection through a pro-
cess known as past recollection refreshed.
The witnesses must first say that they can-
not remember the facts the attorney is try-
ing to elicit from them. Then they must say
that the refreshing object might help him
them to remember. Almost anything that
they says might help them can be used to
help refresh their memory such as notes,
photographs, an item of clothing, a smell,
or some other object of some sort.
4. Fourth, the attorney can offer a writing as
a past recollection recorded. The witness-
es must first claim that they cannot re-
member the facts the attorney is trying to
elicit from her. Next, the attorney presents
the writing or other recording the attorney
intended to use for the witness. If the at-
torney can refresh the witness’s memory,
they will be allowed to answer the ques-
tion. If the writing does not refresh their
memory, they must then identify the writ-
ing as one that they made or saw when hey
did remember the fact in question and that
they knew then that the writing was accu-
rate.
Leading Questions
A leading question actually suggests an answer or
substitutes the words of the questioning attorney for
those of the witness. Many leading questions call for
answers of either ‘‘yes’’ or ‘‘no.’’ But not all questions
that call for an answer of ‘‘yes’’ or ‘‘no’’ are leading
questions.
Judges have discretion to allow leading questions
during the DIRECT EXAMINATION of a witness when the
questions have the following traits:
• Deal with simple background issues
• Will help to elicit the testimony of a witness
who, due to age, incapacity, or limited intel-
ligence, is having difficulty communicating
her evidence
• Are asked of an adverse or hostile witness.
Witnesses are considered adverse or hostile
when their interests or sympathies may lead
them to resist testifying truthfully. In most
cases, an adverse party or a witness associat-
ed with an adverse party is considered hos-
tile for the purposes of this rule
Questions that call for a narrative answer are more
or less the opposite of leading questions. Questions
CRIMINAL LAW—EVIDENCE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 339
that call for a narrative often produce long speeches
that can waste the time of the court and the parties.
These kinds of questions are very unpopular with
courts and should be avoided.
During CROSS-EXAMINATION, attorneys may only
ask about subjects that were raised upon the direct
examination of the witness, including CREDIBILITY. If
cross-examiners stray into a new topical area, the
judge may permit them to do so in the interest of
time or efficiency, but harassment of the witness is
not permitted under any circumstances.
The Lay Opinion Rule
Witnesses must answer questions in the form of
statements of what they saw, heard, felt, tasted, or
smelled. Usually they are not permitted to express
their opinions or draw conclusions. Under the FRE,
a court will permit a person who is not testifying as
an expert to TESTIFY in the form of an opinion if the
opinion is both rationally based on his perception
and helps to explain the witness’s testimony. Addi-
tionally, a competent layperson may provide opin-
ions on certain subjects that are specifically permit-
ted by rule, STATUTE, or CASE LAW. Some of these are:
• Another person’s identity
• Another person’s sanity
• Demeanor, mood, or intent
• Identification of handwriting
• Intoxication or sobriety
• Ownership
• The state of health, sickness, or injury
• Speed, distance, and size
• The value of a witness’s own property
Opinion testimony is not necessarily objectionable
even if such testimony goes to the ultimate issue to
be decided in the trial
Extrinsic evidence is evidence other than the an-
swers of the witness whose testimony is being im-
peached. It may be offered to prove facts relevant to
impeaching a witness. In addition to extrinsic evi-
dence, a party may attack the credibility of another
witness by attempting to show that the witness is or
has:
1. Bias, prejudice, interest in the issue, or
corruption
2. Criminal convictions, or other prior bad
acts
3. Prior inconsistent statements
4. An untruthful character
There are some limits to questioning a witness
about a prior criminal CONVICTION. However, accord-
ing to the FRE, a witness may generally be ques-
tioned about criminal convictions when the crime
was punishable by a sentence of more than a year or
involved FRAUD or a false statement such as PERJURY.
Before people attempt to use such evidence in a trial,
they need to understand the limits to this kind of evi-
dence.
The FRE allows questions about prior bad acts of
a witness to IMPEACH that witness’s credibility where,
in the court’s discretion, the questions will help get
at the truth. Thus, an attorney may ask questions
about prior inconsistent statements if the following
apply:
• The questioner has a GOOD FAITH basis for
believing that the witness made an inconsis-
tent statement
• The witness needs to be reminded of the
time, place, and circumstances of the prior
statement
• If the statement is written, a copy of the writ-
ten statement must be provided to the op-
posing COUNSEL upon request
Another way to impeach the testimony of a wit-
ness is to show that the witness has a character of un-
truthfulness. This departure from the basic rule
states a party may not provide evidence of a witness’s
character to show that the witness acted in conformi-
ty with that character trait. The FRE permits evidence
to prove a witness has a character of untruthfulness
in:
• Testimony of specific instances of untruth-
fulness
• The opinion of another witness concerning
the honesty of another witness’s character
• Testimony about the target witness’s reputa-
tion for truthfulness in the community
It is important to know that a witness whose testimo-
ny is used to impeach the truthfulness of another
witness may in turn be impeached
Character
Character is a general quality usually attributed to
a person. Character cannot be used to show that
CRIMINAL LAW—EVIDENCE
340 GALE ENCYCLOPEDIA OF EVERYDAY LAW
someone acted on a particular occasion in conformi-
ty with a particular character trait. On the other
hand, habit can be used that way. A habit is a behav-
ior; it is specific, regular, and consistently repeated.
Occasionally, some character traits can be linked
with a habit, so the distinction between the two can
be hard to make at times.
In civil cases, evidence that a person has a charac-
ter trait generally cannot be used to prove that the
person acted in conformity with that character trait
on a particular occasion. Evidence of character may
be proved where it is an integral issue in a dispute
or where a party puts character in issue. Evidence of
character is used frequently in criminal trials during
the sentencing stage to show that a convicted
DEFENDANT merits a lesser or greater sentence or
other PENALTY.
Hearsay
The rule against hearsay is deceptively simple and
full of exceptions. Hearsay is an out of court state-
ment, made in court, to prove the truth of the matter
asserted. In other words, hearsay is evidence of a
statement that was made other than by a witness
while testifying at the HEARING in question and that
is offered to prove the truth of the matter stated. For
example, Witness A in a murder trial claimed on the
stand: ‘‘Witness B (the ‘‘declarant’’) told me that the
defendant killed the victim.’’ The definition of hear-
say is not too difficult to understand. But the matter
can become very confusing when one considers all
of the many exceptions to the general rule against
hearsay.
Even if a statement meets the requirements for
hearsay, the statement may yet be admissible under
one of the exceptions to the hearsay rule. The FRE
contains nearly thirty of these exceptions. Most of
them are generally available, although a few of them
are limited to times when the declarant is unavail-
able.
There are twenty-four exceptions in the federal
rules that do not require proof that the person who
made the statement is unavailable. These are:
1. Business records, including those of a pub-
lic agency
2. Certain public records and reports
3. Evidence of a judgment of conviction for
certain purposes
4. Evidence of the absence of a business re-
cord or entry
5. Excited utterances or spontaneous state-
ments
6. Family records concerning family history
7. Judgments of a court concerning personal
history, family history, general history, or
BOUNDARIES, where those matters were es-
sential to the judgment
8. Learned treatises used to question an ex-
pert witness
9. Market reports, commercial publications,
and the like
10. Marriage, baptismal, and similar certifi-
cates
11. Past recollections recorded
12. Recorded documents purporting to affect
interests in land
13. Records of religious organizations con-
cerning personal or family history
14. Records of vital statistics
15. Reputation concerning boundaries or gen-
eral history
16. Reputation concerning family history
17. Reputation of a person’s character
18. Statements about the declarant’s present
sense impressions
19. Statements about the declarant’s then ex-
isting mental, emotional, or physical con-
dition
20. Statements in authentic ancient docu-
ments (at least 20 years old)
21. Statements in other documents purport-
ing to affect interests in land and relevant
to the purpose of the document
22. Statements made by the declarant for the
purpose of medical diagnosis or treatment
23. Statements of the absence of a public re-
cord or entry
24. The ‘‘catchall’’ rule
The last exception, the so-called ‘‘catchall’’ rule,
bears some explanation. This rule does not require
that the declarant be unavailable to testify. It does say
that evidence of a hearsay statement not included in
one of the other exceptions may nevertheless be ad-
mitted if it meets these following conditions:
CRIMINAL LAW—EVIDENCE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 341
• It has sound guarantees of trustworthiness
• It is offered to help prove a material fact
• It is more probative than other equivalent
and reasonably obtainable evidence
• Its admission would forward the cause of
justice
• The other parties have been notified that it
will be offered into evidence
Privileges
In general terms, privileges are rights held by indi-
viduals that permit them to refuse to provide evi-
dence or to prevent certain evidence from being of-
fered against them. Privileges exist only to serve
specific interests and relationships; courts give them
narrow scope.
Privileges are more or less disfavored by the
courts because they run contrary to the principle
that all relevant evidence should be admitted in a
search for truth. Accordingly, the persons or entities
whose confidentiality they are meant to shield or
protect can waive their privileges. Individuals who
possess a privilege are known as ‘‘holders’’ of the
privilege. Often, the nonholder who is a party to a
privileged communication must assert the privilege
on behalf of the holder.
Congress could not agree on how to make laws
regarding privileges, so this area was left up to the
courts and to state law to define. Thus, under the
FRE, when a party offers evidence on a federal claim
the applicable privileges are determined by the fed-
eral case law. When a party offers evidence on a state
claim, the state’s law of privilege applies. The federal
law of privilege is still developing, and the federal
courts are usually less tolerant of parties’ claims to
privileges than are state courts.
Presumptions
Previously, there was a good deal of controversy
among legal professionals and scholars over the ef-
fect of presumptions, but these have largely ended,
at least in the federal system. Presumptions are just
that, a presumption that certain evidence is what it
is on its face. Sometimes, however, a presumption
can be rebutted by other evidence. There are two
kinds of rebuttable presumptions: those that affect
the burden of producing evidence and those that af-
fect the burden of proof. In most cases, courts inter-
pret presumptions as rebuttable. A list of rebuttable
presumptions includes the following:
• That a letter that has been correctly ad-
dressed and properly mailed is received by
the addressee in the ordinary course of the
mail
• That a person who possesses a thing is also
the owner of that thing
• That a writing is dated accurately
• That a written obligation that has been sur-
rendered to the DEBTOR has been paid by the
debtor (and vice versa)
• That some specific ancient documents are
authentic
• That statements in the records of a process
server are true
• That when a receipt for a payment on an
INSTALLMENT debt is given, the debtor has
paid all previous installment payments
• That the defendant was negligent when the
requirements of res ipsa loquitur have been
proven
• The presumptions that money or property
delivered is in fact owed to the recipient
A presumption is not considered evidence. But if
an opponent to a presumption puts on no evidence
to rebut the presumption, the judge or jury must as-
sume the existence of the presumed fact. On the
other hand, if an opponent to a presumption does
provide evidence to rebut the presumption, the pre-
sumption has no further effect.
Judicial Notice
Sometimes, the need for evidence on an issue in
a case can be satisfied through formal admissions,
stipulations, and judicial notice. Likewise, under the
FRE, a judge may take judicial notice of facts that are
not in issue because they are either generally known
(e.g. George Washington was the first president of
the United States), or they can be accurately and
readily determined (e.g. the exact time of sunrise on
a particular day). In addition, state and federal courts
can take judicial notice of the laws of the states and
of the federal system.
CRIMINAL LAW—EVIDENCE
342 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Additional Resources
An Introduction to the Law of Evidence. Lilly, Graham C.,
West Wadsworth, 1996.
Evidence 2nd ed., Mueller, Christopher B., and Laird C.
Kirkpatrick, Aspen Publishers, Inc., 1999.
Federal Evidence 4th ed., Weissenberger, Glen, and James
J. Duane. Anderson Publishing Company, 2001.
‘‘Federal Rules of Evidence.’’ Legal Information Institute,
2002. Available at http://www.law.cornell.edu/rules/fre/
overview.html. Legal Information Institute, 2002.
Federal Rules of Evidence in a Nutshell, 5th Ed. 5th ed.,
Graham, Michael H., West Publishing, 2001.
The New Wigmore: A Treatise on Evidence: Selected Rules
of Limited Admissibility: Regulation of Evidence to
Promote Extrinsic Policies and Values. Leonard, David
P., and Richard D. Friedman, editors., Aspen Law &
Business, 2002.
Trial Evidence, Second Edition. 2nd ed., Mauet, Thomas
A., and Warren D. Wolfson. Aspen Law & Business,
2001.
Organizations
Criminal Justice Section of the American Bar
Association (ABA)
740 15th Street, NW, 10th Floor
Washington, DC 20005-1009 USA
Phone: (202) 662-1500
Fax: (202) 662-1501
URL: http://www.abanet.org/crimjust/home.html
National Association of Criminal Defense
Lawyers (NACDL)
1025 Connecticut Ave. NW, Ste. 901
Washington, DC 20036 USA
Phone: (202) 872-8600
Fax: (202) 872-8690
E-Mail: assist@n acdl.org
URL: www.nacdl.org
National District Attorneys Association
99 Canal Center Plaza, Suite 510
Alexandria, VA 22314 USA
Phone: (703) 549-9222
Fax: (703) 836-3195
URL: http://www.ndaa.org/index.html
CRIMINAL LAW—EVIDENCE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 343
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CRIMINAL LAW
FIFTH AMENDMENT
Sections within this essay:
• Background
• The Text, Applicability, Interpretation and
Scope of the Fifth Amendment
•
- The Text of the Fifth Amendment
- Applicability of the Fifth Amendment
to the States
- Interpretation and Scope of the
Grand Jury Clause
- Interpretation and Scope of the Dou-
ble Jeopardy Clause
- Interpretation and Scope of the Due
Process Clause
- Interpretation and Scope of the Self-
Incrimination Clause
- Interpretation and Scope of the Emi-
nent Domain Clause
• State Laws Concerning Rights Enumerated
by the Fifth Amendment
• Additional Resources
Background
Having successfully won their independence from
a British monarchy and Parliament that they had
ACCUSED of being undemocratic and tyrannical, the
Framers of the federal Constitution had a strong mis-
trust of large, centralized governments. The Framers
drafted the BILL OF RIGHTS, consisting of the Consti-
tution’s first ten amendments, to serve as a bulwark
delineating a range of individual freedoms and thus
protecting them from governmental abuse. Laws en-
acted, implemented, or enforced by governmental
officials that infringe on these freedoms are typically
invalidated as unconstitutional by the judiciary.
The Fifth Amendment to the U. S. Constitution
enumerates five distinct individual freedoms: (1) the
right to be indicted by an IMPARTIAL GRAND JURY be-
fore being tried for a federal criminal offense; (2) the
right to be free from multiple prosecutions or multi-
ple punishments for a single criminal offense; (3) the
right to have individual freedoms protected by DUE
PROCESS OF LAW; (4) the right to be free from govern-
ment compelled SELF-INCRIMINATION; and (5) the
right to receive just compensation when the govern-
ment takes private property for public use.
The Text, Applicability, Interpretation,
and Scope of the Fifth Amendment
Like nearly every other freedom guaranteed by
the U. S. Constitution, the freedoms protected by the
Fifth Amendment have two lives, one static and the
other organic. Their static life exists in the original
language of the Fifth Amendment as it was ratified by
the states in 1791, while their organic life exists in the
growing body of state and federal CASE LAW interpret-
ing the text, applying it, and defining its scope as new
cases come before the courts. Frequently these two
lives cross paths, as when litigants and their attor-
neys argue that courts must interpret and apply the
Fifth Amendment as it was originally understood by
those who framed and ratified the constitution.
The Text of the Fifth Amendment
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
GALE ENCYCLOPEDIA OF EVERYDAY LAW 345
or INDICTMENT of a Grand Jury, except in cases arising
in the land or naval forces, or in the MILITIA, when
in actual service in time of War or public danger; nor
shall any person be subject for the same offence to
be twice put in JEOPARDY of LIFE OR LIMB; nor shall be
compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall pri-
vate property be taken for public use, without just
compensation.
Because the Framers hoped that the Constitution
would be an enduring document, they generally
avoided using specific language that one might find
in a code or a regulation. Instead of specifying partic-
ular instances of prohibited governmental conduct
in the Bill of Rights, the Framers established broad
principles that government officials must take into
account before encroaching on individual freedoms.
In this way the Framers required future generations
of citizens to determine the Constitution’s meaning.
In Marbury v. Madison, 5 U. S. (1 Cranch) 137,
2 L. Ed. 60 (1803), the U. S. Supreme Court ruled that
the ultimate authority for determining the Constitu-
tion’s meaning lay with the judicial branch of govern-
ment through the power of JUDICIAL REVIEW. Pursu-
ant to this power, courts are authorized to review
laws enacted by government officials and invalidate
those that violate the Constitution.
Applicability of the Fifth Amendment to the
States
As originally ratified it was unclear whether the
Fifth Amendment applied only against action taken
by the federal government or if it also protected free-
doms from state governmental abuse. The Supreme
Court answered this question in Barron v. City of
Baltimore, 32 U.S. 243, 7 Pet. 243, 8 L.Ed. 672 (1833),
when it ruled that the Fifth Amendment did not
apply to the states.
This judgment settled the question until the Four-
teenth Amendment was ratified in 1868. It guaran-
teed the citizens of every state the right to EQUAL
PROTECTION of the laws and the right to due process
of law. Following RATIFICATION of the Fourteenth
Amendment, the Supreme Court began making indi-
vidual freedoms enumerated in the Bill of Rights ap-
plicable to the states via the doctrine of incorpora-
tion. Under this doctrine the Court explained
through a series of cases that no state may deny any
citizen a fundamental liberty without violating the
Fourteenth Amendment’s Equal Protection and Due
Process Clauses. The Court has ruled that these fun-
damental liberties include every liberty set forth in
the Bill of Rights, except the Second Amendment’s
right to bear arms, the Third Amendment’s right
against quartering soldiers, the Seventh Amend-
ment’s right to trial by jury in civil cases, and the Fifth
Amendment’s right to indictment by grand jury.
Interpretation and Scope of the Grand Jury
Clause
The Fifth Amendment guarantees every person
charged with a federal crime the right to be indicted
by a grand jury. A grand jury is a group of citizens
summoned to criminal court by a law enforcement
official to decide whether it is appropriate to indict
someone suspected of a crime. Although the right to
a grand jury is mandated at the federal level by the
U. S. Constitution, about one-third of the state con-
stitutions also require indictment by grand jury for
more serious violations of state laws.
Federal grand juries may consist of between 16
and 23 citizens chosen from lists of qualified state
residents of LEGAL AGE, who have not been convicted
of a crime, and are not biased against the subject of
the investigation (see 18 USCA & #21; 3321). Grand
jury proceedings begin with the prosecutor’s pre-
senting a bill of indictment, which is a list explaining
the case and possible charges. The PROSECUTOR then
presents EVIDENCE to the grand jurors in the form of
exhibits, written documents, and oral TESTIMONY by
witnesses.
Grand jurors are given wide latitude to inquire
about the criminal charges and may compel the pro-
duction of documents and records and SUBPOENA
witnesses, including the suspect under investigation.
They may also question witnesses to satisfy them-
selves that the evidence is credible and reliable. Un-
like at trial, HEARSAY evidence is ADMISSIBLE before
grand juries. But like at trial, witnesses who refuse to
answer questions may be held in CONTEMPT and in-
carcerated until they provide answers, unless the
question requires disclosure of information that
might tend to INCRIMINATE the witness. The Fifth
Amendment’s PRIVILEGE AGAINST SELF-INCRIMINATION
may be successfully asserted during grand jury pro-
ceedings.
Grand juries are accusatory bodies, and prosecu-
tors have no obligation to present exculpatory evi-
dence or testimony that impeaches their witnesses.
Nor do suspects enjoy an absolute right to appear be-
fore a grand jury to present their case. Suspects may
appear before a grand jury with permission of the
prosecutor or upon order by subpoena.
CRIMINAL LAW—FIFTH AMENDMENT
346 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Despite the prosecutor’s partisan role as the gov-
ernment official in charge of obtaining an indictment
against the accused, the prosecutor may not com-
promise the grand jury’s function of standing be-
tween the accused and a hasty, malicious, oppres-
sive, or corrupt prosecution (see Wood v. Georgia,
370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 [1962]).
Prosecutors, for example, are prohibited from pre-
senting false information to a grand jury, and convic-
tions stemming from an indictment based on false in-
formation are overturned on appeal. Prosecutors are
also prohibited from pressuring grand jurors to ‘‘rub-
ber stamp’’ an indictment (see U. S. v. Sigma Intern.,
Inc., 244 F.3d 841 [11th Cir.2001]).
If a majority of grand jury members agree that
there is sufficient reason to charge the suspect with
a crime, they return an indictment carrying the
words, ‘‘true bill.’’ But if a majority of grand jurors
determine that there is insufficient evidence to go
forward with prosecution, they return an indictment
carrying the words, ‘‘no bill.’’
Interpretation and Scope of the Double
Jeopardy Clause
The DOUBLE JEOPARDY Clause of the Fifth Amend-
ment prohibits the government from prosecuting a
DEFENDANT more than one time for a single offense
or imposing more than one punishment for a single
offense. Only certain types of LEGAL PROCEEDINGS in-
voke double jeopardy protection. If a particular pro-
ceeding does not place an individual in ‘‘jeopardy,’’
then subsequent proceedings or punishments
against that individual for the same conduct are not
prohibited by this clause.
The text of the Fifth Amendment suggests that the
protection against double jeopardy extends only to
proceedings that threaten ‘‘life or limb.’’ However,
the Supreme Court has extended the right against
double jeopardy beyond capital crimes and corpore-
al punishments to all felonies, misdemeanors, and ju-
venile delinquency adjudications, regardless of the
punishments they prescribe. At the same time, the
Supreme Court has ruled that the right against dou-
ble jeopardy precludes only subsequent criminal
proceedings. It does not preclude a private litigant
from initiating a civil proceeding against a defendant
who has already been prosecuted for a crime, which
explains why O. J. Simpson could be sued in civil
court by the surviving family members of Ronald
Goldman and Nicole Brown Simpson after he was ac-
quitted in criminal court of murdering them.
A crucial question in any double jeopardy analysis
is when jeopardy is said to have ‘‘attached.’’ In other
words, courts must decide at what point during a
criminal prosecution did a defendant’s right against
subsequent prosecution and multiple punishments
begin. Actions taken by the government before jeop-
ardy attaches, such as dismissing an indictment, will
not prevent later proceedings against a person for
the same offense. Conversely, once jeopardy has at-
tached, the full panoply of protections against subse-
quent prosecution and multiple punishments takes
hold.
The Supreme Court has ruled that jeopardy at-
taches during a jury trial when the jury is sworn. In
criminal cases tried by a judge without a jury, jeopar-
dy attaches when the first witness is sworn. Jeopardy
attaches in juvenile proceedings when the court first
hears evidence. If the defendant or juvenile enters a
PLEA agreement, jeopardy does not attach until the
plea is accepted.
Determining when jeopardy terminates is no less
important. Once jeopardy has terminated, the gov-
ernment cannot hail someone into court for addi-
tional criminal proceedings without raising double
jeopardy questions. If jeopardy does not terminate
at the conclusion of one proceeding, it is deemed to
be continuing, and further criminal proceedings are
permitted. Jeopardy can terminate in four instances:
(1) after an ACQUITTAL; (2) after a DISMISSAL of a
charge; (3) after a MISTRIAL that was not caused by
the defendant; or (4) on appeal after a CONVICTION.
The final question courts must resolve in double
jeopardy LITIGATION is whether successive prosecu-
tions or punishments are for the same offense. Jeop-
ardy may have already attached and terminated in a
prior criminal proceeding, but the state may bring
further criminal action against a person so long as it
is not for the same offense. The U. S. Supreme Court
has ruled that the government is allowed to
PROSECUTE an individual for more than one offense
stemming from a single course of conduct only when
each offense requires proof of a fact that the other
offenses do not (see Blockburger v. United States,
284 U.S. 299, 52 S.Ct. 180, 76 L. Ed. 306 [1932]). De-
pending on the circumstances surrounding the sin-
gle course of conduct, the Court has adopted various
other tests in resolving this question and has allowed
lower federal and state courts to do the same.
Interpretation and Scope of the Due Process
Clause
The Fifth Amendment’s Due Process Clause has
two prongs, one procedural and one substantive.
CRIMINAL LAW—FIFTH AMENDMENT
GALE ENCYCLOPEDIA OF EVERYDAY LAW 347
Procedural due process encompasses the process by
which legal proceedings are conducted. It requires
that all persons who are materially affected by a legal
proceeding to receive notice of its time, place, and
subject matter so that they have an adequate oppor-
tunity to prepare. It also requires that legal proceed-
ings be conducted in a fair manner by an impartial
judge who will allow the interested parties to fully
present their complaints, grievances, and defenses.
The procedural prong of the Due Process Clause
governs civil, criminal, and administrative proceed-
ings from the pretrial stage through final appeal, and
proceedings that produce arbitrary or capricious re-
sults will be overturned as unconstitutional.
Substantive due process encompasses the con-
tent or substance of particular laws applied during
legal proceedings. Before World War II, the U. S. Su-
preme Court relied on substantive due process to
overturn legislation that infringed on a variety of
property interests, including the right of employers
to determine the wages their employees would be
paid and the number of hours they could work. Since
World War II, the Supreme Court has relied on sub-
stantive due process to protect privacy and autono-
my interests of adults, including the right to use con-
traception and the right to have an ABORTION.
However, the line separating procedure from sub-
stance is not always clear. For example, procedural
due process guarantees criminal defendants the
right to a fair trial, while substantive due process
specifies that twelve jurors must return a unanimous
guilty verdict before the death penalty can be im-
posed. The line is further blurred by judges and law-
yers who simply refer to both prongs as ‘‘due pro-
cess,’’ without any express indication as to whether
they mean substantive or procedural.
Interpretation and Scope of the Self-
Incrimination Clause
The Fifth Amendment’s right against self-
incrimination permits individuals to refuse to answer
questions or disclose information that could be used
against them in a criminal prosecution. The purpose
of this right is to inhibit the government from com-
pelling a CONFESSION through force, COERCION, or de-
ception. Confessions produced by these methods
are deemed unreliable because they are often invol-
untary, unwitting, or the result of the accused’s de-
sire to avoid further browbeating rather than being
the product of candor or a desire to confess.
The Self-Incrimination Clause applies to every
type of legal proceeding, whether it is civil, criminal,
or administrative in nature. Traditionally, the privi-
lege against self-incrimination was most frequently
asserted during the trial phase of legal proceedings,
where individuals are placed under oath and asked
questions on the witness stand. However, in the
twentieth century application of the privilege was ex-
tended to the pretrial stages of legal proceedings as
well. In civil cases, for example, the right against self-
incrimination may be asserted when potentially in-
criminating questions are posed in depositions and
interrogatories.
In criminal proceedings, the U. S. Supreme
Court’s decision in Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966) established
the rules under which the Self-Incrimination Clause
applies to proceedings before trial. In Miranda the
Court held that any statements made by a defendant
while in police CUSTODY will be INADMISSIBLE during
prosecution unless the police first warn the defen-
dants that they have (1) the right to remain silent; (2)
the right to consult an attorney before being ques-
tioned by the police; (3) the right to have an attorney
present during police questioning; (4) the right to a
court appointed attorney if the defendant cannot af-
ford to hire a private attorney; and (5) the right to
be informed that any statements they make can and
will be used against them at trial.
The Miranda case acknowledged that these warn-
ings were not expressly mentioned anywhere in the
text of the federal Constitution. However, the Court
concluded that the warnings constituted an essential
part of a judicially created buffer zone that is neces-
sary to protect rights that throughout the Bill of
Rights are expressly afforded to criminal defendants.
Thus, if a defendant confesses to a crime or makes
an otherwise incriminating statement to the police,
that statement will be generally excluded from trial
unless the defendant was first read the Miranda
warnings.
Because of its lack of textual support in the federal
Constitution, legal observers have long predicted the
demise of Miranda. Much of this speculation has
been fueled by subsequent cases in which the Su-
preme Court carved out exceptions to Miranda. For
example, the Court ruled that when a defendant
makes an un-Mirandized incriminating statement fol-
lowed by a later Mirandized confession, the subse-
quent confession should not be excluded from trial
(see Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285,
84 L. Ed.2d 222 [1985]). Despite such inroads to the
Miranda doctrine, the Miranda case itself has not
CRIMINAL LAW—FIFTH AMENDMENT
348 GALE ENCYCLOPEDIA OF EVERYDAY LAW
been overturned. The Miranda warnings must still be
given before police commence custodial interroga-
tion, and when they are not given, police risk under-
mining the prosecutor’s case at trial by jeopardizing
the admissibility of any pre-trial statements made the
defendant.
Interpretation and Scope of the Eminent
Domain Clause
When the government takes someone’s property
for public use, the law calls it a ‘‘taking.’’ The Fifth
Amendment permits the government to appropriate
private property for a public purpose so long as the
property owner receives just compensation. The
Fifth Amendment allows for governmental
APPROPRIATION of either real estate or PERSONAL
PROPERTY, and the just-compensation provision ap-
plies to both kinds of takings. In most eminent do-
main proceedings, just compensation is normally
equated with the FAIR MARKET VALUE of the property
appropriated.
The Fifth Amendment attempts to strike a balance
between the needs of the public and the property
rights of owners. During colonial times local govern-
ments often appropriated private land to build roads
and bridges for development of the country’s infra-
structure. After the American Revolution began,
Great Britain used the power of eminent domain to
seize various land and goods for military consump-
tion. In only rare instances did the colonial or British
governments provide compensation of any kind to
the owners of the appropriated property. The Emi-
nent Domain Clause was drafted to end this practice.
In the twentieth century the Supreme Court en-
larged the protection against uncompensated tak-
ings. The Court interpreted the Eminent Domain
Clause to protect not only owners whose property is
physically taken by the government but also owners
whose property value is diminished as a result of gov-
ernmental activity. For example, the Court has found
a compensable taking to have resulted from ordi-
nances that deny property owners an economically
viable use of their land, environmental laws that re-
quire the government to occupy an owner’s land to
monitor groundwater wells, and land-use regulations
that curtail mining operations.
State Laws Concerning Rights
Enumerated by the Fifth Amendment
The federal constitution and the Supreme Court
cases interpreting it establish the minimum amount
of protection that a state court must provide when
applying a provision of the Bill of Rights to a pending
controversy. The same holds true for the four clauses
of the Fifth Amendment that have been made appli-
cable to the states through the doctrine of incorpora-
tion. However, a state constitution or a state court in-
terpreting the state constitution may provide more
protection than is afforded by the federal constitu-
tion but not less. Below is a sampling of cases decid-
ed in part based on state courts’ interpretation of the
federal constitution, its own state constitution, or
both.
ALABAMA: Procedural due process guaranteed
under the Alabama Constitution does not require an
entirely neutral decision-maker in an employment
pre-termination HEARING for a government employee
(Alabama Const. Art I., section 13). The Supreme
Court of Alabama said that the governmental interest
in the expeditious removal of unsatisfactory employ-
ees and the avoidance of administrative burdens in
conducting a ‘‘mini-trial’’ to educate an impartial de-
cision-maker outweighs the private interest in avoid-
ing the risk of an erroneous termination (see City of
Orange Beach v. Duggan, 788 So.2d 146 [Ala., 2000]).
ARKANSAS: The Due Process Clause in the Arkansas
Constitution did not disqualify a trial judge from pre-
siding over a prosecution against the defendant, not-
withstanding the defendant’s claim of potential judi-
cial BIAS from judge’s service as prosecuting attorney
in a former case (see AR CONST Art. 2, & #21; 8.
Green v. State, 21 Ark.App. 80, 729 S.W.2d 17 [Ark.
App.,1987]).
ARIZONA: If a mistrial is granted as a result of con-
duct that the prosecutor knew or should have
known would prejudice the defendant and the preju-
dice cannot be cured short of declaring a mistrial, the
double jeopardy clause of state constitution bars re-
trial (see AZ CONST Art. 2 & #21; 10. Beijer v. Adams
ex rel. County of Coconino, 993 P.2d 1043 [Ariz. App.
Div. 1, 1999]).
CALIFORNIA: The California grandparent visitation
STATUTE violated the Due Process Clause of both the
state and federal constitutions as applied to a moth-
er, who opposed visitation between her child and pa-
ternal grandparents, after the trial court failed to
apply the STATUTORY presumption that the mother
would act in her child’s best interests (see U.S.C.A.
Const.Amend. 14; West’s Ann.Cal. Const. Art. 1, &
#21; 7; West’s Ann.Cal.Fam. Code & #21; 3104,
subd. (f). IN RE Marriage of Harris, 2001 WL 1113062
[Cal.App. 4 Dist., 2001.])
CRIMINAL LAW—FIFTH AMENDMENT
GALE ENCYCLOPEDIA OF EVERYDAY LAW 349
FLORIDA: For a criminal statute to withstand a void-
for-vagueness challenge under both the federal and
state Due Process Clauses, the language of the stat-
ute must provide adequate notice of the conduct it
prohibits when measured by common understand-
ing and practice, and the statute must define the of-
fense in a manner that does not encourage arbitrary
and discriminatory enforcement (see U.S.C.A.
Const.Amend. 14; West’s F.S.A. Const. Art. 1, & #21;
9. State v. Brake, 2001 WL 1095088 [Fla., 2001]).
GEORGIA: Routine collection of a suspect’s signa-
ture on a fingerprint card while booking the suspect
into jail, even in the absence of Miranda warnings,
does not constitute compelled self-incrimination in
violation of the state constitution (see GA CONST
Art. 1, & #21; 1, P XVI. Thomas v. State, 549 S.E.2d
359 [Ga., 2001]).
ILLINOIS: The privilege against self-incrimination
that is applicable in criminal cases under the Illinois
constitution applies to PROBATION revocation pro-
ceedings, since a defendant’s testimony may subject
him to fine or INCARCERATION if probation is revoked
(see S.H.A. Const. Art. 1, & #21; 10; S.H.A. 730 ILCS
5/5-6-4. People v. McNairy, 309 Ill.App.3d 220, 721
N.E.2d 1200, 242 Ill.Dec. 669 [Ill.App. 2 Dist. 1999]).
MASSACHUSETTS: A Due Process violation did not
occur under the Massachusetts Constitution based
on a prisoner’s transfer to another prison, the depri-
vation of the prisoner’s canteen privileges, or the
loss of the privilege to attend resident council meet-
ings, since the transfer did not implicate a liberty in-
terest, and the other two claims involved privileges
not rights (see M.G.L.A. Const. Pt. 1, Art. 12. Murphy
v. Cruz, 753 N.E.2d 150 [Mass.App.Ct.,2001]).
MICHIGAN: Convictions for both being a FELON in
possession of a firearm and possessing a firearm dur-
ing the commission of a FELONY did not violate the
Double Jeopardy Clause of the Michigan Constitu-
tion, since the words of the felony-firearm statute
made it clear that the legislature’s intent was to pro-
vide for an additional felony charge and sentence
whenever the person possessing the firearm also
committed the felony, and the statutes setting forth
those offenses fulfilled distinct purposes that ad-
dressed different social norms (see MI ST 750.224f.
MI ST 750.224f. MI ST 750.227b. People v. Dillard,
631 N.W.2d 755 [Mich.App., 2001]).
MINNESOTA: Taxpayers who were sent three notices
concerning their property tax before the property
taxes became due and who could have used a variety
of statutory means to challenge the taxes received
constitutionally sufficient Due Process under both
the state and federal constitutions (see MN CONST
Art. 1, & #21; 7. Programmed Land, Inc. v. O’Connor,
633 N.W.2d 517 [Minn., 2001]).
MISSOURI: A Missouri statute giving any party to a
custody or visitation proceeding only one opportuni-
ty to disqualify a GUARDIAN AD LITEM (GAL) did not vi-
olate the state or federal Due Process rights of the
children, since following disqualification the court
was required to appoint another GAL if abuse or ne-
glect was alleged (see U.S.C.A. Const.Amend. 14;
V.A.M.S. & #21; 452.423, subd. 1. Suffian v. Usher, 19
S.W.3d 130 [Mo., 2000]).
NEW JERSEY: A state statute prohibiting licensing of
a check cashing office that is located within 2,500
feet of an existing office was rationally related to the
health and stability of the industry and to maintain-
ing the statutory fee cap, which itself was a legitimate
CONSUMER PROTECTION measure, and thus did not vio-
late substantive due process rights of the applicant
who sought a license for an office that did not com-
ply with distance restriction (see U.S.C.A.
Const.Amend. 14; N.J.S.A. Const. Art. 1, par. 1;
N.J.S.A. 17:15A-41, subd. e, 17:15A-43. Roman Check
Cashing, Inc. v. New Jersey Department of Banking
and Ins., 777 A.2d 1 [N.J., 2001]).
NEW YORK: The New York City School Construction
Authority’s proposed condemnation of undeveloped
property owned by the city for use as a public school
did not violate the federal due process rights of the
city’s LESSEE, which had leased the property for
urban development purposes, since the LEASE ex-
pressly provided for the exercise of the eminent do-
main power against the premises and also enabled
the city to avoid further liability upon condemnation
(see U.S.C.A. Const.Amend. 14; McKinney’s Public
Authorities Law & #21;& #21; 1728, subds. 6, 17,
1729; McKinney’s EDPL & #21; 207(c)(1, 2). West-
chester Creek Corp. v. New York City School Const.
Authority, 730 N.Y.S.2d 95 [N.Y.A.D. 1 Dept., 2001]).
OHIO: The privilege against self-incrimination pro-
tected by the Ohio Constitution was a testimonial
privilege identical to that of the Fifth Amendment
and, thus it did not protect the defendant from being
required to provide handwriting exemplars (see
U.S.C.A. Const.Amend. 5; Const. Art. 1, & #21; 10. In
re Grand Jury Directive to Creager, 89 Ohio App.3d
672, 627 N.E.2d 563 [Ohio App. 2 Dist., 1993]).
TEXAS: A Texas trial court has no power to violate a
party’s due process rights by investigating possible
CRIMINAL LAW—FIFTH AMENDMENT
350 GALE ENCYCLOPEDIA OF EVERYDAY LAW
sanctionable courtroom conduct without providing
the parties under investigation with adequate notice
(see U.S.C.A. Const.Amend. 14. Tarrant County
Hosp. Dist. v. Henry, 52 S.W.3d 434, [Tex.App.-Fort
Worth, 2001]).
Additional Resources
American Jurisprudence. Lawyers Co-operative Publish-
ing Company, 2001.
Criminal Procedure. Wayne R. LaFave, Jerold H. Israel,
and Nancy J.King, West Group, 2001.
http://caselaw.findlaw.com/data/constitution/
amendment05. FindLaw: Fifth Amendment, 2001.
Oxford Companion to the Supreme Court. Kermit Hall,
ed., Oxford University Press, 1992.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Civil Liberties Union (ACLU)
1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
E-Mail: info@aclu.org
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive
Director
Association of Federal Defense Attorneys
8530 Wilshire Blvd, Suite 404
Beverly Hills, CA 90211 USA
Phone: (714) 836-6031
Fax: (310) 397-1001
E-Mail: AFDA2@AOL.com
URL: http://www.afda.org
Primary Contact: Gregory Nicolaysen, Director
Center for Human Rights and Constitutional
Law
256 S. Occidental Blvd.
Los Angeles, CA 90057 USA
Phone: (213) 388-8693
Fax: (213) 386-9484
E-Mail: mail@centerforhumanrights.org
URL: http://www.centerforhumanrights.org
Primary Contact: Peter A. Schey, Executive Director
National District Attorneys Association
(NDAA)
99 Canal Center Plaza
Alexandria, VA 22314 USA
Phone: (703) 549-9222
Fax: (703) 836-3195
URL: http://www.ndaa.org
Primary Contact: Thomas J. Charron, Director
CRIMINAL LAW—FIFTH AMENDMENT
GALE ENCYCLOPEDIA OF EVERYDAY LAW 351
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CRIMINAL LAW
INSANITY DEFENSE
Sections within this essay:
• Background
• The M’Naghten Rule
• The Irresistible Impulse Test
• The Durham Rule
• The American Law Institute’s Model Penal
Code Test
• The Hinckley Trial and its Aftermath
- Burden of Proof
- Commitment and Release Proce-
dures
- The Federal Insanity Defense Re-
form Act
- Guilty But Mentally Ill
• Current Status of the Insanity Defense
Among The States
• Additional Resources
Background
Probably the most controversial of all criminal de-
fense strategies, the INSANITY DEFENSE is also, ironical-
ly, one of the least used. On many occasions when
it has been used, particularly in the much-publicized
1984 ACQUITTAL of John W. Hinckley for an attempted
assassination of a president, the insanity defense has
tended to provoke public debate.
Put simply, the insanity defense asserts that the
criminal DEFENDANT is not guilty by reason of insanity.
The theory behind the defense is persons who are
insane cannot have the intent required to perform a
criminal act because they either do not know that act
is wrong or cannot control their actions even when
they understand the act is wrong. But this theory is
controversial because insanity itself is difficult to de-
fine, and the circumstances in which insanity can be
used to excuse criminal responsibility are difficult to
define.
The insanity defense has existed since the twelfth
century, but initially it was not considered an argu-
ment for the defendant to be found not guilty. In-
stead, it was a way for a defendant to receive a
PARDON or a way to mitigate a sentence. The idea that
insanity could bar the CONVICTION of a defendant
arose in the early nineteenth century, in the writings
of a influential scholar Isaac Ray, whose treatise, The
Medical JURISPRUDENCE of Insanity, and in the deci-
sion in a seminal case in England called M’Naghten
(or sometimes McNaughtan).
The M’Naghten Rule
In 1843, Daniel M’Naghten, an Englishman who
was apparently a paranoid schizophrenic under the
delusion he was being persecuted, shot and killed
Edward Drummond, Secretary to British Prime Min-
ister Sir Robert Peel. M’Naghten was under the delu-
sion that Drummond was Peel. To the surprise of the
nation, M’Naghten was found not guilty on the
grounds he was insane at the time of his act. The sub-
sequent public outrage convinced the English House
of Lords to establish standards for the defense of in-
sanity, the results subsequently referred to as the
M’NAGHTEN RULE.
The M’Naghten rule states: ‘‘Every man is to be
presumed to be sane, and . . . that to establish a de-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 353
fense on the ground of insanity, it must be clearly
proved that, at the time of the committing of the act,
the party ACCUSED was laboring under such a defect
of reason, from disease of 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 he was doing what
was wrong. ’’
The test to determine if defendants can distin-
guish right from wrong is based on the idea that they
must know the difference in order to be convicted
of a crime. Determining defendants’ ability to do so
may seem straightforward enough, but in practice in
cases in which the M’Naghten standard is used di-
lemmas often arise. One of these is what constitutes
the defendants’ ‘‘knowledge.’’ Some questions con-
cern defendants’ knowledge that their criminal acts
are wrong and their knowledge that laws exist which
prohibit these acts.
Criticism of the M’Naghten test focuses on the
test’s concentration on defendants’ cognitive abili-
ties. Then, too, questions occur about how to treat
defendants who know their acts are against the law
but who cannot control their impulses to commit
them. Similarly, the courts need to determine how
to evaluate and assign responsibility for emotional
factors and compulsion. Finally, because of the rule’s
inflexible cognitive standard, it tends to be very diffi-
cult for defendants to be found not guilty by reason
of insanity. Despite these complications, M’Naghten
survives and is currently the rule in a majority of
states in regard to the insanity defense (sometimes
combined with the irresistible impulse test, dis-
cussed below).
The Irresistible Impulse Test
In response to criticisms of M’Naghten, some legal
commentators began to suggest expanding the defi-
nition of insanity to include more than a cognitive el-
ement. Such a test would encompass not only
whether defendants know right from wrong but also
whether they could control their impulses to commit
wrong-doing. The irresistible impulse test was first
adopted by the Alabama Supreme Court in the 1887
case of Parsons v. State. The Alabama Court stated
that even though the defendant could tell right from
wrong, he was subject to ‘‘the DURESS of such mental
disease [that] he had... lost the power to choose be-
tween right and wrong’’ and that ‘‘his free agency
was at the time destroyed,’’ and thus, ‘‘the alleged
crime was so connected with such mental disease, in
the relation of cause and effect, as to have been the
product of it solely.’’ In so finding, the court assigned
responsibility for the crime to the mental illness de-
spite the defendant’s ability to distinguish right from
wrong.
The irresistible impulse test gained acceptance in
various states as an appendage to M’Naghten, whose
test of right versus wrong was still considered a vital
part of any definition of insanity. In some cases, irre-
sistible impulse was considered a variation on
M’Naghten; in others it was considered a separate
test. Though the Irresistible Impulse test was consid-
ered an important corrective on M’Naghten’s cogni-
tive BIAS, it still came under some criticism of its own.
For example, it seemed to make the definition of in-
sanity too broad, failing to take into account the im-
possibility of determining which acts were uncon-
trollable rather than merely uncontrolled, and also
making it easier to fake insanity. The test was also
criticized as being too narrow: like M’Naghten, the
test seemed to exclude all but those totally unable to
control their actions. Nevertheless, several states cur-
rently use this test along with the M’Naghten rule to
determine insanity, and the American Law Institute
in its Model Penal Code definition of insanity adopt-
ed a modified version of it.
The Durham Rule
The DURHAM RULE, originally adopted in New
Hampshire in 1871, was embraced by the Circuit
Court of Appeals for the District of Columbia in the
1954 case of Durham v. United States. The Durham
Rule, sometimes referred to as the ‘‘product test,’’
provides the defendant is not ‘‘criminally responsible
if his unlawful act is the product of a mental disease
or defect.’’
The Durham Rule was originally seen as a way of
simplifying the M’Naghten Rule and the Irresistible
Impulse test by making insanity and its relation to
the crime a matter of objective diagnosis. Unfortu-
nately, such a diagnosis proved to be harder to make
in practice than in theory. The test was criticized be-
cause the Circuit Court had provided no real defini-
tion of mental disease or defect and no definition of
product either. The Durham Rule proved very diffi-
cult to apply, and the Circuit Court abandoned it in
1972. Currently, only the state of New Hampshire
still uses the Durham Rule as a way to define insanity.
CRIMINAL LAW—INSANITY DEFENSE
354 GALE ENCYCLOPEDIA OF EVERYDAY LAW
The American Law Institute’s Model
Penal Code Test
In response to the criticisms of the various tests
for the insanity defense, the American Law Institute
(ALI) designed a new test for its Model Penal Code
in 1962. Under this test, ‘‘a person is not responsible
for criminal conduct if at the time of such conduct
as a result of mental disease or defect he lacks sub-
stantial capacity either to appreciate the criminality
of his conduct or to conform his conduct to the re-
quirements of the law.’’
The penal code test is much broader than the
M’Naghten Rule and the Irresistible Impulse test. It
asks whether defendants have a substantial incapaci-
ty to appreciate the criminality of their conduct or to
conform their conduct to the law rather than the ab-
solute knowledge required by M’Naghten and the ab-
solute inability to control conduct required by the Ir-
resistible Impulse test.
The ALI test also requires that the mental disease
or defect be a medical diagnosis. In this way, it man-
ages to incorporate elements of all three of its pre-
decessors: the knowledge of right and wrong re-
quired by M’Naghten, the prerequisite of lack of
control in the Irresistible Impulse test, and the diag-
nosis of mental disease and defect required by Dur-
ham.
Such a broad based rule received wide accep-
tance, and by 1982 all federal courts and a majority
of state courts had adopted the ALI test. While some
states have since dropped the ALI test, and it no lon-
ger applies at a federal level, 18 states still use the ALI
test in their definitions of insanity.
The Hinckley Trial and Its Aftermath
In 1982, John W. Hinckley, who had attempted in
1981 to assassinate President Ronald Reagan, was ac-
quitted by a District of Columbia court by reason of
insanity. The enormous outrage after Hinckley’s ac-
quittal led three states to drop the insanity defense
entirely (Montana, Utah, and Idaho, joined by a
fourth, Kansas, in 1995). Other states reformed their
insanity defense statutes, by adopting the M’Naghten
standard over the ALI standard, by shifting the bur-
den of proof from the state to the defense, by chang-
ing their commitment and release procedures, or
adopting a ‘‘Guilty but Mentally Ill’’ defense. In addi-
tion, the federal courts shifted from the ALI standard
to a new law eliminating the irresistible impulse test
for insanity defenses in federal crimes.
Burden of Proof
The question of who has the burden of proof with
an insanity defense has been a source of controversy.
Before the Hinckley verdict, a majority of states had
the burden of proof rest with the state; that is, the
PROSECUTOR had to prove the defendant was insane.
After the Hinckley verdict, the vast majority of states
required the defense to prove affirmatively insanity.
In states where the burden is on the defense to
prove insanity, the defense is required to show either
clear and convincing EVIDENCE or a preponderance of
the evidence that the defendant is insane. In states
where the burden is still on prosecutors to prove
sanity, they are required to prove it BEYOND A REASON-
ABLE DOUBT.
Commitment and Release Procedures
Contrary to uninformed opinion, defendants
found not guilty by reason of insanity are not simply
released from CUSTODY. They are generally commit-
ted to a mental hospital where they can be confined
for longer than their prison terms would have been.
In the case of Jones v. United States, the Supreme
Court in 1983 backed this proposition, ruling that
the sentence that criminal defendants would have re-
ceived had they been convicted should have no bear-
ing on how long they could be committed to a men-
tal hospital.
After Hinckley, many states changed their com-
mitment policies to ensure that a defendant found
not guilty by reason of insanity would be required to
stay in a mental hospital for a certain period of time
for evaluation following acquittal. Previously, no time
was specified. Also, several states changed the bur-
den of proof for release from the state to defendants.
The Federal Insanity Defense Reform Act
The Federal Insanity Defense Reform Act, codified
at 18 U.S.C. s. 17, holds: ‘‘It 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.’’ This act, a response to the
Hinckley verdict, eliminated the irresistible impulse
test from the insanity defense under federal law. The
act also provided that ‘‘the defendant has the burden
of proving the defense of insanity by clear and con-
vincing evidence.’’ Previously under federal law, the
government had the burden of proving sanity.
CRIMINAL LAW—INSANITY DEFENSE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 355
Guilty but Mentally Ill
Finally, the Hinckley verdict accelerated the
ADOPTION of ‘‘guilty but mentally ill’’ verdicts by
states. ‘‘Guilty but mentally ill’’ verdict allows mental-
ly ill defendants to be found criminally liable and re-
quires them to receive psychiatric treatment while
incarcerated, or, alternatively, to be placed in a men-
tal hospital and then when they are well enough to
be moved to a prison to serve their sentences. Laws
allowing pleas and verdicts of guilty but mentally ill
were first adopted in Michigan in 1975, and concur-
rent with or subsequent to the Hinckley trial were
adopted by 12 more states.
Current Status of the Insanity Defense
among the States
The following list gives the status of the insanity
defense in all 50 states, describes the test used, the
party on whom the burden of proof lies, and whether
the state uses the guilty but mentally ill verdict.
ALABAMA: M’Naghten Rule, burden of proof on de-
fendant.
ALASKA: M’Naghten Rule, burden of proof on defen-
dant, guilty but mentally ill verdicts allowed.
ARIZONA: M’Naghten Rule, burden of proof on de-
fendant.
ARKANSAS: ALI Model Penal Code standard, burden
of proof on defendant.
CALIFORNIA: M’Naghten Rule, burden of proof on
defendant.
COLORADO: M’Naghten Rule with irresistible im-
pulse test, burden of proof on state.
CONNECTICUT: ALI Model Penal Code standard,
burden of proof on defendant.
DELAWARE: M’Naghten Rule, burden of proof on de-
fendant, guilty but mentally ill verdicts allowed.
DISTRICT OF COLUMBIA: ALI Model Penal Code
standard, burden of proof on defendant.
FLORIDA: M’Naghten Rule, burden of proof on state.
GEORGIA: M’Naghten Rule with irresistible impulse
test, burden of proof on defendant, guilty but men-
tally ill verdicts allowed.
HAWAII: ALI Model Penal Code standard, burden of
proof on defendant.
IDAHO: Abolished insanity defense.
ILLINOIS: ALI Model Penal Code standard, burden of
proof on defendant, guilty but mentally ill verdicts al-
lowed.
INDIANA: M’Naghten Rule, burden of proof on de-
fendant, guilty but mentally ill verdicts allowed.
IOWA: M’Naghten Rule, burden of proof on defen-
dant.
KANSAS: Abolished insanity defense.
KENTUCKY: ALI Model Penal Code standard, burden
of proof on defendant, guilty but mentally ill verdicts
allowed.
LOUISIANA: M’Naghten Rule, burden of proof on de-
fendant.
MAINE: ALI Model Penal Code standard, burden of
proof on defendant.
MARYLAND: ALI Model Penal Code standard, burden
of proof on defendant.
MASSACHUSETTS: ALI Model Penal Code standard,
burden of proof on state.
MICHIGAN: ALI Model Penal Code standard, burden
of proof on state, guilty but mentally ill verdicts al-
lowed.
MINNESOTA: M’Naghten Rule, burden of proof on
defendant.
MISSISSIPPI: M’Naghten Rule, burden of proof on
state.
MISSOURI: M’Naghten Rule, burden of proof on de-
fendant.
MONTANA: Abolished insanity defense, guilty but
mentally ill verdicts allowed.
NEBRASKA: M’Naghten Rule, burden of proof on de-
fendant.
NEVADA: M’Naghten Rule, burden of proof on de-
fendant.
NEW HAMPSHIRE: Durham standard, burden of
proof on defendant.
NEW JERSEY: M’Naghten Rule, burden of proof on
state.
NEW MEXICO: M’Naghten Rule with irresistible im-
pulse test, burden of proof on state, guilty but men-
tally ill verdicts allowed.
NEW YORK: M’Naghten Rule (modified), burden of
proof on defendant.
CRIMINAL LAW—INSANITY DEFENSE
356 GALE ENCYCLOPEDIA OF EVERYDAY LAW
NORTH CAROLINA: M’Naghten Rule, burden of
proof on defendant.
NORTH DAKOTA: ALI Model Penal Code standard
(modified), burden of proof on state.
OHIO: ALI Model Penal Code standard, burden of
proof on defendant.
OKLAHOMA: M’Naghten Rule, burden of proof on
state.
OREGON: ALI Model Penal Code standard, burden
of proof on defendant.
PENNSYLVANIA: M’Naghten Rule, burden of proof
on defendant, guilty but mentally ill verdicts allowed.
RHODE ISLAND: ALI Model Penal Code standard,
burden of proof on defendant.
SOUTH CAROLINA: M’Naghten Rule, burden of
proof on defendant, guilty but mentally ill verdicts al-
lowed.
SOUTH DAKOTA: M’Naghten Rule, burden of proof
on defendant, guilty but mentally ill verdicts allowed.
TENNESSEE: ALI Model Penal Code standard, bur-
den of proof on state.
TEXAS: M’Naghten Rule with irresistible impulse
test, burden of proof on defendant.
UTAH: Abolished insanity defense, guilty but mental-
ly ill verdicts allowed.
VERMONT: ALI Model Penal Code standard, burden
of proof on defendant.
VIRGINIA: M’Naghten Rule with irresistible impulse
test, burden of proof on defendant.
WASHINGTON: M’Naghten Rule, burden of proof on
defendant.
WEST VIRGINIA: ALI Model Penal Code standard,
burden of proof on state.
WISCONSIN: ALI Model Penal Code standard, bur-
den of proof on defendant.
WYOMING: ALI Model Penal Code standard, burden
of proof on defendant.
Additional Resources
American Jurisprudence. 2nd Edition, ss. 47-91, 281, 483.
West Group, 1998.
Before and After Hinckley: Evaluating Insanity Defense
Reform. Harry Steadman et al., The Guilford Press,
1993.
Mental Health and Disability Law. Donald H. J. Hermann,
West Group, 1997.
Model Penal Code and Commentaries. American Law In-
stitute, 1985.
Parsons v. State. Supreme Court of Alabama, July 28, 1887.
‘‘Those Crazy Kids, Providing the Insanity Defense in Ju-
venile Courts.’’ Emily Pollock, Minnesota Law Review,
June 2001.
‘‘Toward A New Test for The Insanity Defense: Incorporat-
ing the Discoveries of Neuroscience into Moral and
Legal Theories.’’ Laura Reider, UCLA Law Review, Oct.
1998.
U. S. Code, Title 18: Crimes and Criminal Procedure, Part
I: Crimes, Chapter 1: General Provisions. U. S. House
of Representatives, 2001. Available at http://
uscode.house.gov/title_18.htm.
Organizations
American Bar Association Criminal Justice
Section
740 15th Street, NW, 10th Floor
Washington, DC 20005-1009 USA
Phone: (202) 662-1500
Fax: (202) 662-1501
URL: http://www.abanet.org/crimjust/contact.html
Primary Contact: Thomas Smith, Section Director
American Psychological Association (APA)
750 First Street, NE,
Washington, DC 20002-4242 USA
Phone: (202) 336-5510
URL: http://www.apa.org/
Primary Contact: Raymond D. Fowler, Chief
Executive Officer
Association of Federal Defense Attorneys
8530 Wilshire Blvd, Suite 404
Beverly Hills, CA 90211 USA
Phone: (310) 397-1001
E-Mail: AFDA2@AOL.com
URL: http://www.afda.org/
Primary Contact: Gregory Nicolaysen, President
CRIMINAL LAW—INSANITY DEFENSE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 357
This Page Intentionally Left Blank
CRIMINAL LAW
JUVENILES
Sections within this essay:
• Background
• Development of the Juvenile Justice System
• Juvenile Case History
• Juveniles and Status Offenses
• Examples of Status Offenses
- Curfew
- Truancy
• Juvenile Court Procedure
• Juvenile Waiver
- Judicial Waiver Offenses
- Statutory Exclusion
- Concurrent Jurisdiction
• Juveniles and the Death Penalty
• Additional Resources
Background
In the eyes of the law, a juvenile or a minor, is any
person under the legal adult age. This age varies
from state to state, but in most states, the District of
Columbia, and in all Federal Districts, any person age
18 or younger is considered a juvenile. In several
states, such as New York, Connecticut, and North
Carolina, a juvenile is age 16 or less, and in Georgia,
Illinois, Louisiana, Massachusetts, Michigan, Missou-
ri, New Hampshire, South Carolina, Texas and Wis-
consin, a juvenile is age 17 or less. Wyoming is the
only state that has established the age of juveniles to
be 19 or younger (Whitehead & Lab, 1999).
As well as having upper age limits, juvenile juris-
dictions also have lower age limits. Most states speci-
fy that prior to age six or seven, juveniles lack mens
rea, or criminal intent. At this young age, juveniles
also are thought to lack the ability to tell right from
wrong, or dolci incapax. Usually, the age of the of-
fender refers to the age of the offender at the time
the offense was committed, but in some states, age
refers to the offender’s age at the time of apprehen-
sion. This arrangement allows for the sometimes
lengthy periods it takes to clear a case.
One’s status as a juvenile or as an adult is perti-
nent for the court’s determination of the
JURISDICTION under which an offender falls—the
adult or the juvenile court system. If it is decided that
a juvenile will be tried in a juvenile court, most states
allow the juvenile to remain under that jurisdiction
until the defendant’s 21st birthday.
Relying on age as a sole determinant for adult-
hood has been criticized by many criminologists and
policy makers since individuals develop at different
rates. Some youth are far more mature at 18 years of
age than some adults are. Because of this discrepan-
cy, juvenile court judges have been given broad dis-
cretion to waive juveniles to adult court for trial and
sentencing (see later section). In rare situations, the
courts also have the power to emancipate a juvenile
so that he or she becomes an adult under the law and
is granted certain adult privileges. For example, if a
17-year-old loses both parents and has no other liv-
ing relatives, he or she could be emancipated in
order to pursue CUSTODY of his or her younger sib-
lings.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 359
Development of the Juvenile Justice
System
The legal concept of juvenile status, like the con-
cept of childhood itself, is relatively new. The juve-
nile court system was established in the United
States about two hundred years ago, with the first
court appearing in Illinois in 1899. Prior to that time,
children and youth were seen as miniature adults
and were tried and punished as adults.
During the progressive era, which occurred be-
tween 1880 and 1920, social conditions in the United
States were characterized by large waves of
IMMIGRATION and a dramatic increase in urbanization.
As a direct result, hundreds of indigent children wan-
dered the streets, and many became involved in
criminal activity. Initially, children who were convict-
ed of crimes were housed with adult criminals. Social
activists, law makers, and other officials soon realized
that children institutionalized with adults were learn-
ing adult criminal behaviors and were exiting those
institutions ready for life careers in criminality. Be-
cause of this negative influence, separate juvenile
court systems and accompanying correctional insti-
tutions were developed.
Early juvenile institutions in the United States
were based on the English Bridewell institution
which emphasized the teaching of life and trade
skills. The idea behind teaching skills was that crimi-
nality was a result of the social environment and
often was a survival mechanism. If youth were taught
other skills, they were more likely to make meaning-
ful contributions to society upon their release.
Three other types of juvenile institutions began to
appear in the United States during the progressive
era: houses of refuge, new reformatories, and sepa-
rate institutions for juvenile females. Houses of ref-
uge focused on the reeducation of youth and used
indeterminate sentencing, religious training, and ap-
prenticeships in various trades. The houses were or-
ganized using a military model to promote order and
discipline, but the houses were often overcrowded
and youth were overworked.
New reformatories, established in the mid to late
1800s, were cottages and foster homes that were
often situated on farms. Family-type organization
was prevalent, and hard physical labor was stressed.
New reformatories suffered from the same types of
problems that houses of refuge did. Separate juve-
nile institutions for girls appeared in the mid 1880s,
and these focused on teaching domestic and child-
rearing skills to girls.
The first juvenile courts operated under the phi-
losophy of parens patriae first articulated in Prince
v. Massachusetts (1944). This philosophy meant the
state could act ‘‘as a parent,’’ and gave juvenile
courts the power to intervene whenever court offi-
cials felt intervention was in the best interests of the
child. Any offense committed was secondary to the
offender. While parens patriae was designed to han-
dle youth committing criminal acts, the discretion of
this philosophy became increasingly more broad and
was constantly debated in court. A number of pivotal
cases ensued which helped the juvenile justice sys-
tem evolve.
Juvenile Case History
In 1838, a man by the name of Crouse took the
state to court over the INCARCERATION of his daugh-
ter, Mary Ann. Mary Ann Crouse was being held at a
house of refuge against her father’s wishes but at the
BEQUEST of her mother, who felt Mary Ann had be-
come unruly and unmanageable. Mary Ann had not
committed any crime. The courts held in Ex parte
Crouse that the house of refuge was a reformatory
rather than a jail, and Mary Ann’s behavior could be
reformed as long as she remained there. In essence,
the court ruled that the judicial system had the right
to assist families with troubled youth.
Some thirty years later in People v. Turner (1870),
Turner protested being held in a house of refuge
against the wishes of both his parents. He was incar-
cerated because the state felt he was in danger of be-
coming a criminal. His parents actually won this case,
and it was decided that the state should only inter-
vene in troubled families given extreme circum-
stances. However, the verdict was largely ignored by
the courts.
In 1905, a juvenile was given a seven-year sen-
tence for a minor crime that would have received a
far lesser sentence in an adult court. This dilemma
was argued in Commonwealth v. Fisher. In this case,
the court decided that the long sentence was neces-
sary and in the best interests of the child, thus broad-
ening juvenile court discretion under the parens
patriae philosophy. It was not until Kent v. the Unit-
ed States in 1966, that the courts recognized the dis-
cretionary powers of parens patriae had gone too
far and were perhaps encroaching on the constitu-
tional rights of juveniles. In this case, 16-year-old
Morris Kent had been waived to adult court without
a HEARING. Kent’s attorney challenged the decision,
citing a sixth Amendment violation. This case scruti-
CRIMINAL LAW—JUVENILES
360 GALE ENCYCLOPEDIA OF EVERYDAY LAW
nized the entire juvenile justice process, and as a re-
sult, a more formal set of procedures was estab-
lished.
In 1967, another juvenile case was argued in the
Supreme Court that also addressed the constitution-
al rights of juveniles. In re Gault addressed the sepa-
ration of adult and juvenile courts, and Fifth and
Sixth Amendment privileges for juveniles. Gerald
Gault, a 15-year-old juvenile, had been sentenced to
a maximum of six years in a state training school for
making obscene phone calls to a woman. The case
was originally heard in a very informal juvenile court
proceeding. The ACCUSED was not represented by an
attorney, and there was no transcript of the hearing.
The Supreme Court ruled that the juvenile courts
must protect the constitutional rights of juveniles,
and rules and regulations must be imposed in the ju-
venile justice system:
Under our Constitution, the condition of being a
boy does not constitute a kangaroo court. The tradi-
tional ideas of the juvenile court procedure, indeed,
contemplated that time would be available and
care would be used to establish precisely what the
juvenile did and why he did it. IN RE Gault, 387 U.S.
1 (1967).
The protection of juveniles’ rights upheld by In re
Gault were further reinforced by In re Winship
(1970), in which the Supreme Court extended the
reasonable standard of doubt for guilt to juveniles.
However, the following year, the right to trial by a
jury of peers for juveniles was denied by the Su-
preme Court in McKeiver v. Pennsylvania. Several
reasons were presented for the denial, including the
notion that the juvenile system was not meant to be
an adversarial one and was instead designed to be
less formal and, therefore, more protective of juve-
niles’ privacy. The Supreme Court justices also felt
that allowing juvenile trials by jury would be an indi-
cation that the juvenile courts had lost their useful-
ness.
Juveniles and Status Offenses
With the division of courts into adult and juvenile
jurisdictions, there were a number of activities that
were deemed offenses for juveniles. As a group,
these are called status offenses and are such simply
because of the age of the offender. Truancy, posses-
sion and consumption of alcohol, incorrigibility, cur-
few violations, and purchase of cigarettes are exam-
ples of status offenses. The theory behind status
offenses stems from parens patriae in that status of-
fenses are harmful to minors, and the courts need to
protect minors from such activities.
During the late 1960s and 1970s, there was a move
toward deinstitutionalizing status offenses. The
movement was formalized by the 1974 Federal Juve-
nile Delinquency Act. Deinstitutionalization meant
that juveniles who committed status offenses were
diverted from the juvenile justice system to agencies
outside the juvenile court’s jurisdiction. The county
or district attorney was given the authority to divert
an offender, and this decision was made before a pe-
tition was filed (see below section on court proce-
dure). Diversion was implemented because many
legislators felt that status offenses were minor in
terms of criminal nature, and juveniles were better
off having their families or some other agency deal
with the matter than being formally processed by the
justice system. Formal processing of status offenses
was thought to lead to labeling and further delin-
quent acts, thus negating the whole purpose of reha-
bilitation. Diversion is till practiced today.
One STATUS OFFENSE, incorrigibility, received a lot
of attention during the 1970s. Juveniles who habitu-
ally do not obey their parents are incorrigible. With
parens patriae still operating, many incarcerated ju-
veniles were serving time for incorrigibility. Critics ar-
gued that almost all juveniles disobey their parents
at some point, and such behavior may not always
WARRANT court action. It seemed that incarceration
exposed juveniles to much more severe criminality
and sometimes even sexual and physical abuse. In
short, juveniles came out of the system less social-
ized than when they entered it.
After diversion, juveniles who were adjudicated
for status offenses were often classified as children
in need of supervision (CHINS), persons in need of
supervision (PINS), and minors in need of supervi-
sion (MINS). Today, status offenses are still illegal in
all states, and many juveniles are still confined for
such offenses. The Department of Justice estimated
that in 1996, juvenile courts around the United States
formally disposed of some 162,000 status offenses,
44,800 of which were liquor law violations (OJJDP,
2000).
Examples of Status Offenses
Curfew
Many cities, such as New Orleans, Atlanta, and
Washington, D.C., require individuals under the age
CRIMINAL LAW—JUVENILES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 361
of 17 to be off the streets by 11 p.m. Teenagers found
violating this curfew are held at a police-designated
truancy center until a parent or GUARDIAN claims
them. Parents who are determined to be aiding and
abetting curfew violators are subject to fines and
community service. Curfew laws have been chal-
lenged on the grounds that they violate the First
Amendment by prohibiting a juvenile’s right to free
association. In Qutb v. Strauss (1993), the U. S. Court
of Appeals held that curfew laws were constitutional
because they are designed to protect the communi-
ty.
Truancy
Most local laws prohibit school-age children from
taking unexcused school absences. If caught being
truant, juveniles may be processed in juvenile court
or processed informally. In some states, such as Vir-
ginia and Arizona, parents can also be held account-
able for their children’s truancy and may be fined or
jailed.
Juvenile Court Procedure
The procedure and organization of the juvenile
court system is different from the adult system. After
committing an offense, juveniles are detained rather
than arrested. Next, a petition is drawn up which out-
lines the jurisdiction authority of the juvenile court
over the offense and detained individuals, gives no-
tice for the reason for the court appearance, serves
as notice to the minor’s family, and also is the official
charging document. Once in court, the juvenile case
is adjudicated, and a DISPOSITION is handed down.
Records from juvenile courts are sealed documents,
unlike adult records which are accessible by anyone
under the FREEDOM OF INFORMATION ACT. Like diver-
sion, this measure is designed to protect the juvenile
so that one mistake does not follow the juvenile for
life. Juvenile records may also be expunged upon the
juvenile’s eighteenth birthday provided the juvenile
has met certain conditions, such as good behavior.
Juvenile court procedure is also far less formal than
adult court procedure.
The disposition of a juvenile case is based on the
least detrimental alternative, so the legacy of parens
patriae is still evident. However, one major contro-
versy in juvenile dispositions is the use of indetermi-
nate sentencing, which allows a judge to set a maxi-
mum sentence. In such cases, juveniles are
monitored during their sentences and are released
only when the judge is satisfied that they have been
rehabilitated or when the maximum time has been
served. Critics argue that this arrangement allows the
judge too much discretion and is, therefore, not the
least detrimental punishment.
Juvenile courts are typically organized in one of
three ways: 1) as a separate entity; 2) as part of a
lower court, such as a city court or district court; or
3) as part of a higher court, such as a circuit court or
a superior court. The organization model varies state
by state, and some states, for example, Alabama,
allow each county and city jurisdiction to decide
which is the best method of organization. Where the
juvenile court sits has profound implications for the
juvenile process.
Juvenile Waiver
One of the more hotly debated subjects with re-
gard to juveniles has to do with the option to WAIVER
to adult court. Currently, there are three mecha-
nisms by which a juvenile’s case may be waived to an
adult court.
Judicial Waiver Offenses
A judicial waiver occurs when a juvenile court
judge transfers a case from juvenile to adult court in
order to deny the juvenile the protections that juve-
nile jurisdictions provide. All states except Nebraska,
New York, and New Mexico, currently provide for ju-
dicial waiver and have set a variety of lower age limits
(Snyder, Sickmund & Poe-Yamagata, 2000). In most
states, the youngest offender who can be waived to
adult court is a 17 or 18-year-old, although in some
states, this age is as low as 13 or 14. Usually, the of-
fense allegedly committed must be particularly egre-
gious in order for the case to be waived judicially, or
there must be a long history of offenses.
Statutory Exclusion
By 1997, 28 states had STATUTORY exclusions,
which are provisions in the law to exclude some of-
fenses, such as first-degree murder, from juvenile
court jurisdiction. This number is expected to in-
crease.
Concurrent Jurisdiction
Some states also have a legal provision which al-
lows the PROSECUTOR to file a juvenile case in both
juvenile and adult court because the offense and the
age of the accused meet certain criteria. Prosecutori-
al transfer does not have to meet the due process re-
quirement stipulated by Kent v. The United
States.Approximately 15 states currently have this
provision, although this number is expected to in-
crease in the next few years.
CRIMINAL LAW—JUVENILES
362 GALE ENCYCLOPEDIA OF EVERYDAY LAW
The most important case guiding juvenile waiver
is Breed v. Jones (1975). This case designates that a
juvenile cannot be adjudicated in a juvenile court
then be waived and tried in an adult court. To do so
is to try the youth twice for the same crime (DOUBLE
JEOPARDY), which violates the Fifth Amendment.
However, in reality, this case did not have much im-
pact on the juvenile system since juveniles are now
subject to a waiver hearing which appears to be simi-
lar to a trial except in outcome.
Juveniles and the Death Penalty
In the case of first-degree murder, juveniles who
are waived to adult court may also face the death
penalty. There are two key court cases that have laid
the foundation for juveniles to receive the death
penalty.
In Thompson v. Oklahoma (1988), the Supreme
Court overturned a death sentence for a juvenile
who was 15 years old at the time he was involved in
a murder. The opinion cited the failure of the state
of Oklahoma to stipulate a minimum age for
EXECUTION. This case has also set the minimum age
of 16 at which a juvenile can be executed.
In Stanford v. Kentucky (1989), the Supreme
Court ruled that it was constitutional for a state to ex-
ecute a juvenile who was between the ages of 16 and
18 at the time of the offense but unconstitutional if
the juvenile was under 16.
Although there have been a number of challenges
to the minimum age of 16 for juvenile execution set
by Thompson v. Oklahoma, such as State v. Stone
(LA, 1988), Flowers v. State, (AL, 1991) and Allen v.
State (FL, 1994), these challenges have only gone as
far as the court of appeals.
Some 38 states now have laws allowing the execu-
tion of juveniles regardless of age, and at the time of
this publication, 361 juveniles have been executed,
beginning with Thomas Graunger, who was execut-
ed in 1642 in Massachusetts. After 1990, the only
known countries that execute juveniles are Iran, Pa-
kistan, Yemen, Saudi Arabia, and the United States
(www.deathpenaltyinfo.org). Minimum ages for the
death penalty are as follows:
• AGE 16: Alabama, Arizona, Arkansas, Dela-
ware, Idaho, Indiana, Kentucky, Louisiana,
Mississippi, Missouri, Nevada, Oklahoma,
Pennsylvania, South Carolina, South Dakota,
Utah, Virginia, Wyoming.
• AGE 17: Florida, Georgia, New Hampshire,
North Carolina, Texas.
• AGE 18: California, Colorado, Connecticut,
Illinois, Kansas, Maryland, Montana, Nebras-
ka, New Jersey, New Mexico, New York,
Ohio, Oregon, Tennessee, Washington, fed-
eral districts.
Additional Resources
Child Delinquents: Developments, Intervention, and Ser-
vice Needs. Ralph Loeber and David P. Farrington, Sage
Publications, 2000.
Juvenile Delinquency: Causes and Controls. Robert
Agnew, Roxbury Publishing, 2001.
Juvenile Justice: An Introduction (Third Edition). John T.
Whitehead and Steven P. Lab, Anderson Publishing,
1999.
Juvenile Transfers to Criminal Court in the 1990s: Lessons
Learned from Four States. Howard N. Snyder, Melissa
Sickmund, Eileen Poe-Yamagata, Office of Juvenile Jus-
tice and Delinquency Prevention, 2000.
Organizations
American Bar Association Juvenile Justice
Center
740 15th Street NW
Washington, DC 20005 USA
Phone: (202) 662-1506
Fax: (202) 662-1506
URL: http://www.abanet.org/crimjust/juvjust/
home.htm
Death Penalty Information Center
1320 18th Street NW
Washington, DC 20036 USA
Phone: (202) 293-6970
Fax: (202) 822-4787
URL: http://www.deathpenaltyinfo.org
Juvenile Justice Clearinghouse
P.O. Box 6000
Rockville, MD 20849-6000 USA
Phone: (800) 638-8769
Fax: (301) 519-5600
E-Mail: tellncjrs@ncjrs.org
National Center for Juvenile Justice
710 Fifth Avenue, Suite 3000
Pittsburgh, PA 15219 USA
Phone: (412) 227-6950
Fax: (412) 227-6955
CRIMINAL LAW—JUVENILES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 363
URL: http://brendan.ncjfcj.unr.edu/homepage/ncjj/
ncjj2/index.html
Office of Juvenile Justice and Delinquency
Prevention, U.S. Department of Justice
Washington, DC USA
URL: http://www.ojjdp.ncjrs.org
CRIMINAL LAW—JUVENILES
364 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CRIMINAL LAW
PLEA BARGAINING
Sections within this essay:
• Background
• Pros and Cons
• U. S. Supreme Court Cases
• The Alford Plea
• Plea Bargaining in Federal Courts
• Prohibitions and Restrictions
• State Provisions
• Additional Resources
Background
There is no perfect or simple definition of PLEA
BARGAINING. Black’s Law Dictionary defines it as fol-
lows:
‘‘[t]he process whereby the ACCUSED and the
PROSECUTOR in a criminal case work out a mutually
satisfactory DISPOSITION of the case subject to court
approval. It usually involves the defendant’s pleading
guilty to a lesser offense or to only one or some of
the counts of a multi-count INDICTMENT in return for
a lighter sentence than that possible for the graver
charge.’’
In practice, PLEA bargaining often represents not
so much ‘‘mutual satisfaction’’ as perhaps ‘‘mutual
acknowledgement’’ of the strengths or weaknesses
of both the charges and the defenses, against a back-
drop of crowded criminal courts and court case
dockets. Plea bargaining usually occurs prior to trial
but, in some jurisdictions, may occur any time before
a verdict is rendered. It also is often negotiated after
a trial that has resulted in a HUNG JURY: the parties
may negotiate a plea rather than go through another
trial.
Plea bargaining actually involves three areas of ne-
gotiation:
• Charge Bargaining: This is a common and
widely known form of plea. It involves a ne-
gotiation of the specific charges (counts) or
crimes that the DEFENDANT will face at trial.
Usually, in return for a plea of ‘‘guilty’’ to a
lesser charge, a prosecutor will dismiss the
higher or other charge(s) or counts. For ex-
ample, in return for dismissing charges for
first-degree murder, a prosecutor may ac-
cept a ‘‘guilty’’ plea for MANSLAUGHTER (sub-
ject to court approval).
• Sentence Bargaining: Sentence bargaining
involves the agreement to a plea of guilty
(for the stated charge rather than a reduced
charge) in return for a lighter sentence. It
saves the prosecution the necessity of going
through trial and proving its case. It provides
the defendant with an opportunity for a
lighter sentence.
• Fact Bargaining: The least used negotiation
involves an admission to certain facts (‘‘stip-
ulating ‘‘to the truth and existence of prov-
able facts, thereby eliminating the need for
the prosecutor to have to prove them) in re-
turn for an agreement not to introduce cer-
tain other facts into EVIDENCE.
The validity of a plea bargain is dependent upon
three essential components:
GALE ENCYCLOPEDIA OF EVERYDAY LAW 365
• a knowing WAIVER of rights
• a voluntary waiver
• a factual basis to support the charges to
which the defendant is pleading guilty
Plea bargaining generally occurs on the telephone
or in the prosecutor’s office at the courtroom. Judg-
es are not involved except in very rare circumstances.
Plea bargains that are accepted by the judge are then
placed ‘‘on the record’’ in OPEN COURT. The defen-
dant must be present.
One important point is a prosecuting attorney has
no authority to force a court to accept a plea agree-
ment entered into by the parties. Prosecutors may
only ‘‘recommend’’ to the court the acceptance of a
plea arrangement. The court will usually take proofs
to ensure that the above three components are satis-
fied and will then generally accept the recommenda-
tion of the prosecution.
Moreover, plea bargaining is not as simple as it
may first appear. In effectively negotiating a criminal
plea arrangement, the attorney must have the techni-
cal knowledge of every ‘‘element’’ of a crime or
charge, an understanding of the actual or potential
evidence that exists or could be developed, a techni-
cal knowledge of ‘‘lesser included offenses’’ versus
separate counts or crimes, and a reasonable under-
standing of sentencing guidelines.
Pros and Cons
Although plea bargaining is often criticized, more
than 90 percent of criminal convictions come from
negotiated pleas. Thus, less than ten percent of crim-
inal cases go to trial. For judges, the key incentive for
accepting a plea bargain is to alleviate the need to
schedule and hold a trial on an already overcrowded
DOCKET. Judges are also aware of prison overcrowd-
ing and may be receptive to the ‘‘processing out’’ of
offenders who are not likely to do much jail time any-
way.
For prosecutors, a lightened caseload is equally at-
tractive. But more importantly, plea bargaining as-
sures a CONVICTION, even if it is for a lesser charge or
crime. No matter how strong the evidence may be,
no case is a foregone conclusion. Prosecutors often
wage long and expensive trials but lose, as happened
in the infamous O. J. Simpson murder trial. More-
over, prosecutors may use plea bargaining to further
their case against a co-defendant. They may accept
a plea bargain arrangement from one defendant in
return for damaging TESTIMONY against another. This
way, they are assured of at least one conviction (albe-
it on a lesser charge) plus enhanced chances of win-
ning a conviction against the second defendant. For
the defendants, plea bargaining provides the oppor-
tunity for a lighter sentence on a less severe charge.
If represented by private COUNSEL, defendants save
the cost for trial and have fewer or less serious of-
fenses listed on their criminal records.
U. S. Supreme Court Cases
Article III, Section 2[3] of the U. S. Constitution
provides that ‘‘The trial of all crimes, except in Cases
of IMPEACHMENT, shall be by Jury.’’ However, it has
never been judicially determined that engaging in a
plea bargaining process to avoid trial subverts the
Constitution. To the contrary, there have been nu-
merous court decisions, at the highest levels, that
discuss and rule on plea bargains. The U. S. Supreme
Court did not address the constitutionality of plea
bargaining until well after it had become an integral
part of the criminal justice system.
In United States v. Jackson, 390 U.S. 570 (1968),
the Court questioned the validity of the plea bargain-
ing process if it burdened a defendant’s right to a jury
trial. At issue in that case was a STATUTE that imposed
the death penalty only after a jury trial. Accordingly,
to avoid the death penalty, defendants were waiving
trials and eagerly pleading guilty to lesser charges.
Justice Potter Stewart, writing for the majority, noted
that the problem with the statute was not that it co-
erced guilty pleas but that it needlessly encouraged
them.
Two years later, the Court actually defended plea
bargaining in Brady v. United States, 397 U.S. 742
(1970), pointing out that the process actually benefit-
ed both sides of the adversary system. The Court
noted that its earlier opinion in Jackson merely re-
quired that guilty pleas be intelligent and voluntary.
The following year, in Santobello v. New York, 404
U.S. 260 (1971), the Court further justified the consti-
tutionality of plea bargaining, referring to it as ‘‘an es-
sential component of the administration of justice.’’
The Court added that ‘[as long as it is] properly ad-
ministered, [plea bargaining] is to be encouraged.’’
The Alford Plea
But the most cited and most familiar Supreme
Court case on plea bargaining is North Carolina v. Al-
CRIMINAL LAW—PLEA BARGAINING
366 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ford, 400 U.S. 25 (1970). In 1970, North Carolina law
provided that a penalty of life IMPRISONMENT would
attach to a plea of guilty for a capital offense, but the
death penalty would attach following a jury verdict
of guilty (unless the jury recommended life impris-
onment). Alford faced the death penalty for first-
degree murder. Although he claimed innocence on
all charges (in the face of strong evidence to the con-
trary), Alford pleaded guilty to second-degree mur-
der prior to trial. The prosecutor accepted the plea,
and he was sentenced to 30 years’ imprisonment. Al-
ford then appealed his case, claiming that his plea
was involuntary because it was principally motivated
by fear of the death penalty. His conviction was re-
versed on appeal. However, the U. S. Supreme Court
held that a guilty plea which represents a voluntary
and intelligent choice when considering the alterna-
tives available to a defendant is not ‘‘compelled’’
within the meaning of the Fifth Amendment just be-
cause it was entered to avoid the possibility of the
death penalty. (Alford had argued that his guilty plea
to a lesser charge violated the Fifth Amendment’s
prohibition that ‘’’No person . . . shall be compelled
in any criminal case to be a witness against himself.’’)
The Supreme Court reversed the court of appeals
and reinstated Alford’s conviction and sentence.
The term ‘‘Alford Plea’’ has come to apply to any
case in which the defendant tenders a guilty plea but
denies that he or she has in fact committed the
crime. The Alford plea is expressly prohibited in
some states and limitedly allowed in others. In feder-
al courts, the plea is conservatively permitted for cer-
tain defenses and under certain circumstances only.
Plea Bargaining in Federal Courts
The Federal Rules of CRIMINAL PROCEDURE
(F.R.Crim.P), and in specific, Rule 11(e), recognizes
and codifies the concept of plea agreements. Howev-
er, because of United States Sentencing Guideline
(USSG) provisions, the leeway permitted is very re-
strictive. Moreover, many federal offenses carry man-
datory sentences, with no room for plea bargaining.
Finally, statutes codifying many federal offenses ex-
pressly prohibit the application of plea arrange-
ments. (See ‘‘Sentencing and Sentencing Guide-
lines.’’)
Federal criminal practice is governed by Title 18
of the U.S. CODE, Part II (Criminal Procedure). Chap-
ter 221 of Part II addresses arraignments, pleas, and
trial. The U. S. Attorney’s Manual (USAM) contains
several provisions addressing plea agreements. For
example, Chapter 9-16.300 (Plea Agreements) states
that plea agreements should ‘‘honestly reflect the to-
tality and seriousness of the defendant’s conduct,’’
and any departure must be consistent with Sentenc-
ing Guideline provisions. The Justice Department’s
official policy is to stipulate only to those facts that
accurately represent the defendant’s conduct. Plea
agreements require the approval of the assistant at-
torney general if counts are being dismissed, if defen-
dant companies are being promised no further pros-
ecution, or it particular sentences are being
recommended (USAM 7-5.611).
Prohibitions and Restrictions
Aside from legal considerations as to the knowing
or voluntary nature of a plea, there are other restric-
tions or prohibitions on the opportunity to plea bar-
gain. In federal practice, U. S. attorneys may not
make plea agreements which prejudice civil or tax li-
ability without the express agreement of all affected
divisions or agencies (USAM 9-27.630). Moreover, no
attorney for the government may seek out, or threat-
en to seek, the death penalty solely for the purpose
of obtaining a more desirable negotiating position
for a plea arrangement (USAM 9-10.100). Attorneys
are also instructed not to consent to ‘‘Alford pleas’’
except in the most unusual circumstances and only
with the recommendation of assistant attorneys gen-
eral in the subject matter at issue. In any case where
a defendant has tendered a plea of guilty but denies
that he or she committed the offense, the attorney
for the government should make an offer of proof of
all facts known to the government to support the
conclusion that the defendant is in fact guilty (USAM
9-16.015). Similarly, U. S. attorneys are instructed to
require an explicit stipulation of all facts of a defen-
dant’s FRAUD against the United States (tax fraud,
Medicare/Medicaid fraud, etc.) when agreeing to
plea bargain (USAM 9-16.040).
State Provisions
Plea bargaining is not a creature of law: it is one
of legal practice. Therefore, state statutes do not
create the right to plea bargain, nor do they prohibit
it, with one exception. In 1975, Alaska’s attorney gen-
eral at the time, Avrum Gross, banned plea bargain-
ing in Alaska. Although the ban remains officially ‘‘in
the books,’’ charge bargaining has become fairly
common in most of Alaska’s courts. Nonetheless,
Alaska has not suffered the unmanageable caseloads
CRIMINAL LAW—PLEA BARGAINING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 367
or backlogged trials that were predicted when the
ban went into effect.
If plea bargaining appears at all in state statutes,
it is generally in the context of being prohibited or
restricted for certain matters or types of cases. For
example, many states have prohibited plea bargain-
ing in drunk driving cases, sex offender cases, or
those involving other crimes that place the public at
risk for repeat offenses or general harm. Another
common provision, found in a majority of states, is
a requirement that a prosecutor must inform a victim
or the victim’s survivors of any plea bargaining in a
case. In many states, victims’ views and comments
regarding both plea bargaining and sentencing are
factored into the ultimate decisions or determina-
tions.
At least one state (Alabama) has expressly ruled
that once a plea bargain is accepted, or there is detri-
mental reliance upon the agreement before the plea
is entered, it becomes binding and enforceable
under constitutional law (substantive due pro-
cess).Ex Parte Hon. Orson Johnson, (Alabama,
1995).
Additional Resources
‘‘The Core Concerns of Plea Bargaining Critics.’’ Douglas
D. Guidorizzi. Available at http://www.law.emory.edu/
ELJ/volumes/spg98/guido.html.
The Court TV Cradle-to-grave Legal Survival Guide. Little,
Brown and Company, 1995.
‘‘Criminal Procedure: an Overview.’’ Available athttp://
www.law.cornell.edu/topics/civil_procedure.html
‘‘Federal Rules of Criminal Procedure.’’ Available at http://
www.law.cornell.edu/topics/civil_procedure.html
‘‘Plea Bargains: Why and When They’re Made.’’ Available
at http://www.nolo.com/lawcenter/ency/category.
United States Attorneys Manual. (USAM. Office of the U.
S. Attorney General, Dept. of Justice. Available at http://
www.usdoj.gov/usao/eousa/foia_reading_room/usam/
title9/16mcrm.htm
U. S. Code, Title 18: Crimes and Criminal Procedure, Part
II: Procedure, Chapter 221: Arraignment, Pleas and
Trial. U. S. House of Representatives. Available at http:/
/caselaw.lp.findlaw.com/casecode/uscodes/18/parts/ii/
chapters/221.
CRIMINAL LAW—PLEA BARGAINING
368 GALE ENCYCLOPEDIA OF EVERYDAY LAW
CRIMINAL LAW
PROBATION AND PAROLE
Sections within this essay:
• Background
• Probation
- Definition
- History
- Intensive Supervised Probation (ISP)
- Shock Probation and Split Sentenc-
ing
- Revocation
• Parole
- Definition
- History
- Revocation
- Abolishment
• Additional Resources
Background
The use of PROBATION and PAROLE is governed in
part by competing philosophies, classicalism and
positivism. In short, classicalists believe that offend-
ers choose their actions and, therefore, in order to
prevent (or deter) future criminal acts, such individ-
uals should be punished. Conversely, positivists be-
lieve that individuals are forced into the choice of
committing crime through no fault of their own and,
therefore, the conditions and/or behaviors that
caused the action should be remedied, ultimately re-
sulting in rehabilitation of the offender.
Legislative acts and public sentiment further dic-
tate the application of probation and parole. There-
fore, universal and consistent definitions and appli-
cations of probation and parole are not available as
the methods of punishment and governing philoso-
phies have evolved and moved toward the twenty-
first century.
While these factors contribute to a lack of consis-
tency when dealing with probation and parole, the
primary obstacle to detailing specific state protocols
is that the practice of granting probation and/or pa-
role at the state level is dependent on the discretion-
ary powers of select individuals, such as the
PROSECUTOR, the judicial authority, and the parole
board, to name just a few. Information can be ob-
tained regarding state-level agencies governing pro-
bation and parole from the American Probation and
Parole Association (www.appa-net.org) or federal
level parole practices from the U. S. Parole Commis-
sion (www.usdoj.gov/uspc/rules_procedures/2-2.
pdf).
Probation
Definition
Probation is a court-imposed SANCTION that ‘‘re-
leases a convicted offender into the community
under a conditional suspended sentence.’’ This prac-
tice assumes that most offenders are not dangerous
and will respond well to treatment. In fact, the aver-
age PROBATIONER is a first time and/or non-violent of-
fender who, it is believed, will be best served by re-
maining in the community while serving out the
sentence.
History
Historically, probation does not involve
INCARCERATION, making it a front-end solution to ad-
dress the overcrowding problem in U. S. prisons and
GALE ENCYCLOPEDIA OF EVERYDAY LAW 369
jails. While the immediate goal of any probation pro-
gram is rehabilitation—in reality, it is more a necessi-
ty than an instrument. As a result, other programs
have been developed under the umbrella of commu-
nity corrections that utilize elements of conditional
release resulting in the expansion of probation-type
programs.
Probation developed as a result of the efforts of
philanthropist, John Augustus, to rehabilitate con-
victed offenders, although references to similar prac-
tices exist as early as 437-422 BC. It was favored be-
cause it allowed judicial authorities a great deal of
discretion when imposing sentences, thereby pro-
viding the opportunity to tailor sentences to a partic-
ular offender, in theory allowing for the greatest pos-
sibility of rehabilitation. While sentences of
probation vary widely across and within jurisdictions,
the maximum length of time that one can be under
supervision is 5 years (60 months).
The functions of probation are difficult to state de-
finitively. It is known that at its inception, John Au-
gustus’ goal was behavioral reform. This reflects the
sentencing goal of rehabilitation. Fundamentally, it
is believed that by allowing the offender to remain
in the community, the system is providing a second
chance. Further, support and guidance from proba-
tion officers may achieve the aim of guiding the of-
fender towards a law-abiding existence.
Given that probation is no longer limited to first-
time, non-violent offenders who pose minimal risk to
the community, the reality is significantly different.
Coupled with low confidence in the effectiveness of
rehabilitative success and a burgeoning offender
population, actual practices tend to be dictated by
conflicting goals on both an individual and adminis-
trative level. In an aggressive bid to prevent jail or
prison overcrowding, several alternatives to incarcer-
ation have developed. Some such programs enable
offenders traditionally incarcerated to be released
into the community, thereby forcing a shift in focus
from rehabilitation to control and supervision.
Intensive Supervised Probation (ISP)
ISP is a form of release into the community that
emphasizes close monitoring of convicted offenders
and imposes rigorous conditions on that release,
such as the following:
• Multiple weekly contacts w/officer
• Random and unannounced drug testing
• Stringent enforcement of conditions, i.e.,:
maintaining employment
• Required participation in treatment, educa-
tion programs, etc.
Individuals on ISP are those who most likely
should NOT be in the community. The restrictions
placed on them are often excessive and the level of
direct, face-to-face contact required is believed to sig-
nificantly deter, or at least interfere, with any ongo-
ing criminal activity.
Shock Probation and Split Sentencing
Shock probation/split sentencing is a sentence for
a term of years, but after 30, 60, or 90 days, the of-
fender is removed from jail or prison.
While these terms are used interchangeably, they
are actually two different activities. In shock proba-
tion, the offender is originally sentenced to jail, then
brought before the judge after 30, 60, or 90 days and
re-sentenced to probation (Ohio scheme). In split
sentencing, probation is part of the original sentence
requiring no additional appearance before the judge
(California scheme). Nonetheless, the terms refer to
the same outcome—some jail, some community.
Revocation
Since probation is a conditional release, it can be
revoked, or taken away, if the conditions governing
release are not met (technical violation) or if a new
crime is committed during the probationary period
(new offense).
Probation revocation is initiated by the probation
officer’s belief that a violation warranting revocation
has occurred. As a result of the 1973 case Gagnon v.
Scarpelli (411 U.S. 778), the Supreme Court decided
that where ‘‘liberty interests’’ are involved, proba-
tioners are entitled to retain certain due process
rights. Such rights include: (1) written notification of
the alleged violations; (2) preliminary (or PROBABLE
CAUSE) HEARING at which a judicial authority will de-
termine whether sufficient probable cause exists to
pursue the case; and (3) if warranted, a revocation
hearing.
If a revocation hearing is scheduled, probationers
have the right to TESTIFY in their own behalf, may
present witnesses, and may have an attorney pres-
ent. While the Gagnon court was vague regarding the
right to court appointed COUNSEL at a revocation
hearing, most jurisdictions do provide the right to
appointed counsel.
The standard of proof required at a revocation
hearing is a ‘‘preponderance of the evidence’’, lower
than that required at a criminal trial. Possible out-
CRIMINAL LAW—PROBATION AND PAROLE
370 GALE ENCYCLOPEDIA OF EVERYDAY LAW
comes include return to supervision, reprimand with
restoration to supervision, or revocation with
IMPRISONMENT.
Parole
Definition
Parole is the ‘‘conditional early release from pris-
on or jail, under supervision, after a portion of the
sentence has been served.’’ This practice assumes
that the offender successfully demonstrated confor-
mity to the rules and regulations of the prison envi-
ronment and shows an ability to conform to society’s
norms and laws.
History
The word, parole, derives from the French
‘‘parol’’ meaning ‘‘word of honor’’ and references
prisoners of war promising not to take up arms in
current conflict if released. How that concept came
to apply to the early release of convicted, often vio-
lent, offenders is less clear. The first documented of-
ficial use of early release from prison in the United
States is credited to Samuel G. Howe in Boston
(1847), but prior to that, other programs using par-
dons achieved basically the same outcome. In fact,
as late as 1938, parole was simply a conditional
PARDON in many states.
Alexander Maconochie (England) ran the Norfolk
Island prison. During his tenure, he instituted a sys-
tem whereby inmates would be punished for the
past and trained for the future. He believed that in-
mates could be rehabilitated so he implemented an
open-ended sentencing structure where inmates had
to ‘‘earn’’ their release by passing through three
stages, each stage increased their liberty and respon-
sibilities. Inmates had an open time frame in which
to earn the next level. Compliance advanced them;
infractions resulted in a return to the previous stage,
thereby lengthening the sentence. The open-ended
sentences (today known as indeterminate sentenc-
ing) allowed the administration to ensure that when
finally released, an offender’s behavior had been suc-
cessfully reformed. Eventually, Maconochie was re-
moved from his position under criticism that his pro-
gram ‘‘coddled’’ criminals.
At about the same time, Sir Walter Crofton was de-
veloping a similar program in Ireland using ‘‘tickets
of leave’’. The ‘‘Irish System’’ as it came to be known,
employed a similar practice of allowing inmates to
earn credits towards early release. However, once
the ‘‘ticket of leave’’ was achieved, release from
CUSTODY was conditional. The releasees were super-
vised in the community by either law enforcement
or civilian personnel who were required to secure
employment and to conduct home visits. These ‘‘su-
pervisors’’ represented the forerunner to today’s pa-
role officer.
In the United States, Zebulon Brockaway (Super-
intendent) employed elements from both the Irish
and Great Britain models in managing the Elmira Re-
formatory during the 1870s. Brockaway is credited
with the passage of the first indeterminate sentenc-
ing law in the United States as well as introducing the
first good time system to reduce inmates’ sentences.
However, releasing the offenders was only part of the
problem and initially, the greatest challenge was pro-
viding adequate supervision once release had been
granted.
By 1913, it was clear some independent body was
required to supervise inmates in the community and
by 1930, Congress formally established a United
States Board of Parole. It appeared, at least for
awhile, that initiatives and programs were develop-
ing that could make parole a viable and useful tool
of the criminal justice system. But unfortunate tim-
ing contributed ultimately to its downfall.
In 1929, the Great Depression hit the United
States. An immediate result was a sharp increase in
prison populations. However, the high cost of main-
taining prisons as well as a lack of available personnel
to staff them made new construction prohibitive and
contributed to the popularity of parole. While allevia-
tion of the overcrowding problem is often cited as a
secondary (or latent) goal, the reality is that as a
back-end solution, parole is vital to the maintenance
of the correctional system.
With the onset of the twentieth century, philoso-
phers began to examine the social and psychological
aspects of criminal behavior. This heralded a shift
from classicalist thinking towards positivism. Under
positivism, actions are believed to be caused by
forces beyond one’s control (such forces could be
psychological, biological, or sociological in origin).
Therefore, parolees were now viewed as ‘‘sick’’ and
the parole department was charged with the respon-
sibility of ‘‘fixing’’ them.
Positivism is consistent with a less punitive ap-
proach to sentencing and generally involves an inde-
terminate sentencing structure allowing for the pos-
sibility of early release if the offender demonstrates
that they have been successfully rehabilitated. As
CRIMINAL LAW—PROBATION AND PAROLE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 371
such, it fit well with the Elmira system and the timing
afforded officials the opportunity to use parole as a
means to relieve the overcrowded conditions that
had developed during the depression.
The fact that parole involves some incarceration
suggests that the average parolee has committed a
more serious crime than the average probationer
and, hence, poses a greater risk to the community.
Therefore, primary goals of parole must include
crime deterrence and offender control. And given
that most offenders will eventually return to the
community, a rival goal is reintegration, or the facili-
tation of an offender’s transition from incarceration
to freedom.
Unfortunately, it appeared during the 1980s that
parole was failing. Street crime rates during this peri-
od skyrocketed and in many cases, the crimes were
perpetrated by individuals who were released into
the community prior to the official expiration of their
sentence. This reality led to the development of
penal philosophies espousing ‘‘tough on crime’’ ap-
proaches and demanding ‘‘truth in sentencing’’.
Such philosophies warned criminals, ‘‘do the crime,
do the time’’ and resulted in radical changes to sen-
tencing practices across the country that indicated a
return to a more punitive sentencing structure.
Revocation
Since parole is a conditional release, it can be re-
voked or taken away, if the conditions governing re-
lease are not met (technical violation) or if a new
crime is committed during the probationary period
(new offense). In this manner, it is similar to proba-
tion; however, it differs in that probation is governed
by judicial decisions whereas parole is governed by
administrative procedures. As a result of the adminis-
trative nature of parole, the revocation process is so
varied among the jurisdictions.
In large part, however, most minor infractions are
dealt with by the parole officer and may not necessi-
tate involvement of the parole board. Some jurisdic-
tions empower the parole officer to immediately
take a parolee into custody for 24 (New York) to 48
hours (Pennsylvania) for purposes of obtaining an
ARREST WARRANT. This practice is typically employed
when the offender represents an immediate threat
to public safety.
With respect to the legal protections afforded to
parolees, the first case to explore this issue was Mor-
rissey v. Brewer (1972). The Morrissey case explored
the extension of due process rights of (1) written no-
tice to parolee prior to general revocation proceed-
ing; (2) identification of the violations being pres-
ented and any EVIDENCE being used to prove that the
violation took place; (3) the right of the parolee to
confront and cross-examine accusers (subject to ex-
ceptions) and (4) a written explanation for the deci-
sions regarding the revocation of the parole and
what evidence was employed in making that deci-
sion. Perhaps the greatest contribution of the Mor-
rissey case was the creation of a two-stage process
wherein first, probable cause that violations had oc-
curred had to exist in order to go to the second
stage, which was the actual revocation hearing.
Interestingly, the Supreme Court did not choose
to create a bright line rule for the right to court-
appointed counsel at a revocation hearing. For the
most part, however, most jurisdictions have followed
the decision in Mempa v. Rhay (1967). While this
case specifically dealt with the rights of probationers,
it has been applied recently to parolees as well. Basi-
cally, the Supreme Court wrote that ‘‘any indigent is
entitled at every stage of a criminal proceeding to be
represented by court-appointed counsel, where sub-
stantial rights of a criminal ACCUSED may be affected.’’
In sum, the Supreme Court considered the liberty in-
terests of the probationers and decided that a proba-
tion revocation hearing constituted a ‘‘critical stage’’
which dictated adherence to due process protec-
tions. This rationale has consistently been extended
to include parole revocation hearings as well.
Abolishment
As of 2001, 15 states (Arizona, California, Dela-
ware, Illinois, Indiana, Kansas, Maine, Minnesota,
Mississippi, Ohio, Oregon, New Mexico, North Caro-
lina, Virginia and Washington) and the Federal gov-
ernment have eliminated parole programs in lieu of
a determinate model of sentencing reflective of a
more retributive approach to punishment. (New
York Gov. George Pataki proposed making New York
the sixteenth state)
Such an action may seem warranted given the ap-
parent inability of the system to guarantee the pro-
tection of the citizens—but the end result is predict-
able. Overcrowding still represents the greatest
challenge to the correctional industry. In fact, three
states (Connecticut, Colorado, and Florida) reinsti-
tuted the parole boards after eliminating them due
to the unforeseen overcrowding problems. The reali-
ty is that removal of parole ultimately leads simply to
a shift in power from parole boards to prosecutors,
in that the option most often exercised in states with-
out parole, is probation (see above).
CRIMINAL LAW—PROBATION AND PAROLE
372 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Additional Resources
History of the Federal Parole System, Part I (1910-1972)
Hoffman, Peter, Federal Probation, Sept. 1997, pp. 23-
31.
History of the Federal Parole System, Part II (1973-1997)
Hoffman, Peter, Federal Probation, Dec. 1997, pp. 49-
57.
Probation and Parole in the United States. Bureau of Jus-
tice Statistics, 2000.
Probation and Parole 7th ed., Abadinsky, Howard, Pren-
tice Hall, 2000.
‘‘Probation in the United States: Practices and Challenges.’’
Petersilia, Joan, National Institute of Justice Journal,
Sept. 1997, pp. 2-8.
Probation, Parole, and Community Corrections, 3rd Edi-
tion. 3rd ed., Dean J. Champion, Dean J., Prentice Hall,
1999.
Organizations
American Probation and Parole Association
(APPA)
2760 Research Park Drive
Lexington, KY 40511-8410 USA
Phone: (859) 244-8207
Fax: (859) 244-8001
E-Mail: appa@csg. org
U. S. Parole Commission
5550 Friendship Blvd., Suite 420
Chevy Chase, MD 20815-7286 USA
CRIMINAL LAW—PROBATION AND PAROLE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 373
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CRIMINAL LAW
RIGHT TO COUNSEL
Sections within this essay:
• Background
• What the Sixth Amendment Guarantees
• The Miranda Case
• Invoking the Right
• Judicial Proceedings Before Trial
• Custodial Interrogation
• Lineups and Other Identification Situations
• Post-Conviction Proceedings
• Adequate Representation or Ineffective As-
sistance of Counsel
• Additional Resources
Background
During the colonial period and the early years of
the Republic the practice in the United States was
varied with respect to providing COUNSEL to suspects
in criminal cases. The practice varied from the En-
glish method, where no counsel was provided to de-
fendants of FELONY charges, but counsel was made
available for defendants of MISDEMEANOR charges.
Rules in a few states allowed for the appointment of
counsel where defendants could not afford to retain
a lawyer. The Sixth Amendment to the U.S. Constitu-
tion states: ‘‘in all criminal prosecutions, the ACCUSED
shall enjoy the right... to have the assistance of coun-
sel for his defense.’’ At the time the Sixth Amend-
ment was ratified, Congress enacted two laws that
appeared to indicate an understanding that the Sixth
Amendment guarantee was limited: counsel would
not be denied to those who wished for and could af-
ford a lawyer. Much later—in 1930s—the Supreme
Court began to expand the clause to its present
scope.
Police officers ask questions of victims, witnesses,
and suspects. If individuals feel that they are suspects
in a criminal investigation or even that they could
later be considered a suspect, they should speak with
a lawyer before they speak with law enforcement offi-
cers. What they say to their lawyer is confidential and
cannot be used against them. However, what they
say to the police can be used against them, even if
there is no recorded or written record of that conver-
sation.
Individuals can always inform the police officer
that they wish to speak with a lawyer before they an-
swer any questions. If they are in CUSTODY (have
been arrested or otherwise detained), the police
must stop their questioning and they will be given an
opportunity to speak with a lawyer. The police may
return and begin to ask them questions again after
a reasonable amount of time. If they have not yet
spoken with a lawyer when the police return to ques-
tion them, they may continue to refuse to answer any
questions until they have obtained legal assistance.
What the Sixth Amendment Guarantees
The Sixth Amendment guarantees the right to
legal counsel at all significant stages of a criminal pro-
ceeding. This right is so important that there is an as-
sociated right given to people who are unable to pay
for legal assistance to have counsel appointed and
paid for by the government. The federal criminal jus-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 375
tice system and all states have procedures for ap-
pointing counsel for indigent defendants. The Sixth
Amendment right to counsel has been extended to
the following:
• The interrogation phase of a criminal investi-
gation
• The trial itself
• Sentencing
• At least an initial appeal of any CONVICTION
If individuals are arrested in the United States they
have a range of rights that give them certain protec-
tions, even if they are not a citizen of the United
States. These rights include the following:
• A trial by a jury (in most cases)
• The jury to hear all of the witnesses and see
all of the EVIDENCE
• Presence at the trial and while the jury is
HEARING the case
• The opportunity to see, hear, and confront
the witnesses presenting the case against
them
• The opportunity to call witnesses and to
have the court issue subpoenas to compel
the witnesses to appear
• The chance to TESTIFY themselves should
they choose to do so
• The option to refuse to testify
• Access to a criminal defense lawyer. If indi-
viduals cannot afford to hire their own crimi-
nal defense lawyer, a PUBLIC DEFENDER will
represent them. This lawyer can act on their
behalf before, during, and after the trial
• The right to cross-examine the witnesses giv-
ing TESTIMONY against them
• The right to compel the state to prove its
case against them beyond a reasonable
doubt.
A judge will appoint an attorney for an indigent
DEFENDANT; this attorney will be compensated at gov-
ernment expense if at the conclusion of the case the
defendant could possibly be imprisoned for a period
of more than six months. In reality, judges almost al-
ways appoint attorneys for indigents in practically
every case in which a jail sentence is a possibility—
regardless of how long the sentence may be. Gener-
ally, a judge will appoint the attorney for an indigent
defendant at the defendant’s first court appearance;
for most defendants, the first court appearance is an
arraignment or a hearing to set BAIL.
The Miranda Case
In 1966, the United States Supreme Court deci-
sion in Miranda v. Arizona ushered in a period of
court-imposed restraints on the government’s ability
to interrogate suspects it takes into custody. This fa-
mous decision focused on Fifth Amendment protec-
tions against SELF-INCRIMINATION, but it also spoke to
the right to counsel. One of the most important re-
straints enumerated in the Miranda decision is the
prohibition against the government’s interrogation
of suspects or witnesses after the suspect has in-
voked the right to counsel. Here’s what the Miranda
warnings generally say:
• You have the right to remain silent.
• Anything you say can be used against you in
a court of law.
• You have the right to have an attorney pres-
ent now and during any future questioning.
The right to have counsel present at a custo-
dial interrogation is necessary to protect the
Fifth Amendment PRIVILEGE AGAINST
SELF-INCRIMINATION. A suspect detained for
interrogation must be clearly informed that
he has the right to consult with a lawyer and
to have the lawyer with him during interro-
gation.
• If you cannot afford an attorney, one will be
appointed to you free of charge if you wish.
The Supreme Court found it necessary to
mandate notice to defendants about their
constitutional right to consult with an attor-
ney. They went one step further and de-
clared that if a defendant is poor, the gov-
ernment must appoint a lawyer to represent
him.
The Court further instructed the police that if a
suspect says he wants a lawyer, the police must cease
any interrogation or questioning until an attorney is
present. Further, the police must give the suspect an
opportunity to confer with his attorney and to have
the attorney present during any subsequent ques-
tioning.
Individuals need to remember that they can be ar-
rested without being advised of their Miranda Rights.
CRIMINAL LAW—RIGHT TO COUNSEL
376 GALE ENCYCLOPEDIA OF EVERYDAY LAW
The Miranda rights do not protect individuals from
being arrested, but they help suspects keep from un-
wittingly incriminating themselves during police
questioning.
All the police need to arrest a person is PROBABLE
CAUSE to believe a suspect has committed a crime.
Probable cause is merely an adequate reason based
on the facts or events. Police are required to read or
give suspects their Miranda warnings only before
questioning a suspect. Failing to follow the Miranda
rules may cause suspects’ statements to be
INADMISSIBLE in court; the original arrest may still be
perfectly legal and valid.
Police are allowed to ask certain questions with-
out reading the Miranda rights, including the follow-
ing:
• Name
• Address
• Date of birth
• Social Security number
• Or other questions necessary to establishing
a person’s identity.
Police can also give alcohol and drug tests without
Miranda warnings, but individuals being tested may
refuse to answer questions.
Invoking the Right
Because the invocation of Miranda rights, particu-
larly the right to counsel, has created significant bur-
dens on law enforcement’s ability to conduct effec-
tive interrogations, several recent court decisions
have begun to limit a custodial suspect’s ability to in-
voke that right. Specifically, the Court wants to en-
sure that a suspect’s invocation of rights is not frivo-
lous. To do this, courts require that suspects invoke
their right to counsel be made unequivocally, as well
as in a timely manner.
If individuals are arrested or questioned, the bur-
den is on them to invoke their right to counsel in a
clear and unequivocal manner. They should receive
notice that they have the right to an attorney, but law
enforcement is not required to ask them whether
they want an attorney, nor do they need to ask them
clarifying questions if they are unclear in their re-
quest for an attorney. Not only must invoking the
right to counsel be unequivocal, but courts also have
begun to insist that invocations of the Miranda right
to counsel be made in a timely manner. Individuals
should not wait to be asked if they want a lawyer, nor
should they expect the police to read them Miranda
warnings before they ask for counsel.
Judicial Proceedings Before Trial
Generally, defendants are entitled to counsel
from the time of their arraignment until the begin-
ning of their trial. This is because the defendant’s
need for consultation, investigation, and preparation
are critically important for a fair trial. The courts have
gradually expanded this idea to the point that there
is a legal concept of ‘‘a critical stage in a criminal pro-
ceeding’’ that indicates when a defendant must be
represented by counsel.
Custodial Interrogation
Defendants who have been taken into custody
and have invoked their Sixth Amendment right to
counsel with respect to the offense for which they
are being prosecuted may not later waive that right.
However, defendants may waive their right under Mi-
randa not to be questioned about unrelated and un-
charged offenses.
What happens if the police violate the right to
counsel? The remedy for violation of the Sixth
Amendment rule is that any statements obtained
from defendants under these circumstances will be
excluded from the evidence at trial. There is one im-
portant exception to the Sixth Amendment
EXCLUSIONARY RULE: evidence obtained from defen-
dants held in custody that violates the Sixth Amend-
ment may be used for the sole purpose of impeach-
ing the defendants’ testimony at trial.
Lineups and Other Identification
Situations
Lineups are considered to be ‘‘critical stage’’ and
the prosecution may not admit into evidence in-
court identification of defendants based on out-of-
court lineups or show-ups if they were obtained
without the presence of defendant’s counsel. Courts
have found that a defendant’s counsel is necessary
at a LINEUP because the lineup stage is filled with
much potential for both intentional and unintention-
al errors. Without the defendant’s attorney present
at the lineup, these errors may not be discovered and
remedied prior to trial.
CRIMINAL LAW—RIGHT TO COUNSEL
GALE ENCYCLOPEDIA OF EVERYDAY LAW 377
This rule does not apply to other methods of ob-
taining identification and other evidentiary material
relating to the defendant, including the following:
• Blood samples
• DNA samples
• Handwriting samples
• Vocal samples
In these cases, there is far less chance that the ab-
sence of counsel at the time the evidence is obtained
from the defendant might prevent the defendant
from getting a fair trial.
The Sixth Amendment does not guarantee the
presence of the defendant’s counsel at a pretrial pro-
ceeding unless the physical presence of the defen-
dant is involved. Furthermore, the defendant’s pres-
ence must be required at a trial-like confrontation at
which the defendant requires the advice and assis-
tance of counsel.
Post-Conviction Proceedings
In a criminal trial, the law requires a lawyer for de-
fendants to be present at the sentencing stage of the
trial. If individuals are convicted of a crime and are
placed on PROBATION, they still have the right to
counsel at a later hearing on the revocation of their
probation and imposition of the deferred sentence.
Due process and EQUAL PROTECTION rather than Sixth
Amendment rights, however, will apply in the follow-
ing three post-trial hearings:
1. For granting PAROLE or probation
2. For revoking parole when parole was im-
posed after sentencing
3. For prison disciplinary hearings
Adequate Representation or Ineffective
Assistance of Counsel
Indigent defendants who are represented by ap-
pointed lawyers and defendants who can afford to
hire their own attorneys are both entitled to ade-
quate representation. But ‘‘adequate representa-
tion’’ does not mean perfect representation. Howev-
er, an incompetent or negligent lawyer can so poorly
represent a client that the court is justified in throw-
ing out a guilty verdict based on the attorney’s in-
competence.
If a defendant’s lawyer is ineffective at trial and on
direct appeal, the defendant’s Sixth Amendment
right to a fair trial has been violated. In analyzing
claims that a defendant’s lawyer was ineffective, the
principal goal is to determine whether the lawyer’s
conduct so undermined the functioning of the judi-
cial process that the trial cannot be relied upon as
having produced a just result. Proving this requires
two steps:
1. The defendant must show that his own
lawyer’s job performance was deficient.
The defendant must prove that his coun-
sel made errors so serious that the lawyer
did not function as the counsel guaranteed
the defendant by the Sixth Amendment.
2. The defendant must show that the defi-
cient performance unfairly prejudiced the
defense. The defendant must show that
his lawyer’s errors were so serious as to
wholly deprive the defendant of a fair trial.
Unless a defendant proves both steps, the conviction
or sentence cannot be said to result from a break-
down in the judicial process such that the result is
unreliable. When courts review a lawyer’s advocacy
of a defendant, they are deferential. Courts are
bound by a strong presumption that any given law-
yer’s conduct falls within the range of reasonable
professional assistance.
Additional Resources
‘‘Consumer’s Guide to Legal Help on the Internet’’. Ameri-
can Bar Association, 2002. Available at http://
www.abanet.org/legalservices/public.html
Gideon’s Trumpet. Lewis, Anthony, Vintage Books, 1989.
Miranda v. Arizona: The Rights of the Accused (Famous
Trials). Hogrogian, John G., Lucent Books, 1999.
The Right to the Assistance of Counsel: A Reference Guide
to the United States. Tomkovicz, James J. Greenwood
House, 2002.
The Sixth Amendment in Modern American Jurispru-
dence: A Critical Perspective (Contributions in Legal
Studies). Garcia, Alfredo, Greenwood Publishing
Group, 1992.
Organizations
Federal Defender’s Association (FDA)
8530 Wilshire Blvd, Suite 404
Beverly Hills, CA 90211 USA
Fax: (310) 397-1001
E-Mail: defense@afda.org
CRIMINAL LAW—RIGHT TO COUNSEL
378 GALE ENCYCLOPEDIA OF EVERYDAY LAW
URL: http://www.afda.org/
Legal Services Corporation (LSC)
750 First Street NE, Tenth Floor
Washington, DC 20002-4250 USA
Phone: (202) 336-8800
Fax: (202) 336-8959
E-Mail: info@lsc.gov
URL: http://www.lsc.gov/
National Association of Criminal Defense
Lawyers (NACDL)
1025 Connecticut Ave. NW, Suite 901
Washington, DC 20036 USA
Phone: (202) 872-8600
Fax: (202) 872-8690
E-Mail: assist@nacdl.org
URL: www.nacdl.org
National Legal Aid & Defender Association
(NLADA)
1625 K Street NW, Suite 800
Washington, DC 20006-1604 USA
Phone: (202) 452-0620
Fax: (202) 872-103
E-Mail: info@nlada.org
URL: http://www.nlada.org/
CRIMINAL LAW—RIGHT TO COUNSEL
GALE ENCYCLOPEDIA OF EVERYDAY LAW 379
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CRIMINAL LAW
SEARCH AND SEIZURE
Sections within this essay:
• Background
• The Text of the Fourth Amendment and
Case Law Interpreting It
- The Text of the Fourth Amendment
- When the Fourth Amendment Ap-
plies
- How the Fourth Amendment Ap-
plies: The Warrant Requirement
- How the Fourth Amendment Ap-
plies: The Reasonableness Re-
quirement
- How the Fourth Amendment Ap-
plies: The Exclusionary Rule
- State Court Decisions Interpreting
State Constitutional Provisions
Governing Search and Seizure
• Additional Resources
Background
SEARCH AND SEIZURE refers to the methods used by
law enforcement to investigate crimes, track down
EVIDENCE, question witnesses, and arrest suspects. It
also refers to the legal rules governing these meth-
ods. At the federal level these rules are set forth in
the Fourth Amendment to the U. S. Constitution, the
Federal Rules of CRIMINAL PROCEDURE, and Title 18
of the United States Code, sections 2231 et seq. The
rules and statutes reference each other, and both are
designed to provide greater detail for areas left silent
by the Constitution. In addition, each state has its
own set of applicable statutes, rules of procedure,
and constitutional provisions. But the starting point
in understanding any of these rules is the Fourth
Amendment, since it sets forth the minimum amount
of protection that both the state and federal govern-
ment must provide against searches and seizures.
Under the Due Process and EQUAL PROTECTION
Clauses of the Fourteenth Amendment, the U. S. Su-
preme Court has ruled that states may provide their
citizens with more protection against searches and
seizures but not less.
The American Revolution was fought in part to
create a system of government that would operate
within the rule of law. The rule of law is represented
by the idea that the United States is a nation of laws
and not of men and women. Under the rule of law,
the actions of government officials are limited by the
legal principles, rules, and other norms that make up
the U. S. legal system and not by the arbitrary or ca-
pricious whim of an individual official. Violating
these legal norms in the course of official conduct
can transform a law enforcer into a law breaker.
The Framers drafted the Fourth Amendment in
response to their colonial experience with British of-
ficials whose discretion in collecting revenues for the
Crown often went unchecked. Local magistrates
were allowed to issue general search warrants to Brit-
ish tax collectors upon mere suspicion that a colonist
was not fully complying with the tax code. Magis-
trates were not authorized to question the source or
strength of a tax collector’s suspicion, and, once is-
sued, general warrants permitted blanket, door-to-
door searches of entire neighborhoods without re-
gard to person, place, or time.
The WRIT of assistance was a particularly loath-
some form of general WARRANT. This writ derived its
GALE ENCYCLOPEDIA OF EVERYDAY LAW 381
name from the power of British authorities to com-
pel local peace officers and colonial residents to ‘‘as-
sist’’ in executing a particular search. A writ of assis-
tance lasted for the life of the king or queen under
whom it was issued and could be enforced by any
British law enforcement officer, including customs
officials who often relied on them as long-term hunt-
ing licenses against suspected smugglers.
Colonial opposition to general warrants was per-
vasive. In Paxton’s case, 1 Quincy 51 (Mass. 1761),
James Otis appeared on behalf of the colonists who
opposed issuance of another writ, arguing that be-
fore a warrant is valid it must be ‘‘directed to special
officers and to search certain houses’’ for particular
goods and may only be granted ‘‘upon oath made’’
by a government official ‘‘that he suspects such
goods to be concealed in those very places he de-
sires to search’’ (quoted in Illinois v. Krull, 480 U.S.
340, 107 S.Ct. 1160, 94 L.Ed.2d 364 [1987]). John
Adams cited Otis’ argument against the writs ‘‘as the
commencement of the controversy between Great
Britain and America’’ (see WEAL, vol. 5, p. 80).
Ratified by the states in 1791, the Fourth Amend-
ment put an end to writs of assistance by creating a
constitutional buffer between U. S. citizens and the
often intimidating power of law enforcement. It has
three components: first, the Fourth Amendment es-
tablishes a privacy interest by recognizing the right
of every citizen to be ‘‘secure in their persons, hous-
es, papers, and effects’’; second, it protects this pri-
vacy interest by prohibiting searches and seizures
that are not authorized by a warrant based on ‘‘prob-
able cause’’ or that are otherwise ‘‘unreasonable’’;
and third, for searches requiring a warrant the
Fourth Amendment states that the warrant must de-
scribe with particularity ‘‘the place to be searched,
and the persons or things to be seized’’ and be sup-
ported by ‘‘oath or affirmation’’ of the officer re-
questing its issuance.
The Text of the Fourth Amendment and
Case Law Interpreting It
Although RATIFICATION of the Fourth Amendment
answered any lingering doubts about the validity of
the writs of assistance in the United States, the text
of the Fourth Amendment raised questions of its
own about the meaning of the terms ‘‘unreason-
able,’’ ‘‘search or seizure,’’ ‘‘warrant,’’ ‘‘particulari-
ty,’’ ‘‘oath or affirmation,’’ and ‘‘probable cause,’’ not
to mention other questions about the scope of such
terms as ‘‘houses, papers, and effects.’’ The U. S. Su-
preme Court, lower federal courts, and state courts
have spent more than 200 years grappling with these
questions and continue to do so as new cases come
before them.
The Text of the Fourth Amendment
The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreason-
able 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.
When the Fourth Amendment Applies
Like the rest of the BILL OF RIGHTS, the Fourth
Amendment originally only applied in federal court.
However, in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct.
1359, 93 L.Ed. 1782 (1949), the U. S. Supreme Court
ruled that the rights guaranteed by the text of the
Fourth Amendment (sans the EXCLUSIONARY RULE to
be discussed below) apply equally in state courts via
the Fourteenth Amendment, which guarantees to
the citizen of every state the right to due process and
equal protection of the laws. The process by which
the Supreme Court has made certain fundamental
liberties protected by the Bill of Rights applicable to
the states is known as the doctrine of incorporation.
Not every search and seizure that is scrutinized in
state and federal court raises a Fourth Amendment
issue. The Fourth Amendment only protects against
searches and seizures conducted by the government
or pursuant to governmental direction. Surveillance
and investigatory actions taken by strictly private per-
sons, such as private investigators, suspicious
spouses, or nosey neighbors, are not governed by
the Fourth Amendment. However, Fourth Amend-
ment concerns do arise when those same actions are
taken by a law enforcement official or a private per-
son working in conjunction with law enforcement.
The Fourth Amendment will not apply even
against governmental action unless defendants first
establish that they had a reasonable expectation of
privacy in the place to be searched or the thing to be
seized. The Supreme Court has explained that what
‘‘a person knowingly exposes to the public, even in
his own home or office, is not a subject of Fourth
Amendment protection . . .’’ But what he seeks to
preserve as private, even in an area accessible to the
public, may be constitutionally protected (see Katz
v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
[1967]).
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382 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Applying this principle, the Supreme Court has
ruled that individuals generally maintain a reason-
able expectation of privacy in their bodies, clothing,
and personal belongings. Homeowners possess a
privacy interest that extends inside their homes and
in the curtilage immediately surrounding the outside
of their homes, but not in the ‘‘open fields’’ and
‘‘wooded areas’’ extending beyond the curtilage (see
Hester v. U.S., 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898
[1924]). A business owner’s expectation of privacy in
commercial property is less the than privacy interest
afforded to a private homeowner, and is particularly
attenuated in commercial property used in ‘‘closely
regulated’’ industries (i.e., airports, railroads, restau-
rants, and liquor establishments), where business
premises may be subject to regular administrative
searches by state or federal agencies for the purpose
of determining compliance with health, safety, or se-
curity regulations. Automobile owners have a reason-
able expectation of privacy in the cars they own and
drive, but the expectation of privacy is less than a
homeowner’s privacy interest in their homes but
greater than a business owner’s privacy interest in
their closely regulated business premises.
No expectation of privacy is maintained for prop-
erty and personal effects held open to the public.
Things visible in ‘‘plain view’’ for a person of ordinary
and unenhanced vision are entitled to no expecta-
tion of privacy and thus no Fourth Amendment pro-
tection. Items lying in someone’s backseat, growing
in someone’s outdoor garden, or discarded in some-
one’s curb-side garbage all fall within this category.
However, items seen only through enhanced surveil-
lance, such as through high-powered or telescopic
lenses, may be subject to the strictures of the Fourth
Amendment. Public records, published phone num-
bers, and other matters readily accessible to the gen-
eral public enjoy no expectation of privacy. Similarly,
the Supreme Court has said that individuals do not
possess an expectation of privacy in their personal
characteristics (see U. S. v. Dionisio, 410 U.S. 1, 93
S.Ct. 764, 35 L.Ed.2d 67 [1973]). Thus, the police may
require individuals to give handwriting and voice ex-
emplars, as well as hair, blood, DNA, and fingerprint
samples without complying with the Fourth Amend-
ment’s requirements.
Finally, to raise a Fourth Amendment objection to
a particular search or seizure, a person must have
‘‘standing’’ to do so. Standing in this context means
that the rights guaranteed by the Fourth Amendment
are personal and may not be asserted on behalf of
others. Thus, a passenger may not generally object
to a police search of the owner’s car and a house-
guest may not generally object to a search of the
homeowner’s premises. These rules can become
murky, however, as when a houseguest is actually liv-
ing with the homeowner or owns things stored on
the owner’s premises.
How the Fourth Amendment Applies: The
Warrant Requirement
Once the Fourth Amendment applies to a particu-
lar search or seizure, the next question is under what
circumstances is a warrant required. The Supreme
Court has ruled that the Constitution expresses a
preference for searches, seizures, and arrests con-
ducted pursuant to a lawfully executed warrant (see
Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57
L.Ed.2d 290 [1978]). A warrant is a written order
signed by a court authorizing a law-enforcement offi-
cer to conduct a search, seizure, or arrest. Searches,
seizures, and arrests performed without a valid war-
rant are deemed presumptively invalid, and any evi-
dence seized without a warrant will be suppressed
unless a court finds that the search was reasonable
under the circumstances.
An application for a warrant must be supported by
a sworn, detailed statement made by a law enforce-
ment officer appearing before a neutral judge or
MAGISTRATE. The Supreme Court has said that proba-
ble cause exists when the facts and circumstances
within the police officer’s knowledge provide a rea-
sonably trustworthy basis for a man of reasonable
caution to believe that a criminal offense has been
committed or is about to take place (see Carroll v.
U. S., 267 U. S. 132, 45 S.Ct. 280, 69 L.Ed. 543 [1925]).
Probable cause can be established by out-of-court
statements made by reliable police informants, even
though those statements cannot be tested by the
magistrate. However, probable cause will not lie
where the only evidence of criminal activity is an offi-
cer’s affirmation of suspicion or belief (see Aguilar v.
Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
[1964]).
Nor will probable cause lie unless the facts sup-
porting the warrant are sworn by the officer as true
to the best of his or her knowledge. The officer’s
oath can be written or oral, but the officer must typi-
cally swear that no knowing or intentionally false
statement has been submitted in support of the war-
rant and that no statement has been made in reckless
disregard of the truth. Inaccuracies due to an offi-
cer’s NEGLIGENCE or innocent omission do not jeop-
ardize a warrant’s validity.
CRIMINAL LAW—SEARCH AND SEIZURE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 383
The Fourth Amendment requires not only that
warrants be supported by probable cause offered by
a sworn police officer, but it also requires that a war-
rant ‘‘particularly’’ describe the person or place to be
searched or seized. Warrants must provide enough
detail so that an officer with the warrant can ascertain
with reasonable effort the persons and places identi-
fied in the warrant. For most residences a street ad-
dress usually satisfies the particularity requirement,
unless the warrant designates an apartment com-
plex, hotel, or other multiple-unit building, in which
case the warrant must describe the specific sub-unit
to be searched. Warrants must describe individuals
with sufficient particularity so that a person of aver-
age intelligence can distinguish them from others in
the general population.
The magistrate before whom an officer applies for
a warrant must be neutral and detached. This qualifi-
cation means that the magistrate must be IMPARTIAL
and not a member of the ‘‘competitive enterprise’’
of law enforcement (see California v. Acevedo, 500
U. S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 [1991]).
Thus, police officers, prosecutors, and attorney gen-
erals are disqualified from becoming a magistrate.
States vary as to the requirements that candidates
must possess before they will be considered quali-
fied for the job of magistrate. Some states require
that magistrates have an attorney’s license, while
others require only that their magistrates be literate.
How the Fourth Amendment Applies: The
Reasonableness Requirement
Not every search, seizure, or arrest must be made
pursuant to a lawfully executed warrant. The Su-
preme Court has ruled that warrantless police con-
duct may comply with the Fourth Amendment so
long as it is reasonable under the circumstances. The
exceptions made to the Fourth Amendment’s war-
rant requirement reflect the Court’s reluctance to
unduly impede the job of law enforcement officials.
The Court has attempted to strike a balance between
the practical realities of daily police work and the pri-
vacy and freedom interests of the public. Always re-
quiring police officers to take the time to complete
a warrant application and locate and appear before
a judge could result in the destruction of evidence,
the disappearance of suspects and witnesses, or
both. The circumstances under which a warrantless
search, seizure, or arrest is deemed reasonable gen-
erally fall within seven categories.
First, no warrant is required for a FELONY arrest in
a public place, even if the arresting officer had ample
time to procure a warrant, so long as the officer pos-
sessed probable cause that the suspect committed
the crime. Felony arrests in places not open to the
public generally do require a warrant, unless the offi-
cer is in ‘‘hot pursuit’’ of a fleeing FELON (see Warden
v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782
[1967]). The Fourth Amendment also allows war-
rantless arrests for misdemeanors committed in an
officer’s presence.
Second, no warrant is required for searches inci-
dent to lawful arrest. If a police officer has made a
lawful arrest, with or without a warrant, the Fourth
Amendment permits the officer to conduct a search
of the suspect’s person, clothing, and all of the areas
within the suspect’s immediate reach. This kind of
warrantless search is justified on grounds that it al-
lows police officers to protect themselves from hid-
den weapons that might suddenly be wielded against
them. Accordingly, officers are only permitted to
seize items from the area in the immediate control
of the arrestee.
Third, automobiles may be stopped if an officer
possesses a reasonable and articulable suspicion that
the motorist has violated a traffic law. Once the vehi-
cle has pulled to the side of the road, the Fourth
Amendment permits the officer to search the vehi-
cle’s interior, including the glove compartment.
However, the trunk of a vehicle cannot be searched
unless the officer has probable cause to believe that
it contains CONTRABAND or the instrumentalities of
criminal activity. But similar to a search incident to
arrest, once a vehicle has been lawfully impounded,
its contents may be inventoried without a warrant,
including the contents of the trunk.
Fourth, an officer who reasonably believes that
criminal activity may be afoot in a public place is au-
thorized to stop any person who is suspected of par-
ticipating in that criminal activity and conduct a care-
fully limited search of the suspect’s outer clothing for
weapons that may be used against the officer (see
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 21 L. Ed. 889
[1968]). The officer may also ask for identification,
but the suspect is under no obligation to produce it.
However, A suspect’s refusal to identify himself to-
gether with surrounding events may create probable
cause to arrest (see People v. Loudermilk, 195
Cal.App.3d 996, 241 Cal.Rptr. 208 (Cal.App. 1 Dist.
[1987]). This kind of warrantless search, called a
Terry stop or a Terry FRISK, is designed to protect of-
ficers from hidden weapons. Accordingly, items that
do not feel like weapons, such as a baggie of soft,
granular substance tucked inside a jacket pocket,
CRIMINAL LAW—SEARCH AND SEIZURE
384 GALE ENCYCLOPEDIA OF EVERYDAY LAW
cannot be seized during a Terry frisk, even if it turns
out that the item is contraband.
Fifth, warrantless searches, seizures, and arrests
may be justified by ‘‘exigent’’ circumstances. To de-
termine whether exigent circumstances justified po-
lice conduct, a court must review the totality of the
circumstances, including the gravity of the underly-
ing offense and whether the suspect was fleeing or
trying to escape. However, the surrounding circum-
stances must be tantamount to an emergency. Shots
fired, screams heard, or fire emanating from inside
a building have all been considered sufficiently exi-
gent to dispense with the Fourth Amendment’s war-
rant requirement.
Sixth, the Supreme Court has upheld brief, war-
rantless seizures at fixed roadside checkpoints aimed
at intercepting illegal ALIENS (see United States v.
Martinez-Fuerte, 96 S.Ct. 3074, 428 U.S. 543, 49
L.Ed.2d 1116 [1976]) and drunk drivers (see Michi-
gan v. Sitz, 110 S.Ct. 2481, 496 U.S. 444, 110 L.Ed.2d
412 [1990]). Both checkpoint programs passed con-
stitutional muster because they were tailored to rem-
edying specific problems that law enforcement could
not effectively address through more traditional
means, namely problems relating to policing the na-
tion’s border and ensuring roadway safety. However,
when the primary purpose of a checkpoint is simply
to detect ordinary criminal activity, the Supreme
Court has declared it violative of the Fourth Amend-
ment (see Indianapolis v. Edmond, 531 U.S. 32, 121
S.Ct. 447, 148 L.Ed.2d 333 [2000]).
Seventh, searches, seizures, and arrests made pur-
suant to a defective warrant may be justified if the of-
ficer was proceeding in ‘‘good faith.’’ The Supreme
Court has said that a search made pursuant to a war-
rant that is later declared invalid (i.e., it fails to meet
the requirements for a valid warrant enumerated
above) will still be considered reasonable under the
Fourth Amendment so long as the warrant was is-
sued by a magistrate and the defect was not the re-
sult of willful police deception (see U. S. v. Leon, 468
U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 [1984]). This
exception to the warrant requirement was created so
as not to punish honest police officers who have
done nothing wrong while acting in accordance with
an ostensibly valid warrant.
How the Fourth Amendment Applies: The
Exclusionary Rule
For the more than 100 years after its ratification,
the Fourth Amendment was of little value to criminal
defendants because evidence seized by law enforce-
ment in violation of the warrant or reasonableness
requirements was still ADMISSIBLE during the defen-
dant’s prosecution. The Supreme Court dramatically
changed Fourth Amendment JURISPRUDENCE when it
handed down its decision in Weeks v. United States,
232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914).
Weeks involved the appeal of a DEFENDANT who had
been convicted based on evidence that had been
seized by a federal agent without a warrant or other
constitutional justification. The Supreme Court re-
versed the defendant’s CONVICTION, thereby creating
what is known as the ‘‘exclusionary rule.’’ In Mapp
v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L.Ed.2d
1081(1961), the Supreme Court made the exclusion-
ary rule applicable to the states.
Designed to deter police misconduct, the exclu-
sionary rule enables courts to exclude incriminating
evidence from introduction at trial upon proof that
the evidence was procured in contravention of a con-
stitutional provision. The rule allows defendants to
challenge the admissibility of evidence by bringing a
pre-trial motion to suppress the evidence. If the
court allows the evidence to be introduced at trial
and the jury votes to convict, the defendant can chal-
lenge the propriety of the trial court’s decision deny-
ing the motion to suppress on appeal. If the defen-
dant succeeds on appeal, however, the Supreme
Court has ruled that DOUBLE JEOPARDY principles do
not bar retrial of the defendant because the trial
court’s error did not go to the question of guilt or in-
nocence (see Lockhart v. Nelson, 488 U. S. 33, 109
S.Ct. 285, 102 L.Ed.2d 265 (1988). Nonetheless, ob-
taining a conviction in the second trial would be sig-
nificantly more difficult if the evidence suppressed
by the exclusionary rule is important to the prosecu-
tion.
A companion to the exclusionary rule is the ‘‘fruit
of the poisonous tree’’ doctrine. Under this doctrine,
a court may exclude from trial not only evidence that
itself was seized in violation of the Constitution but
also any other evidence that is derived from an illegal
search. For example, suppose a defendant is arrested
for KIDNAPPING and later confesses to the crime. If a
court subsequently declares that the arrest was un-
constitutional, the CONFESSION will also be deemed
tainted and ruled INADMISSIBLE at any prosecution of
the defendant on the kidnapping charge.
CRIMINAL LAW—SEARCH AND SEIZURE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 385
State Court Decisions Interpreting State
Constitutional Provisions Governing
Search and Seizure
The federal Constitution and the Supreme Court
cases interpreting it establish the minimum amount
of protection that a state court must provide when
it is interpreting a section of the Bill of Rights that has
been made applicable to the states via the doctrine
of incorporation, including instances when a state
court is required to interpret and apply the Fourth
Amendment. A state court interpreting the search-
and-seizure provisions of its own constitution may
provide more protection than is afforded by the fed-
eral Constitution but not less. Below is a sampling of
cases decided in part based on a state court’s inter-
pretation of its own state constitutional provision
governing search and seizure.
FLORIDA: Florida courts are constitutionally re-
quired to interpret search and seizure issues in con-
formity with the Fourth Amendment of the United
States Constitution as interpreted by the United
States Supreme Court (see State v. Hernandez, 718
So.2d 833 (Fla.App. 1998); U.S.C.A. Const.Amend. 4;
West’s F.S.A. Const. Art. 1, § 12).
GEORGIA: A driver’s proceeding through a poorly lit
intersection without her headlights on created rea-
sonable suspicion to justify a traffic stop of driver
under the state constitution (see State v. Hammang,
249 Ga.App. 811, 549 S.E.2d 440 (Ga.App. 2001)
U.S.C.A. Const.Amend. 4; GA CONST Art. 1, § 1, P
XIII).
IDAHO: The term ‘‘exigent circumstances’’ refers to
a catalogue of exceptional or compelling circum-
stances that allow police to enter, search, seize, and
arrest without complying with the warrant require-
ments of the federal or state constitutions, including
unannounced entries to search made pursuant to
the state and federal ‘‘knock and announce’’ statutes
(see State v. Rauch, 99 Idaho 586, 586 P.2d 671
(Idaho 1978); Idaho Code §§ 19- 611, 19-4409;
U.S.C.A.Const. Amends. 4, 14).
LOUISIANA: Warrantless searches and seizures are
unreasonable PER SE unless justified by one of the
specific exceptions to warrant requirement of the
federal and state constitutions (see State v. Manson,
791 So.2d 749 (La.App. 2001); U.S.C.A. Const.Amend.
4; LSA-Const. Art. 1, § 50.)
MICHIGAN: Enhanced search and seizure protection
under Michigan’s Constitution is available only if the
search or seizure occurs inside the curtilage of the
house (see M.C.L.A. Const. Art. 1, § 11).
MINNESOTA: The purpose of the exclusionary rule
based upon the search and seizure provision of the
state constitution is to deter police misconduct, and
thus there is no compelling reason to apply a more
stringent standard when applying the state exclu-
sionary rule than when applying the federal exclu-
sionary rule (see State v. Martin, 595 N.W.2d 214
(Minn.App., 1999); U.S.C.A. Const.Amend. 4; M.S.A.
Const. Art. 1, § 10).
NEW JERSEY: Racial profiling involves a claim of un-
lawful search and seizure in violation of the state’s
constitution (see State v. Velez, 335 N.J.Super. 552,
763 A.2d 290 (N.J.Super.A.D., 2000); N.J.S.A. Const.
Art. 1, par. 7.)
NEW MEXICO: The state constitution allows a war-
rantless arrest only upon a showing of exigent cir-
cumstances (see American Civil Liberties Union of
New Mexico v. City of Albuquerque, 128 N.M. 315,
992 P.2d 866 (N.M. 1999); NM Const. Art. 2, § 10).
NEW YORK: Liquor retailer had no legitimate expec-
tation of privacy in retail customer sales records
maintained by liquor wholesalers with whom the re-
tailer had business dealings, and thus, the retailer
lacked standing to challenge, as an unreasonable
search and seizure in violation of the New York Con-
stitution, the Department of TAXATION and Finance’s
use of wholesalers’ sales records to investigate sus-
pected underreporting of SALES TAX by liquor retail-
ers (see Roebling Liquors Inc. v. Commissioner of
Taxation and Finance, 284 A.D.2d 669, 728 N.Y.S.2d
509 (N.Y.A.D. 3 Dept., 2001); U.S.C.A. Const.Amend.
4; McKinney’s Const. Art. 1, § 12).
NORTH CAROLINA: Where the government is aware
that certain business records relating to crime exist
but cannot get their precise titles or quantity, the
Fourth Amendment does not require that the war-
rant enumerate each individual paper, and the state
constitution does not require more particularity than
does the Fourth Amendment of the federal Constitu-
tion (see State v. Kornegay, 313 N.C. 1, 326 S.E.2d
881 (N.C. 1985); U.S.C.A. Const.Amends. 4, 14; NC
Const. Art. 1, § 20).
OHIO: An inventory search of a compartment of a
lawfully impounded vehicle does not contravene the
federal or state constitutions, where the search is ad-
ministered in GOOD FAITH and in accordance with
reasonable police procedures or established routine
CRIMINAL LAW—SEARCH AND SEIZURE
386 GALE ENCYCLOPEDIA OF EVERYDAY LAW
(see State v. Mesa, 87 Ohio St.3d 105, 717 N.E.2d 329
(Ohio 1999); U.S.C.A. Const.Amend. 4; Const. Art. 1,
§ 14).
WASHINGTON: Without judicial participation, a mu-
nicipal court clerk may not order the issuance of an
ARREST WARRANT in the absence of an authorizing
STATUTE, court rule, or ORDINANCE (see State v. Walk-
er, 101 Wash.App. 1, 999 P.2d 1296 (Wash.App.
2000); U.S.C.A. Const.Amend. 4; West’s RCWA Const.
Art. 1, § 7).
WISCONSIN: Where police officers act in objectively
reasonable reliance upon a facially valid SEARCH
WARRANT that has been issued by a detached and neu-
tral magistrate, a good-faith exception to the exclu-
sionary rule applies under the state constitution, pro-
vided that the state shows the process used in
obtaining the warrant included a significant investi-
gation and review by either a police officer trained
and knowledgeable in the requirements of probable
cause and reasonable suspicion or a knowledgeable
government attorney (see State v. Eason, 245 Wis.2d
206, 629 N.W.2d 625 (Wis. 2001); W.S.A. Const. Art.
1, § 11).
Additional Resources
American Jurisprudence. Lawyers Co-operative Publish-
ing Company, 2001.
Criminal Procedure. Wayne R. LaFave, Jerold H. Israel,
and Nancy J. King, West Group, 2001.
http://www.nolo.com/encyclopedia/articles/crim/search_
seizure.html. Understanding Search and Seizure Law,
2001.
Oxford Companion to the Supreme Court. Kermit Hall,
ed., Oxford University Press, 1992.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Civil Liberties Union (ACLU)
1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
E-Mail: info@aclu.org
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive
Director
Association of Federal Defense Attorneys
8530 Wilshire Blvd, Suite 404
Beverly Hills, CA 90211 USA
Phone: (714) 836-6031
Fax: (310) 397-1001
E-Mail: AFDA2@AOL.com
URL: http://www.afda.org
Primary Contact: Gregory Nicolaysen, Director
Center for Human Rights and Constitutional
Law
256 S. Occidental Blvd.
Los Angeles, CA 90057 USA
Phone: (213) 388-8693
Fax: (213) 386-9484
E-Mail: mail@centerforhumanrights.org
URL: http://www.centerforhumanrights.org
Primary Contact: Peter A. Schey, Executive Director
National District Attorneys Association
(NDAA)
99 Canal Center Plaza
Alexandria, VA 22314 USA
Phone: (703) 549-9222
Fax: (703) 836-3195
URL: http://www.ndaa.org
Primary Contact: Thomas J. Charron, Director
CRIMINAL LAW—SEARCH AND SEIZURE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 387
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CRIMINAL LAW
SENTENCING AND SENTENCING
GUIDELINES
Sections within this essay:
• Background
• Types of Sentences
• Factors Considered in Determining A Sen-
tence
• ‘‘Three Strikes’’ Sentencing Laws
• Uniformity and Consistency
• Alternative Sentences
• Sentencing Commissions
• Selected State Sentencing Provisions
• Additional Resources
Background
A sentence is a formal judgment pronouncing a
specific punishment to be imposed for the
CONVICTION of a crime. It may involve the payment
of a fine, community service, INCARCERATION, or, in
capital offenses, the death penalty. It also may con-
sist of a term of PROBATION or PAROLE (although pa-
role has been abolished in many states).
Sentences may be meted out directly following
the entry of a verdict or at a ‘‘sentencing hearing’’
scheduled for a later date. In the interim, prosecu-
tors prepare a ‘‘sentencing report’’ which advises the
court of the defendant’s prior criminal record, aggra-
vating or MITIGATING CIRCUMSTANCES, and other infor-
mation about the DEFENDANT that may assist the
court in deciding an appropriate punishment.
There have been concerted efforts over the years
to standardize the approach toward sentencing, par-
ticularly in FELONY offenses, and to diminish judicial
discretion in sentencing. These efforts reflect a vacil-
lating but recurring perception by lawmakers and the
public at large that arbitrary or discriminatory prac-
tices may interfere with fair and just sentencing in
certain cases or for certain crimes.
Types of Sentences
Listed below are the types of sentences imposed:
• A concurrent sentence is served at the same
time as another sentence imposed earlier or
at the same proceeding.
• A consecutive (or cumulative) sentence oc-
curs when a defendant has been convicted
of several counts, each one constituting a
distinct offense or crime, or when a defen-
dant has been convicted of several crimes at
the same time. The sentences for each crime
are then ‘‘tacked’’ on to each other, so that
each sentence begins immediately upon the
expiration of the previous one.
• A deferred sentence occurs when its
EXECUTION is postponed until some later
time.
• A determinate sentence is the same as a
fixed sentence: It is for a fixed period of
time.
• A final sentence puts an end to a criminal
case. It is distinguished from an interlocuto-
ry or interim sentence.
• An indeterminate sentence, rather than stat-
ing a fixed period of time for IMPRISONMENT,
GALE ENCYCLOPEDIA OF EVERYDAY LAW 389
instead declares that the period shall be
‘‘not more than’’ or ‘‘not less than’’ a certain
prescribed duration of time. The authority
to render indeterminate sentences is usually
granted by STATUTE in several states.
• A life sentence represents the DISPOSITION of
a serious criminal case, in which the convict-
ed person spends the remainder of his or
her life in prison.
• A mandatory sentence is created by state
statute and represents the rendering of a
punishment for which a judge has/had no
room for discretion. Generally it means that
the sentence may not be suspended and that
no probation may be imposed, leaving the
judge with no alternative but the ‘‘mandat-
ed’’ sentence.
• A maximum sentence represents the outer
limit of a punishment, beyond which a con-
victed person may not be held in custody.
• A minimum sentence represents the mini-
mum punishment or the minimum time a
convicted person must spend in prison be-
fore becoming eligible for parole or release.
• A presumptive sentence exists in many
states by statute. It specifies an appropriate
or ‘‘normal’’ sentence for each offense to be
used as a baseline for a judge when meting
out a punishment. The STATUTORY presump-
tive sentence is considered along with other
relevant factors (aggravating or mitigating
circumstances) in determining the actual
sentence. Most states have statutory ‘‘pre-
sumptive guidelines’’ for major or common
offenses.
• A straight or flat sentence is a fixed sentence
without a maximum or minimum.
• A SUSPENDED SENTENCE actually has two dif-
ferent meanings. It may refer to a withhold-
ing or postponing of pronouncing a sen-
tence following a conviction or it may refer
to the postponing of the execution of a sen-
tence after it has been pronounced.
Factors Considered in Determining a
Sentence
Judges, not juries, determine punishments for a
crime (in CAPITAL PUNISHMENT cases, the jury usually
decides whether to recommend death or life in pris-
on).
The Eighth Amendment to the U. S. Constitution
made applicable to the states by the Fourteenth
Amendment provides that ‘‘Excessive BAIL shall not
be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.’’ In addition to
the sentencing prohibitions contained in the Consti-
tution, Title 18 of the United States Code, Part II
(CRIMINAL PROCEDURE), Chapters 227 (Sentences),
228 (Death Sentence), and 232 (Miscellaneous Sen-
tencing Provisions) also govern sentencing in federal
courts. Similarly, state court sentencing procedures
are governed by state laws and constitutions as dis-
cussed below.
Most crimes are specifically enumerated in consti-
tutions or statutes, and the provision that identifies
the specific crime will also identify the appropriate
punishment. For example, a statute may read, ‘‘Viola-
tion of this statute constitutes a MISDEMEANOR, pun-
ishable by a fine not to exceed $500 or imprisonment
not to exceed 30 days, or both.’’ Given this range of
potential punishment, a judge will then consider cer-
tain ‘‘aggravating’’ or ‘‘mitigating’’ circumstances to
determine where along the prescribed spectrum a
particular criminal’s punishment should fall. Com-
mon factors considered by judges include:
• Whether the offender is a ‘‘first-time’’ or re-
peat offender
• Whether the offender was an ACCESSORY
(helping the main offender) or the main of-
fender
• Whether the offender committed the crime
under great personal stress or duress
• Whether anyone was hurt, and whether the
crime was committed in a manner that was
unlikely to result in anyone being hurt
• Whether the offender was particularly cruel
to a victim, or particularly destructive, vin-
dictive, etc.
• (Sometimes) whether the offender is genu-
inely contrite or remorseful
Under Federal Rule of Criminal Procedure 32(a),
before imposing a sentence, the court must afford
COUNSEL an opportunity to speak on behalf of the de-
fendant. The court will address the defendant per-
sonally and ask him if he wishes to make a statement
in his own behalf and to present any information in
mitigation of punishment. The attorney for the gov-
ernment will have an equivalent opportunity to
speak to the court. Similar provisions are contained
CRIMINAL LAW—SENTENCING AND SENTENCING GUIDELINES
390 GALE ENCYCLOPEDIA OF EVERYDAY LAW
in most state procedural statutes and rules. In many
state courts, a victim or the survivors of a victim may
also have the opportunity to address the court and
recommend leniency or strictness for the sentence.
‘‘Three Strikes’’ Sentencing Laws
Under the Violent Crime Control and Law En-
forcement Act of 1994, the ‘‘Three Strikes’’ statute
(18 U.S.C. 3559(c)) provides for mandatory life im-
prisonment if a convicted felon:
• Been convicted in federal court of a ‘‘serious
violent felony’’ and
• Has two or more previous convictions in fed-
eral or state courts, at least one of which is
a ‘‘serious violent felony.’’ The other offense
may be a serious drug offense.
The statute goes on to define a serious violent fel-
ony as including murder, MANSLAUGHTER, SEX
OFFENSES, KIDNAPPING, robbery, and any offense pun-
ishable by 10 years or more which includes an ele-
ment of the use of force or involves a significant risk
of force.
The State of Washington was the first to enact a
‘‘Three Strikes’’ law in 1993. Since then, at least half
of all states, in addition to the federal government,
have enacted three strikes laws. The primary focus
of these laws is the containment of recidivism (re-
peat offenses by a small number of criminals). Cali-
fornia’s law is considered the most far-reaching and
most often used among the states.
Uniformity and Consistency
In addition to ‘‘three strikes’’ laws, other state and
all federal criminal statutes include mandatory sen-
tences that require judges to impose identical sen-
tences on all persons convicted of the same offense.
Mandatory sentences are a direct result of state legis-
latures’ or Congress’ response to the public percep-
tion of judicial leniency or inconsistency in sentenc-
ing practices.
However, most crimes do not carry mandatory
sentences. If sentencing is not mandatory, judges
may ‘‘fit the punishment to the offender’’ rather than
‘‘fit the punishment to the crime.’’ Competing theo-
ries about criminal justice help to fuel the different
approaches to sentencing and punishment. These
include the severity of punishment meted, and the
specific objective sought by the punishment:
• Retribution: Some believe that the primary
purpose of punishment should be to punish
an offender for the wrong committed, soci-
ety’s vengeance against a criminal. The senti-
ment is to punish criminals and promote
public safety by keeping them ‘‘off the
streets.’’
• Rehabilitation: Others believe that the pri-
mary purpose of punishment should be to
rehabilitate criminals to mend their criminal
ways and to encourage the ADOPTION of a
more socially acceptable lifestyle. Most ex-
perts agree that this theory is commendable
but not practical in prisons. Many criminals
boast of coming out ‘‘better criminals’’ than
they were when they entered prison.
• Deterrence: Still others argue that the per-
ceived punishment for a crime should be so
undesirable as to result in deterring some-
one from actually committing a crime for
fear of the likely punishment. Again, the the-
ory is commendable, but many crimes are
committed on impulse or under the influ-
ence of alcohol and other drugs. Fear of
punishment is usually not a deterrent under
these circumstances. Moreover, repeat of-
fenders do not fear incarceration the way
that people who have been free all their lives
might.
Alternative Sentences
Forced to face prison overcrowding and failed at-
tempts at deterrence or rehabilitation, many profes-
sionals in the criminal justice system have encour-
aged ‘‘alternative sentencing,’’ which refers to any
punishment other than incarceration. Most alterna-
tive sentences are really variations of probation, e.g.,
a fine and community service, along with a set period
of probation. Some judges have gotten more creative
in their sentencing. In many jurisdictions, convicted
persons have been required to do the following:
• Install breathalyzser devices in their vehicles
(‘‘ignition interlocks’’) to prevent their oper-
ation of the vehicle without blowing into the
device to determine whether their breath is
free of alcohol
• Carry signs which inform the community of
their offense
• Stay at home under ‘‘house arrest’’
CRIMINAL LAW—SENTENCING AND SENTENCING GUIDELINES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 391
• Complete alcohol or other drug treatment
programs
• Attend lectures given by crime victims
Sentencing Commissions
The U. S. Sentencing Commission was created in
1984 as part of the Sentencing Reform Act provisions
that were included in the Comprehensive Crime
Control Act of 1984 (28 U.S.C. 994). The Commis-
sion’s principal purpose is to establish uniform sen-
tencing guidelines and practices for the federal court
system. The guidelines provide 43 levels of offense
seriousness that take into account not only the seri-
ousness of the crime, but also the offender’s criminal
history. They apply to all federal felonies and most
serious misdemeanors. Federal courts use the guide-
lines for presumptive sentencing and all determina-
tions are subject to intensive APPELLATE review. Pa-
role also has been abolished in the federal system.
Now and then, the U. S. Supreme Court may rule
on a matter involving sentencing guidelines. In Bu-
ford v. United States, 000 U.S. 99-9073 (2001), the U.
S. Supreme Court affirmed the earlier decision of the
7th Circuit Court of Appeals, which held that appeals
courts should be ‘‘deferential’’ to a trial court’s deci-
sion when reviewing the trial court’s interpretation
of federal Sentencing Guidelines (at least as to deter-
minations on whether an offender’s prior convic-
tions were ‘‘consolidated’’ for purposes of sentenc-
ing).
Many states have established their own sentenc-
ing commissions. The National Association of Sen-
tencing Commissions (NASC), which includes the
federal sector as a member, provides a forum, com-
plete with national conferences, to promote the
adoption of uniform or similar presumptive sentenc-
ing guidelines among jurisdictions. Most state sen-
tencing guidelines incorporate or adopt provisions
from the Model Penal Code (MPC).
Selected State Sentencing Provisions
ALABAMA: As of 2001, the Alabama Judicial Study
Commission was finalizing its creation of a perma-
nent sentencing commission for the state.
ALASKA: Alaska has judicially-created ‘‘benchmark’’
guidelines for felonies, with moderate appellate re-
view. Parole has been abolished for most (two-
thirds) felonies. There is no active sentencing com-
mission for the state.
ARKANSAS: State courts employ voluntary guidelines
for felonies. There is no appellate review. Arkansas
has retained its parole system. There are guidelines
which incorporate intermediate sanctions, with pre-
liminary discussions for guidelines in juvenile cases.
State sentencing commission was established in
1994.
DELAWARE: Delaware utilizes voluntary guidelines
for felonies and misdemeanors. Parole has been
abolished in the state since 1990. There is moderate
appellate review of sentencing decisions. The state’s
sentencing guidelines incorporate intermediate
sanctions.
DISTRICT of COLUMBIA: The district has created a
temporary commission to study sentencing guide-
lines and report directly to the City Council.
FLORIDA: In Florida, guidelines were repealed in
1997 and replaced with statutory presumptions for
minimum sentences for felonies. The state sentenc-
ing commission was abolished in 1998 after the
adoption of the new statutory presumptive sen-
tences. There is moderate appellate review of sen-
tencing determinations. Parole has been abolished in
the system.
IOWA: Iowa has established a legislative commission
to study sentencing reform.
KANSAS: Kansas uses presumptive guidelines for fel-
onies, with moderate appellate review. Parole has
been abolished in the state. There are no guidelines
for intermediate sanctions.
MARYLAND: Maryland’s legislature created a perma-
nent sentencing commission in 1998. There are vol-
untary guidelines for felonies, with no appellate re-
view. Parole has been retained.
MASSACHUSETTS: In Massachusetts, there are pre-
sumptive guidelines for felonies and misdemeanors.
A proposal is pending in the legislature for appellate
review of sentencing determinations. Parole has
been retained.
MICHIGAN: Michigan has been a member of the Na-
tional Association of Sentencing Commissions since
1999. The state employs presumptive guidelines for
felonies, with appellate review as authorized by stat-
ute. The state also maintains a restricted parole sys-
tem.
MINNESOTA: The state has presumptive guidelines
for felonies, with moderate appellate review. Parole
has been abolished in the state. There are no guide-
lines for intermediate sanctions.
CRIMINAL LAW—SENTENCING AND SENTENCING GUIDELINES
392 GALE ENCYCLOPEDIA OF EVERYDAY LAW
MISSOURI: Missouri uses voluntary guidelines for fel-
onies, with no appellate review. Parole has been re-
tained in the state.
NORTH CAROLINA: In North Carolina, there are pre-
sumptive guidelines for felonies and misdemeanors,
with minimum appellate review. Since 1999, the
state has incorporated a special dispositional grid for
juvenile cases. Parole has been abolished in the state.
OHIO: Ohio uses presumptive narrative guidelines
for felonies. There is limited appellate review. Parole
has been abolished and replaced with a judicial re-
lease mechanism. The state legislature is also consid-
ering structured sentencing for juvenile offenders.
OKLAHOMA: In Oklahoma, presumptive guidelines
are in place for felonies. The state has retained a lim-
ited parole system. Legislative proposals are pending
for appellate review of sentencing determinations.
OREGON: Oregon has presumptive guidelines for
felonies, with moderate appellate review. Parole has
been abolished.
PENNSYLVANIA: Presumptive guidelines are in place
for felonies and misdemeanors, with minimum ap-
pellate review. Parole has been retained.
SOUTH CAROLINA: The state employs voluntary
guidelines for felonies and misdemeanors with po-
tential sentences of one year or more.
TENNESSEE: There are presumptive guidelines for
felonies, with moderate appellate review. Parole has
been retained. The sentencing commission was abol-
ished in 1995.
UTAH: The state uses voluntary guidelines for felo-
nies and select misdemeanors (sex offenses). There
is no appellate review. Parole has been retained in
the state. The state also uses voluntary guidelines for
its juvenile sentencing.
VIRGINIA: Virginia has voluntary guidelines for felo-
nies, with no appellate review. Parole has been abol-
ished. The state is studying juvenile sentencing
guidelines.
WASHINGTON: The state employs presumptive
guidelines for felonies, with moderate appellate re-
view. Parole has been abolished in the state. Special
guidelines for juvenile sentencing are in effect.
WISCONSIN: In Wisconsin, the state employs volun-
tary guidelines for felonies. Legislative proposals are
pending, which do not contemplate appellate re-
view. The proposals also contemplate the abolish-
ment of the state’s parole system, as well as the cre-
ation of a new permanent sentencing commission.
Additional Resources
‘‘An Overview of the Federal Sentencing Guidelines’’ Unit-
ed States Sentencing Commission. Available at http://
www.ussc.gov
The Court TV Cradle-to-grave Legal Survival Guide. Little,
Brown and Company, 1995.
Federal Rules of Civil Procedure. Available at http://
www.law.cornell.edu/topics/civil_procedure.html
‘‘Federal Sentencing Statistics by State.’’ Available at http://
www.ussc.gov/linktojp.htm
‘‘How Sentencing Works.’’ Available at http://
www.nolo.com/lawceneter/ency/article.cf
‘‘The Impact of ‘Three Strikes and You’re Out’ Laws: What
Have We Learned.’’ 1996. Available at http://
www.soc.umn.edu/-samaha/cj4e/ch11/j11H1.html.
Memorandum For All United States Attorneys.’’ Jo Ann
Harris, Jo Ann. 15 March 1995. Available at http://
www.usdoj.gov/usao/eousa/foia_reading_room/usam/
title9/crm01032.htm
‘‘Sentencing Alternatives: From Incarceration to Diver-
sion.’’ Available at http://www.nolo.com/lawceneter/
ency/article.cf
‘‘State Sentencing Commissions.’’ National Association of
Sentencing Commissions. Available at http://
www.ussc.gov/states.htm
The Court TV Cradle-to-grave Legal Survival Guide. Little,
Brown and Company. 1995.
‘‘The Impact of ‘Three Strikes and You’re Out’ Laws: What
Have We Learned,’’ 1996. Available at http://
www.soc.umn.edu/-samaha/cj4e/ch11/j11H1.html.
U. S. Code, Title 18: Crimes and Criminal Procedure, Part
II: Criminal Procedure, Chapter 227, 228, and 232.
U. S. House of Representatives. Available at hhtp://
uscode.ho,use.gov/title_21.htm
CRIMINAL LAW—SENTENCING AND SENTENCING GUIDELINES
GALE ENCYCLOPEDIA OF EVERYDAY LAW 393
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DISPUTE RESOLUTION ALTERNATIVES
ARBITRATION
Sections within this essay:
• Background
• Contractual versus Compulsory Arbitration
• Arbitrability
• Who are the Arbitrators?
• The Arbitration Process
• The Uniform Arbitration Act (UAA)
• Federal Arbitration
• State Arbitrations
• Additional Resources
Background
ARBITRATION refers to one of several methods, col-
lectively referred to as ‘‘alternative dispute resolu-
tion’’ (ADR), for resolving legal disputes other than
through a formal court system. Arbitration is very
similar to a trial in court, except that the claims and
defenses are presented to a privately-retained neu-
tral party (‘‘arbitrator’’ or ‘‘arbiter’’) rather than a
judge or jury. After listening to summary arguments
and considering all the EVIDENCE presented in a dis-
pute, an arbitrator renders a decision tantamount to
a court decision or judgment.
Since it is intended to substitute for a trial, formal
arbitration is generally as binding as a court
ADJUDICATION. Therefore, like it or not, a decision of
an arbitrator may be appealed only under very nar-
row circumstances and criteria. (In fact, the arbitra-
tion agreement may designate that the decision is
final and binding and cannot be appealed.) However,
some forms of arbitration may be expressly designat-
ed as ‘‘non-binding.’’ In those circumstances, one
may accept or reject the arbitration decision and con-
tinue with LITIGATION in the courts.
Arbitration has become a preferred alternative fa-
vored by both courts and parties for resolving dis-
putes. All 50 states acknowledge some form of arbi-
tration for the resolution of certain disputes. A
majority of states (48 as of 2002, excepting Georgia
and Mississippi) have adopted the Uniform Arbitra-
tion Act (UAA) and/or its revised version, published
in 2000, or substantially similar legislation. Washing-
ton, D. C. and Puerto Rico also have adopted ver-
sions of the Act.
The use of arbitration has greatly expanded in re-
cent years, because of the fast resolution of disputes,
and the relative consistency and near-uniformity in
procedural requirements (thanks to the UAA). The
arbitration process also affords the parties a degree
of privacy for sensitive or personal matters. Health
care providers and insurance companies almost uni-
versally favor arbitrations because of the opportunity
to avoid the publicity of court trials and jury verdicts.
Contractual versus Compulsory
Arbitration
Voluntary arbitration refers to an agreement en-
tered into by two or more parties who choose to ar-
bitrate a matter rather than litigate the matter in
court. The agreement is a binding contract, and if a
dispute later develops, one cannot choose to ignore
the arbitration agreement and file suit instead.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 395
But arbitration is not ‘‘compulsory.’’ It simply
means that persons have voluntarily agreed in ad-
vance to arbitrate any future disputes and cannot
back out of that agreement once a dispute arises.
Failure to abide with ‘‘contractual arbitration’’ as
agreed constitutes a breach of the agreement. If an
individual has entered into such an agreement and
later decides to file suit instead of arbitrating the dis-
pute, the other person or party may take that individ-
ual to court to compel arbitration.
One of the most common circumstances where
this situation arises is in the health care and insur-
ance industries. When individuals enter a hospital for
treatment or care, or fill out ‘‘new patient’’ forms for
a physician, they may be asked to sign a document
in which they agree to arbitrate any dispute which
may arise. If they later attempt to sue the doctor or
hospital for MALPRACTICE or a billing dispute, the
agreement they signed will be presented to the court
and their lawsuit will be dismissed and/or the court
will order them to arbitrate the matter. The real dan-
ger in having their case dismissed is that the time
limit for filing a dispute in arbitration may have ex-
pired while they were attempting to file a lawsuit in
court (in some jurisdictions, a court may ‘‘stop the
clock’’ to provide them with enough time to dismiss
their court case and file it in arbitration). The lesson
to learn is that they should carefully read all docu-
ments their health care provider may present to
them prior to treatment or care, and they need to be
always be certain to retain a copy for their records.
In many states, laws prohibit health care providers
from refusing to treat individuals if they will not sign
a voluntary arbitration agreement. On the other
hand, only in rare circumstances will a court permit
them to ‘‘set aside’’ a signed agreement to arbitrate
and allow them to file suit instead. Usually, they will
have to prove to the court that they did not sign the
arbitration agreement ‘‘voluntarily.’’ For example,
there is some legal precedent for allowing agree-
ments with health care providers to be set aside
(making them ‘‘voidable’’) when evidence shows
that they were signed while under extreme DURESS
or in pain, semi-conscious, etc. In even more rare cir-
cumstances, a court may find an agreement to arbi-
trate ‘‘unconscionable’’ as against PUBLIC POLICY and
determine it to be null and void.
It is common practice for insurance policies (e.g.,
automobile, home, health, etc.) to contain language
that commits an insured to the use of arbitration in
the event of a dispute with the insurer. Many in-
sureds do not realize that such language is contained
in the lengthy policy language at the time they apply
for insurance coverage. It often remains unknown
and unrealized until a dispute arises and the insured
attempts to sue his or her insurance provider. In
most insurance policies, the agreement to arbitrate
is not a separate document, but rather a statement
contained in the policy, such as, ‘‘You agree to arbi-
trate any dispute relating to . . .’’ Individuals who sign
the application for insurance coverage and have a
policy issued to them have agreed to those terms.
On the other hand, ‘‘compulsory arbitration’’ is
generally the result of express STATUTE or regulation
that mandates the arbitration of certain matters. The
most common of these is the mandatory arbitration
of labor disputes. If individuals are members of a
union, the bargaining agreement for their bargaining
unit will most likely contain provisions for the arbi-
tration of all disputes.
One of the most compelling reasons for mandat-
ing the arbitration of certain matters is that such mat-
ters tend to be very complex, specialized, or too
time-consuming for a general jury trial. For example,
a dispute over a provision in the Internal Revenue
Code may be technically complicated. Instead of a
jury trial, arbitration will provide the opportunity for
appointment of a neutral arbitrator or panel of arbi-
ters who may be knowledgeable and experienced in
tax matters and can more readily understand the ar-
guments presented. The ‘‘State Provisions’’ Section
below summarizes key areas where states have man-
dated compulsory arbitration of certain matters.
Arbitrability
If the subject matter of a particular dispute falls
within the scope of subjects that the parties agreed
in advance to arbitrate, then the particular dispute is
‘‘arbitrable.’’ However, many disputes involve multi-
ple issues, not all of which were contemplated when
the arbitration agreement was executed. For exam-
ple, a claim may state an arbitrable issue of WRONGFUL
DISCHARGE from employment. But the defense may
raise an issue of untimely filing of the claim or some
other procedural error or FATAL flaw on the part of
the complainant. Who decides that?
Most federal and state APPELLATE COURT decisions
have concluded that the only proper inquiry that a
court should make, on a motion to compel arbitra-
tion, is (1) whether there exists a valid agreement to
arbitrate between the parties, and (2) whether the
DISPUTE RESOLUTION ALTERNATIVES—ARBITRATION
396 GALE ENCYCLOPEDIA OF EVERYDAY LAW
agreement covers the dispute at hand. All other is-
sues, particularly defenses such as untimeliness,
COLLATERAL ESTOPPEL, RES judicata, etc., should prop-
erly be decided by the arbitrator.
If such an event should occur (the raising of an
issue not related to the subject matter of the dispute
at hand), the arbitrator may render one decision cov-
ering all or may be forced to render a separate opin-
ion on the ‘‘arbitrability’’ of the separate claim or de-
fense, without ever reaching the main issue of the
dispute. Still, sometimes the arbitrability of the main
issue is, in itself, the actual dispute, as often occurs
in labor contracts.
Who are the Arbitrators?
The majority of arbitration agreements contain
provisions governing the selection and appointment
of an arbitrator or arbitration panel. Private arbitra-
tion contracts may designate any person or any
method for choosing a person or persons as arbitra-
tors. If an arbitration panel is elected (usually com-
prised of three persons), each party may nominate
or appoint one arbitrator, and both sides will decide
on a ‘‘neutral’’ third person. Or, the parties will each
select one arbitrator, and the two arbitrators will
then select a third ‘‘neutral.’’ Alternatively, three
‘‘neutrals’’ may be selected by having each party al-
ternately strike names on one list until only three
names remain. In single-arbitrator arbitrations, an ex-
ternal source of available arbitrators is often consult-
ed.
The American Arbitration Association (AAA) is the
largest full-service ADR provider in the United States.
It maintains a National Roster of Arbitrators and Me-
diators (containing nearly 17,000 names and re-
sumes as of 2002). The persons named on the Roster
have been nominated by leaders in their industry or
profession. The AAA has strict criteria for its Roster
members, and those selected are generally recog-
nized for their standing and expertise in their fields,
their integrity, and their dispute resolution skills.
Many are attorneys, but being one is not a require-
ment. Many arbitration agreements expressly desig-
nate the use of AAA as the preferred source for arbi-
trators.
Under the Federal Arbitration Agreement (FAA)
(see below), if an arbitration agreement does not
contain a provision for the naming or appointing of
an arbitrator, ‘‘the court shall designate and appoint
an arbitrator . . .’’ (9 USC Section 5).
The Arbitration Process
The arbitration process generally begins with the
filing of a request for arbitration. This action may be
performed by direct application to the forum desig-
nated in the private arbitration agreement or by
court order. Parties who simply wish to arbitrate a
matter should contact a local entity that offers arbi-
tration services. Often, a local circuit or district court
may have information or services available. There are
several national organizations that also offer local ar-
bitrations or supply lists of arbitrators (see listings
below).
The chosen forum will most likely furnish the par-
ties with a copy of rules and procedures. Attorneys
may or may not represent the parties. Generally, an
arbitration HEARING parallels a court trial, in that
there is the taking of TESTIMONY from witnesses and
the introduction of evidence. However, many arbitra-
tions are conducted on the basis of ‘‘summary
briefs’’ from each party, which outline the issues and
the arguments in document form. Arbitration deci-
sions are always in written form. A decision may or
may not be appealable, depending on the forum and
the agreement of the parties.
The Uniform Arbitration Act (UAA)
The Uniform Arbitration Act, promulgated in
1955, has been overwhelmingly adopted by state leg-
islatures and federal district courts for alternate dis-
pute resolution. Its popularity derives from the ad-
vantages of uniformity and thoroughness, and in
2000, the National Conference of Commissioners on
Uniform State Laws approved and recommended a
revised version of the UAA for enactment in all the
states. The UAA provides a structured procedure to
be followed in all arbitrations, and, most importantly,
includes details addressing matters that are often
overlooked in privately drafted arbitration agree-
ments. The revised UAA includes provisions not ad-
dressed in the original UAA, but deemed important
as a result of the increased use of arbitration. Some
of the new provisions address matters such as (1)
who decides the arbitrability of a dispute and by what
criteria; (2) whether arbitrators have the discretion
to order DISCOVERY, issue protective orders, decide
motions for SUMMARY JUDGMENT, etc.; and (3) to what
extent arbitrators and arbitration organizations are
immune from civil lawsuits.
DISPUTE RESOLUTION ALTERNATIVES—ARBITRATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 397
Federal Arbitration
Amendment VII (1791) provides that ‘‘In all suits
at COMMON LAW, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall
be preserved . . .’’ This provision guarantees individ-
uals their ‘‘day in court’’ unless they either voluntari-
ly choose an alternative dispute resolution, or the
subject matter of their dispute falls under a compul-
sory arbitration mandate by law. Generally, if arbitra-
tion is made compulsory, there is a right of appeal
through the courts of an arbitration decision.
Arbitration in the federal courts may be the result
of a private contractual agreement to arbitrate, a
STATUTORY mandate, or a court-ordered arbitration.
A majority of federal courts have authorized or estab-
lished at least one court-wide ADR program, which
may include court-ordered MEDIATION, arbitration,
early neutral evaluation (ENE), etc. These measures
are the result of the Civil Justice Reform Act of 1990
(CJRA) (28 USC 471 et seq.). The CJRA has changed
the use of ADR from being the initiative of individual
judges to being part of court-managed, district wide
programs.
The Alternative Dispute Resolution Act of 1998
(ADRA) (28 USC 651 et seq.) further expands upon
the CJRA by mandating that courts establish and au-
thorize the use of ADR in all civil actions. The federal
government also encourages arbitration and media-
tion within its own ranks. The Administrative Dispute
Resolution Act of 1996 provides a mediation forum
for handling disputes within agencies or between cit-
izens and agencies (claims against the government).
Arbitration in the federal court system is governed
by the Federal Arbitration Act (FAA), first enacted in
1925 and codified in 1947 under Title 9 of the United
States Code. Chapter 1 of Title 9 (General Provi-
sions) contains such directives as the method for
naming or appointing an arbitrator (Section 5); for
summoning witnesses to TESTIFY (Section 7); and for
remedy and recourse for failing to arbitrate as agreed
(Section 4). While the FAA is not in itself a procedural
mandate, it provides an authoritative backdrop for
arbitrations and commands that arbitration agree-
ments be enforced in accordance with their terms.
Importantly, the FAA ‘‘preempts’’ any state law
that conflicts with its pro-arbitration public policy or
any state law that renders moot or limits contractual
agreements to arbitrate. The rule of preemption ap-
plies in both federal and state courts (adjudicating
federal claims). However, if the parties clearly ex-
press an agreement to conduct their arbitration
under state law/rules (under a ‘‘choice of law’’ provi-
sion), the FAA will not preempt this.
State Arbitration
The following states provide for ADR (arbitration
or mediation) for certain types of disputes:
ALABAMA: Alabama Code, Ch. 25-7-4 applies to labor
disputes.
ALASKA: Alaska Statutes 42.40.840 and 23.40.190 ad-
dress labor disputes. Family disputes are governed
by 25.20.080 and 25.24.080. Disputes involving auto-
mobile warranties are governed by 45.45.355.
ARIZONA: Arizona has adopted the UAA under Sec-
tions 12-1501 to 12-1518 of the Arizona Statutes. Pro-
visions for arbitration/mediation of family disputes is
covered under 25-381.01 to 25-381.24. Automobile
warranties are covered under 44-1265.
ARKANSAS: The UAA has been adopted under Arkan-
sas Statutes 16-108-201 to 16-108-224. Sections 11-2-
201 to 11-2-206 govern labor disputes.
CALIFORNIA: California’s Code contains extensive
provisions for the arbitration and/or mediation of
many types of disputes. Labor disputes are addressed
under Sections 65, 66, and 3518. Family disputes are
covered in Sections 5180 to 5183. Education matters
are covered by 48260.6, 48263, 48263.5 (truancy),
and 56503 (special education). There is a special pro-
vision for the arbitration of cable TV franchise dis-
putes under 53066.1(n)(1). Environmental regulato-
ry disputes, including issues involving pesticides, are
covered under 13127(c)(1). Water rights disputes are
handled under 1219. Community disputes of a busi-
ness or professional nature are covered under 465 to
471.5.
COLORADO: Colorado’s statutes provide ADR for
labor disputes under 8-3-113. Family matters are cov-
ered by 14-10129.5. Agricultural debts are governed
by 6-9-101 to 6-9-106. A special statutory provision
exists for ADR of disputes involving mobile homes
under 38-12-216. The UAA has been adopted under
13-22-201 to 13-22-223. Dispute resolution in general
is covered by 13-22-301 to 13-22-310.
CONNECTICUT: Labor disputes are covered under
Connecticut Statutes 31-91 to 31-100, 5-276 and 5-
276a. Family disputes are resolved under 46b-59a.
Public Act 87-316 Section 8 (1987) is covered under
42-182.
DISPUTE RESOLUTION ALTERNATIVES—ARBITRATION
398 GALE ENCYCLOPEDIA OF EVERYDAY LAW
DELAWARE: Delaware’s Code covers labor disputes
under Title 14 Section 4002 and 4014, Title 19 Sec-
tion 110 and 113, and Title 19 Section 1614. Automo-
bile warranties are covered under Title 6 Section
5007.
FLORIDA: Florida Statutes Annotated 448.06 and
681.110(4)9d) cover labor disputes. Family disputes
are addressed under 44.101, 61.183, 39.42, 39.427 to
39.429, 39.436, 39.44, and 39.442. Automobile
WARRANTY disputes are provided for under 681.108
and 681.111 Mobile home disputes fall under
723.037 and 723.038. The state maintains ‘‘citizen
dispute SETTLEMENT centers’’ for ADR assistance
under 44.201.
GEORGIA: Labor disputes are covered under Geor-
gia Code 34-2-6(5), 25-5-1 to 25-5-14, 45-19-32, and
45-19-36. Public employee grievances and ‘‘unlawful
practices’’ labor arbitrations are mandated under 45-
19-36.
HAWAII: Hawaii Revised Statutes 371-10, 98-
11(b)(1)(d), 89-12(a) and (b), 380-8, and 377-3 cover
ADR for labor disputes. Automobile warranty dis-
putes are covered under 490-2 and 313-1. Medical
CONCILIATION is addressed by 671-11 to 671-20. There
is a special statutory provision for ADR of geothermal
resources disputes under 205-5.1. International dis-
putes are covered by 1988 Haw. Sess. Laws, Ch. 186,
Sections 1-9.
IDAHO: Idaho Statutes Title 7, Special Proceedings,
Chapter 9 adopts the UAA. Idaho Section 44-106 gov-
erns labor disputes.
ILLINOIS: Labor disputes are covered by Illinois
Compiled Statutes, Ch. 48, paragraphs 1612, v1706,
1712, 1713(b); and Ch. 10, paragraph 26. Family dis-
putes are covered by Ch. 40, paragraph 602.1 and
607.1. Automobile warranty disputes are covered by
Ch.121.5, paragraph 1204(4). Disputes involving
PUBLIC UTILITIES fall under Ch. 11, paragraph 702.12a.
Illinois operates several nonprofit community dis-
pute resolution centers under the auspices of Ch. 37,
paragraph 851.1 to 856.
INDIANA: Labor disputes are covered under Indiana
Code 5-14-1.5-6.5(2), 22-1-1-8(d), 22-6-1-7, 20-7.5-1-9
to 20-7.5-1-13. Family disputes are covered under 31-
1-24-1 to 31-1-24-9, 31-1-23-5 to 31-1-23-9. Automo-
bile warranties are handled under 24-5-13-19. CIVIL
RIGHTS disputes are covered under 22-9-1-6. CONSUM-
ER PROTECTION disputes are covered under 4-6-9-
4(a)(4). There is a special Code provision for water
rights disputes under 13-2-1-6(2).
IOWA: Labor disputes are covered under Iowa Code
20.19 to 20.20 and 679B to 679B.27. Family disputes
are covered under 598.16 and 598.41(2). Agricultural
debts are handled under 654a1 to 654a14. Civil
Rights disputes are covered under 601A.15(3)(c). In-
formal dispute resolution in general is addressed
under 679.1 to 679.14.
KANSAS: Kansas Statutes 5-401 to 5-422 expressly
adopt the UAA. Labor disputes are covered under
Kansas Statutes 44-817, 44-819(j), 44-820(c), 44-826,
44-828, 72-5413(h), 72-5427, 72-5429, 72-5430(b)(7),
72-5430(c)(7), 75-4322, 75-4323, 75-4332, and 75-
4333. The ADR provisions for family disputes are cov-
ered under 23-601 to 23-607 and 23-701. Automobile
warranties are handled under 50-645(e). Civil Rights
disputes are covered under 44-1001 to 44-1005.
There is a special ADR provision for barbershop busi-
ness disputes under 65-1824(4).
KENTUCKY: Kentucky has extensive ADR provisions
in its Kentucky Revised Statutes (KRS). The UUAA
has been adopted under KRS 417.045 to 417.240.
Labor disputes are covered under KRS 337.425,
345.080, 336.010, 336.020, 336.140, and 336.151 to
336.156. Family disputes are covered under KRS
403.140(b) and 403.170. Automobile warranties are
handled under KRS 367.860 to 367.880. Civil Rights
disputes are covered under KRS 344.190 to 344.290
and 337.425. Education matters are covered under
KRS 165A.350 and 360. Disputes involving the pro-
duction and distribution of agricultural products are
covered under KRS 260.020.030(e) and
260.020.040(l) There is a special provision for com-
munity agency funding at KRS 273.451.
LOUISIANA: Labor disputes are covered under Loui-
siana Statutes, Title 23, Section 6. Family disputes are
covered under Title 9, Sections 351 to 356. Automo-
bile warranties are handled under Title 23, Section
1944. Housing civil rights matters are addressed
under Title 40, Section 597. Barbershop disputes are
covered under Title 37, Section 381. There is a spe-
cial provision for a Medical Review Panel at Title 40,
Section 1299-47.
MAINE: Maine’s statutes provide ADR for the follow-
ing areas of dispute: Labor disputes are covered
under Title 26, Section 1026, 965, 931 to 936, 979-D,
1281, 1282, and 1285. Family disputes are covered
under Title 4, Section 18 (1 to 5), Title 19, Section
214 (1,4), Title 19, Section 518 (1,2, and 4), Title 19,
Section 656,665, and Title 19, Section 752(4). Auto-
mobile warranties are handled under Title 10, Sec-
tion 1165. There is a special ADR provision for pro-
DISPUTE RESOLUTION ALTERNATIVES—ARBITRATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 399
fessional NEGLIGENCE claims (malpractice) under
Title 24, Sections 2851 to 2859.) Disputes involving
the production and distribution of agricultural prod-
ucts are covered under Title 13, Sections 1956 to
1959.
MARYLAND: Labor disputes are covered under Mary-
land Code Article 6, Section 408(d) and Article 89,
Sections 3, 9, and 11. Maryland also has an employ-
ment agency dispute ADR provision under Article 56,
Section 169. The UAA has been adopted in its origi-
nal text under gcj, Sections 3-201 to 3-235.
MASSACHUSETTS: Labor disputes are covered
under Chapter 150, Sections 1 to 3 of the General
Laws. There is an ADR provision for cable television
disputes under Chapter 166A, Section 16. A Commu-
nity Mediation provision is covered under Chapter
218, Section 43E.
MICHIGAN: ADR provisions for labor disputes are
covered under MCL 432.1, 423.9 to 423.9c, 423.25,
and 423.207. Family disputes are covered under MCL
552.64, 552.505, 552.513 to 552.527, and 552.531. Au-
tomobile warranties (regarding service) are handled
under MCL 257.1327. A special ADR provision for
general tort actions is contained under MCL
600.4951 to 600.4969. MEDICAL MALPRACTICE ADR is
provided for under 600.4901 to 600.4923, and more
generally under 600.4951 to 600.4969. Disputes in-
volving the production and distribution of agricultur-
al products are covered under 290-714. A small
claims conciliation statute is contained under MCL
730.147 to 730.155.
MINNESOTA: Minnesota has adopted the UAA under
Statute Section 572.08 to 572.30. Labor disputes are
covered under Minnesota Statutes 179.01, 179.03,
179.04, 179.06, 179.14, 179.15, and 179.02 to 179.09.
Family disputes are covered under 518.167 and
518.619. Automobile warranties are handled under
325F.665. Civil Rights disputes are covered under
63.01 and 63.04 to 63.06. Conciliation Courts are pro-
vided for under 487.30. Civil Mediation is outlined
under 572.31 to 572.40. Civil litigation ADR is cov-
ered separately under 484.74. There is also a statuto-
ry ADR provision for community dispute resolution
programs under 494.01 to 494.04. A special provision
for debtor-creditor mediation is found under 572.41,
and worker’s compensation disputes under
176.351(2a). Disputes involving the production and
distribution of agricultural products are covered
under 17.692, 17.695, 17.697 to 17.701. Environmen-
tal issues are covered under 40.22, 40.23(3), 40.242,
40.244, 221.035F, 221.036(9), 116.072(1), and
116.072(6) to 116.072(8). Environmental waste man-
agement issues are covered separately under
115A.29(2)(a) and 115A.38(2).
MISSISSIPPI: Automobile warranties disputes are
handled under Code provisions, 63-17-159 and 63-
17-163. Agricultural debt is addressed under 69-2-43
to 69-43-51.
MISSOURI: Labor disputes are covered under Stat-
utes 290.400, 290.420, 290.430, and 295.030 to
290.190, AS IS 105.525. Civil Rights disputes are cov-
ered under 213.010(1), 213.020, and 213.075.
MONTANA: Labor disputes are covered under Mon-
tana Code 39-31-307. Family disputes are covered
under 26-1-81 and 40-3-111 to 40-3-127. Agricultural
debt ADR is handled under 80-13-191 and 80-13-201
to 80-13-214. Civil Rights disputes are covered under
49-2-501(1), 49-2-504 to 49-2-506, and 49-2-601.
Worker’s compensation disputes are covered under
39-71-2401 to 39-71-2411. There is a special Code
provision for special education matters under 20-7-
462(4). Medical malpractice panels are covered
under 27-6-101 to 27-6-704. Disputes involving the
production and distribution of agricultural products
are covered under 80-1-101 and 80-11-103(9). The
UAA has been adopted under MCA 27-5-111 to 27-5-
324.
NEBRASKA: The UAA has been expressly adopted
under Nebraska Statutes, Sections 25-2601 to 25-
2622. Family disputes are covered under 42-801 to
42-823, and 42-360. Agricultural debt is covered
under 2-4801 to 2-4816. Civil rights disputes are cov-
ered under 20-113.01, 20-114(1)(2).
NEVADA: Nevada has copious provisions for ADR in
its statutes. Labor disputes are covered under
288.190, 288.200, 288.205, 288.215, 288.220, 288.270,
614.010, and 614.020. Automobile warranties are
handled under 598.761. Civil Rights disputes are cov-
ered under 233.020 to 233.210 and 244.161. Con-
sumer credit and civil rights disputes are covered
under 598B.150. Educational dispute ADR is found
under 394.11, and mobile home disputes are han-
dled under 118B.024, 118B.025, and 118B.260.
NEW HAMPSHIRE: Labor disputes are covered by
New Hampshire Statutes 273-A:1, 273-A:12, 273.215,
273.220, 273.270, 614.010 and 614.020. Automobile
warranties are handled under 357.0:4.
NEW JERSEY: Labor disputes are covered under 34-
13A-4 to 34-13A-16 and 34-13A-15. Civil rights dis-
putes are covered under 52:27E-40, 52:27E-41. A gen-
DISPUTE RESOLUTION ALTERNATIVES—ARBITRATION
400 GALE ENCYCLOPEDIA OF EVERYDAY LAW
eral ADR provision is found at 2A:23A-1 to 2A:23A-19.
Disputes involving the developmentally disabled are
covered under 52:27E-40 and 41. Home warranties
are covered under 46:3 B-9. Radioactive waste issues
are handled under 32:31-5.
NEW MEXICO: Family disputes are covered under
40-12-1 to 40-12-6, and 40-4-9.1(B) and (J)(5). Auto-
mobile warranties are handled under 57-16A-6. Small
claims are handled under 34-8A-10.
NEW YORK: Labor disputes are covered under Sec-
tions 205 and 209 for civil service, and Sections 750
to 760 for labor. Family disputes are covered under
Sections 911-926. Automobile warranties are handled
under Section 198-a (general business) Tax matters
fall under Section 170(3a). Community Dispute Res-
olution Programs are governed by Sections 849-a to
849-g (judicial law).
NORTH CAROLINA: The UAA has been expressly
adopted under Statutes Section 1-567.1 to 1-567.20.
Labor disputes are covered under Statutes 95-32 to
95-36. Automobile warranties are handled under 20-
351.7. Civil Rights disputes are covered under 143-
422.3 (unemployment) or 41A-6(6), 41A-7(a), 41A-8
(housing).
NORTH DAKOTA: The UAA is found under Code
Sections 32-29.2.01 to 39-29.2.20. Family disputes are
covered under Code Sections 14-09.1-01 to 14-09.1-
08, and 27-05.1-01 to 27-05.1-18. Automobile warran-
ties are handled under 51-07-18(3). A provision for
ADR of agricultural debt can be found at 6.09.10-01
to 10-09. Debtor-creditor disputes are covered under
11-26-01 to 11-26-08.
OHIO: Lengthy provisions under Ohio’s Code for
labor disputes are covered under 4117.02(A), (E),
(H)(7), (N),4117.14(A) and (C). Family disputes are
covered under 3117.01 to 08. Automobile warranties
are handled under 1345.75 and 77. Civil rights dis-
putes (housing matters) are covered under
1901.331.
OKLAHOMA: The UAA has been adopted in its origi-
nal text at Title 15, Sections 801 to 818. Automobile
warranties are handled under Statute Title 15, Sec-
tion 901(f). Civil Rights disputes are covered under
Title 25, Sections 1505, 1704, and 1705. 22-9-1-6.
General dispute resolution programs are covered
under Title 12, Sections 1801 to 1813.
OREGON: Oregon’s statutes covering labor disputes
are found at 662.405 to 455, 662.705(4), 662.715,
662.785, and 243.650 et seq. Family disputes are cov-
ered under 107.510 to 107.615, 107.755 to 107.795,
and 107.179(4).
PENNSYLVANIA: Pennsylvania Statutes, Title 42, Part
VII, Chapter 73, Subchapters A, B, and C cover statu-
tory arbitration, common law arbitration, and judicial
arbitration respectively. Title 43, Section 211.31 to
39, and Title 43, Section 213.13 cover general labor
disputes, as well as Title 43, Section 1101..801,.802,
and Title 43, Section 217.3. Automobile warranties
are handled under Title 73, Section 1959. Civil Rights
disputes are covered under Title 43, Section 957(i)
(unemployment) or Title 43, Section 959(a) to (c)
(employment). Eminent domain issues are covered
under Title 52, Section 1406.15.
RHODE ISLAND: Labor disputes are covered under
General Law 28-10-1, 28-9.4-10, 28-9.4-17, and 28-7-
10. ADR for consumer issues is found at 42-42-5 to
42-42-7.
SOUTH CAROLINA: Codified laws in South Carolina
include ADOPTION of the UAA under Title 15, Chapter
48. ADR provisions for labor disputes are found
under 41-10-70 (wage mediation) and 41-17-10. Civil
rights disputes are covered under 1-13-70 and 1-13-
90 (employment). Consumer disputes are covered
under 37-6-117. Employment grievances are covered
under 8-17-360 and 8-17-370.
SOUTH DAKOTA: South Dakota has ADR for labor
disputes under 60-10-1 to 60-10-3.
TENNESSEE: The UAA has been adopted under Stat-
utes 29-5-301 to 29-5-320. Bank patrons may resolve
their disputes under Tennessee’s Code 45-1-301 to
45-1-309.
TEXAS: Labor disputes are covered under Article
5154c-1, Section 9. ADR procedures in general are
covered under Article 4590f-1, title 7, 154.001 to
154.073 Section 3.07(d).
UTAH: Family disputes are covered under 30-3-16.2
to 30-3-17.1, 30-3-4.1, and 30-3-4.3. Automobile war-
ranties are handled under 30-20-7. Medical malprac-
tice resolution is provided for under 78-14-1, 78-14-2,
and 78-14-12 to 16.
VERMONT: Labor disputes are covered under Ver-
mont Code Title 21, 924 and 925, Title 3, 8.25, and
Title 21, 521 to 554. Special education matters are
covered by Title 16, Section 2941, 2959.
VIRGINIA: The UAA is found under Code Section
8.01-581.01 to 8.01-581.016. Labor disputes are cov-
DISPUTE RESOLUTION ALTERNATIVES—ARBITRATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 401
ered under Virginia’s Code, 40.1-70 to 40.1-75. Fami-
ly disputes are covered under 16.1-69.35 and 16.1-
289.1. Automobile warranties are handled under
59.1-207.15. Civil mediation programs are found
under 16.1-69.35(d) There is a special Code provi-
sion for local government dispute mediation at 15.1-
945.1 et seq.
WASHINGTON: Labor disputes are covered under
49.08.010, 41.56.430, 41.56.440, 41.56.450, and
41.59.120. Family disputes are covered under
26.09.015. Automobile warranties are handled under
19.118.150. Civil Rights disputes are covered under
49.60.130. Dispute resolution centers are found at
7.75.010 to 7.75.100
WEST VIRGINIA: West Virginia has an ADR provision
for labor disputes at Code Section 21-1A-1. There is
also an ADR provision for automobile warranty dis-
putes at 46A-6A-8 and 46A-6A-9.
WISCONSIN: Wisconsin Statutes cover ADR for labor
disputes under 101.24, 111.11, 111.39, 111.53-56,
111.70, and 111.77. Family disputes are covered
under 753.016 (conciliation), 767.081-82, 767.001(3)
and (4), 767.11, and 767.327(1) and (2). Automobile
warranties are handled under 218.015(3) to (7). Civil
Rights disputes are covered under 118.20 (employ-
ment), 230.85 (employment), and 1419 (governor
and mediation).
WYOMING: Automobile warranties are handled
under Statute 40-17-101(a) and (f). Agricultural debt
is covered under 11-41-101 to 110. Environmental is-
sues are handled under 35-11-701(a) to (c).
Additional Resources
‘‘A Brief Overview of the American Arbitration Associa-
tion.’’ Available at http://gov.news/press/2001pres/
01fsprivacy.html
Civil Justice Reform Act of 1990. 28 U.S.C. Section 471 et
seq.
‘‘’’Courts Differ on Arbitrability of Time Limitations.’’ Riv-
kin, David W. Available at http://www.ilr.cornell.edu/
alliance/courts_differ_on_arbitrability_o.htm.
How and When to Be Your Own Lawyer. Schachner, Rob-
ert W., Avery Publishing Group, Inc.,1995.
Law for Dummies. Ventura, John, IDG Books Worldwide,
Inc. 1996.
Uniform Arbitration Act. National Conference of Commis-
sioners on Uniform State Laws. 2000. Available at http://
gov.news/press/2001pres/01fsprivacy.html
U. S. Code, Title 9, Chapter 1, et seq: The Federal Arbitra-
tion Act. Available at http://www4.law.cornell.edu/
uscode/9/.
Organizations
American Arbitration Association (AAA)
335 Madison Avenue, Tenth Floor
New York, NY 10017-4605 USA
Phone: (212) 716-5800
Fax: (212) 716-5905
URL: http://www.adr.org
American Bar Association (ADR Section)
740 15th Street, NW
Washington, DC 20005 USA
Phone: (202) 992-1000
DISPUTE RESOLUTION ALTERNATIVES—ARBITRATION
402 GALE ENCYCLOPEDIA OF EVERYDAY LAW
DISPUTE RESOLUTION ALTERNATIVES
MEDIATION
Sections within this essay:
• Background
• Voluntary versus Mandatory Mediation
• The Mediation Process
• Deciding to Mediate a Dispute
- Finding an Appropriate Forum and
Mediator(s)
- Checklist
• Uniform Mediation Act
• Federal Mediation
• State Mediation Provisions
• Additional Resources
Background
MEDIATION refers to one of several methods used
to resolve legal disputes other than through formal
court trial. Mediation and ARBITRATION constitute
methods of ‘‘alternative dispute resolution’’ (ADR).
Arbitration is used as a substitute for trial, but media-
tion merely assists the parties in reaching their own
resolution of a disputed matter. Instead of a judge or
jury rendering a judgment or verdict, or an arbitrator
rendering a binding decision, a ‘‘mediator’’ merely
facilitates open discussion and tries to assist the par-
ties in resolving their differences on their own. Medi-
ation thus avoids the ‘‘win–lose’’ set-up of a trial or
arbitration.
Those who go through formal mediation tend to
achieve SETTLEMENT through their own spirit of mu-
tual compromise. For that reason, mediation may be
particularly helpful or appropriate in situations
where parties have an ongoing relationship (neigh-
bors, business associates, divorcing parents of minor
children, etc.) and do not want that relationship de-
stroyed by the adversarial process of trial. In addition
to being less adversarial than trial or arbitration, me-
diation tends to be less expensive, faster, and non-
binding.
Mediation also may be used as a pre-trial initiative
to provide a way for litigating parties to gauge the rel-
ative strengths and weaknesses of their claims and
defenses before they get to the point of trial. This
does not mean that mediation is used as a practice
trial; rather, it represents a joint effort in GOOD FAITH
to resolve the matter before it gets to trial. In this
form of mediation, after parties consider all sides to
the dispute, a recommendation for settlement is
given to the parties for their consideration. If the par-
ties are unwilling to compromise their respective po-
sitions, and no settlement of the dispute results, at
least the mediation experience will have given them
a better understanding of how the dispute may or
may not play out in court.
Voluntary versus Mandatory Mediation
Mediation of a dispute may occur as a result of vol-
untary private agreement, community program, or
court order (which includes STATUTORY mediation of
some matters prior to trial). However, the term
‘‘mandatory mediation’’ may be misleading. It mere-
ly means that the parties are ‘‘forced to the table’’ to
try to resolve their dispute prior to trial. It does not
mean that they are required to settle their dispute;
it merely requires that they attempt to do so in good
GALE ENCYCLOPEDIA OF EVERYDAY LAW 403
faith. The decision to accept the outcome of the me-
diation and settle the matter remains voluntary. If
the attempt at mediation fails to resolve the dispute,
the parties may continue to litigate the matter.
A voluntary agreement to mediate a dispute may
pre-exist the dispute, as in a private contract provi-
sion in which the parties agree to mediate any dis-
pute that may arise in the future. Alternatively, a deci-
sion to mediate may come about after a dispute has
already occurred and the parties are merely consid-
ering a way to resolve the matter without going to
court.
Statutory mandatory mediation usually governs
disputes concerning certain subject matters, such as
labor relations, family matters (e.g., CUSTODY dis-
putes), or consumer matters. Many states also have
mandatory mediation provisions for civil disputes in
which the dollar amount in controversy falls within
a certain range. In those circumstances, mediation
becomes an integral part of ‘‘pre-trial procedure,’’
promoting the resolution of the dispute at a stage be-
fore the cost of LITIGATION has begun to accrue.
The Mediation Process
Unlike arbitration, mediation is not similar to a
trial. In voluntary mediation, there is no ‘‘decision,’’
judgment, or verdict rendered. Rather, the neutral
mediator acts as a go-between and does not take
sides or advocate the cause or defense of any party.
The setting is more often informal than not, and the
parties may or may not be represented by attorneys
(usually, court-ordered mediations are handled by
the attorneys representing the parties). Often, the
mediation HEARING takes place in a conference room
at a local hotel, court building, or state BAR
ASSOCIATION.
The mediation hearing itself differs substantially
from a trial, in that there is generally no formal pre-
sentation of EVIDENCE, and generally no witness
TESTIMONY. Rather, each party summarizes its posi-
tion in written papers filed with the mediator(s)
prior to the mediation. In the written summary, each
party describes the evidence it intends to produce at
trial, if mediation is unsuccessful. The mediation pa-
pers may include photographs, affidavits from wit-
nesses who will appear at trial, formal opinions or re-
ports from experts, etc. There is a summarized
statement of the issues and the respective positions
of the parties, as well as factual/legal arguments iden-
tifying the strengths and weaknesses of the opposing
position(s). The mediator(s) will review the pre-
mediation documents in order to become familiar
with the issues and arguments, and thus be able to
facilitate settlement. It is important that mediations
are kept confidential, either by express agreement or
by law, so as not to affect trial of the matter if media-
tion is unsuccessful.
Most often, there is a single, neutral mediator who
facilitates and encourages open discussion and nego-
tiation between the parties. However, in court or-
dered mediation, a panel of mediators may be select-
ed. In many states that utilize mediation panels, the
preferred number of mediators is three, one of
whom is neutral in role and the other two serve as
advocates for the causes of the opposing parties. In
such cases, the mediators, after listening to both or
all sides of the dispute, render a mediation recom-
mendation (which sometimes is referred to as a me-
diation ‘‘award’’ or a mediation ‘‘decision,’’ but in
fact is not binding). The parties will have a set num-
ber of days to accept or reject the recommendation
of the mediation panel.
In many states that have court-ordered mediation,
there are consequences for rejecting mediation rec-
ommendations, and/or for failure to negotiate in
good faith. For example, if a party rejects a media-
tor’s recommended ‘‘award’’ of a certain dollar
amount to settle the case, and instead goes on to
trial, that party must succeed at trial and/or improve
his/her position with a substantially better verdict
than that recommended in mediation. In other
words, the rejection of a mediation settlement offer
must be premised on a good faith belief that the
party has a reasonable chance of substantially im-
proving its position at trial. If the party fails to do bet-
ter at trial, a monetary PENALTY for rejecting the rec-
ommended mediation amount may be imposed. The
justification for this rule is that by rejecting media-
tion, the rejecting party has caused the other party
to sustain the cost of trial even though the rejecting
party has not ultimately obtained a better result at
trial. It follows that the rejecting party should bear
the cost of this.
Deciding to Mediate a Dispute
For individuals who have decided to attempt reso-
lution of their disputes through private mediation,
the following may prove helpful.
DISPUTE RESOLUTION ALTERNATIVES—MEDIATION
404 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Finding an Appropriate Forum and
Mediator(s)
The local district court is a good starting source
for mediation referral. Some state and local (attor-
ney) bar associations also offer mediation programs.
The non-profit National Association for Community
Mediation is comprised of member community orga-
nizations across the nation that provide local media-
tors and forums for the resolution of local disputes.
Often, the mediators may belong to such entities as
the Better Business Bureau or local chambers of
commerce, etc. and are quite familiar with the issues
presented for resolution.
If the dispute involves more national interests or
parties, individuals should consult one of the more
established mediation providers, such as the Ameri-
can Arbitration Association (AAA) (which also han-
dles mediations and supplies mediators). Most of
these providers will be able to supply individuals
with a list of mediators, a set of rules for the media-
tion, and a date and place for the mediation hearing.
If the forum individuals have chosen does not
provide a mediator, but rather requests the parties
to select the mediator(s), they should consider,
among other factors:
• The appropriate experience
• The appropriate training
• The appropriate site (neutral)
• The fee schedule
• The ‘‘neutrality’’ (absence of BIAS or CONFLICT
OF INTEREST on the part of the mediator)
If the parties cannot agree on a mediator, the gen-
eral procedure is to alternately strike names from a
list (either provided by an outside source or created
by the parties) until only a single name remains.
Other alternatives (for panel mediation) include
each party choosing any person at all (whether or
not on a list) and then both parties choosing a neu-
tral third mediator from the formal list.
Checklist
Once the mediation date, time, place, and media-
tor(s) have been decided upon, as well as an agreed
procedure and/or rules, the following should assist
individuals in completing the process:
• People should double check to make sure
that confidentiality provisions have been in-
cluded in their mediation agreement.
• They should make sure that, prior to the me-
diation, the subject of allocating the costs of
mediation has been resolved.
• If the type of mediation allows the appear-
ance of witnesses, individuals should double
check to make sure everyone knows when
and where to be.
• They should ensure that the person who has
authority to settle the matter will be present
at the mediation hearing (if different from
the actual parties, such as a representative
from an insurance company).
• They should make sure that their mediation
summary contains a concise statement of is-
sues and positions.
• Try to identify both weaknesses and
strengths of opposing positions. They
should build on one; diminish the other.
• They should know in advance the least fa-
vorable offer they are willing to accept, and
be prepared to consider even less than that
if surprise testimony or disclosure of previ-
ously unknown facts alters their present po-
sition.
Uniform Mediation Act
The Uniform Mediation Act (UMA), drafted and
approved for ADOPTION in August 2001 by the Nation-
al Conference of Commissioners on Uniform State
Laws, was endorsed by the American Bar Association
in early 2002. However, it will take several years for
introduction and adoption of the UMA by each
state’s legislature because legal rules affecting media-
tion (such as those regarding confidentiality or legal
privilege) are spread out in more than 2,500 existing
state statutes. Notwithstanding, in a growing global
economy that enjoys increased interstate commerce
through Internet business, uniformity and standard-
ization of procedure may be a desirable objective.
Federal Mediation
The Alternative Dispute Resolution Act of 1998
(ADRA) (28 USC 651 et seq.) mandates that courts
establish and authorize the use of ADR, including
mediation and arbitration, in all civil actions. Courts
maintain their individual discretion to decide at what
stage in the litigation process a court offers media-
tion or other ADR to the parties. Local rules establish
ADR procedure in the federal courts.
DISPUTE RESOLUTION ALTERNATIVES—MEDIATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 405
In the area of statutory ADR, the Federal Media-
tion and CONCILIATION Service was created by Con-
gress in 1947 as an independent agency poised to as-
sist and promote sound labor-management relations.
It offers ADR services in a variety of formats, includ-
ing dispute mediation and preventive (issue) media-
tion.
The U. S. Equal Employment Opportunity Com-
mission’s (EEOC) mediation program began as a
pilot experiment in 1991 in four field offices. By 1999,
the EEOC’s proposed budget included a $13 million
allocation for the expansion of its mediation pro-
gram. EEOC continues to develop and train internal
mediators employed by EEOC s well as external me-
diators hired on a contract basis, to promote media-
tion as a possible resolution for some EEOC claims.
The federal government also encourages media-
tion and arbitration within its own ranks. Federal
agencies are free to set up their own procedural ADR
programs for the handling of both internal and exter-
nal disputes. The Administrative Dispute Resolution
Act of 1996 provides a mediation forum for handling
disputes within agencies, or between citizens and
agencies (claims against the government).
State Mediation Provisions
The following state laws provide for ADR (media-
tion/arbitration) for certain types of disputes:
ALABAMA: Alabama Code, Ch. 25-7-4 applies to labor
disputes.
ALASKA: Alaska Statutes 42.40.840 and 23.40.190 ad-
dress labor disputes. Family disputes are governed
by 25.20.080 and 25.24.080. Disputes involving auto-
mobile warranties are governed by 45.45.355.
ARIZONA: Statutory provisions for arbitration/
mediation of family disputes is covered under 25-
381.01 to 25-381.24. Automobile warranties are cov-
ered under 44-1265.
ARKANSAS: Arkansas Statutes 11-2-201 to 11-2-206
governs labor disputes.
CALIFORNIA: California’s Code contains extensive
provisions for the arbitration and/or mediation of
many types of disputes. Labor disputes are addressed
under Sections 65, 66, and 3518. Family disputes are
covered in Sections 5180 to 5183. Education matters
are covered by 48260.6, 48263, 48263.5 (truancy),
and 56503 (special education). There is a special pro-
vision for the arbitration of cable TV franchise dis-
putes under 53066.1(n)(1). Environmental regulato-
ry disputes, including issues involving pesticides, are
covered under 13127(c)(1). Water rights disputes are
handled under 1219. Community disputes of a busi-
ness or professional nature are covered under 465 to
471.5.
COLORADO: Colorado’s statutes provide ADR for
labor disputes under 8-3-113. Family matters are cov-
ered by 14-10129.5. Agricultural debts are governed
by 6-9-101 to 6-9-106. A special statutory provision
exists for ADR of disputes involving mobile homes
under 38-12-216. Dispute resolution in general is
covered by 13-22-301 to 13-22-310.
CONNECTICUT: Labor disputes are covered under
Connecticut Statutes 31-91 to 31-100, 5-276 and 5-
276a. Family disputes are resolved under 46b-59a.
Public Act 87-316 Section 8 (1987) is covered under
42-182.
DELAWARE: Delaware’s Code covers labor disputes
under Title 14 Section 4002 and 4014, Title 19 Sec-
tion 110 and 113, and Title 19 Section 1614. Automo-
bile warranties are covered under Title 6 Section
5007.
FLORIDA: Florida Statutes Annotated 448.06 and
681.110(4)9d) cover labor disputes. Family disputes
are addressed under 44.101, 61.183, 39.42, 39.427 to
39.429, 39.436, 39.44, and 39.442. Automobile
WARRANTY disputes are provided for under 681.108
and 681.111 Mobile home disputes fall under
723.037 and 723.038. The state maintains ‘‘citizen
dispute settlement centers’’ for ADR assistance
under 44.201.
GEORGIA: Labor disputes are covered under Geor-
gia Code 34-2-6(5), 25-5-1 to 25-5-14, 45-19-32, and
45-19-36. Public employee grievances and ‘‘unlawful
practices’’ labor arbitrations are mandated under 45-
19-36.
HAWAII: Hawaii Revised Statutes 371-10, 98-
11(b)(1)(d), 89-12(a) and (b), 380-8, and 377-3 cover
ADR for labor disputes. Automobile warranty dis-
putes are covered under 490-2 and 313-1. Medical
conciliation is addressed by 671-11 to 671-20. There
is a special statutory provision for ADR of geothermal
resources disputes under 205-5.1. International dis-
putes are covered by 1988 Haw. Sess. Laws, Ch. 186,
Sections 1-9.
IDAHO: Idaho Code Section 44-106 governs labor
disputes.
DISPUTE RESOLUTION ALTERNATIVES—MEDIATION
406 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ILLINOIS: Labor disputes are covered by Illinois
Compiled Statutes, Ch. 48, paragraphs 1612, v1706,
1712, 1713(b); and Ch. 10, paragraph 26. Family dis-
putes are covered by Ch. 40, paragraph 602.1 and
607.1. Automobile warranty disputes are covered by
Ch.121.5, paragraph 1204(4). Disputes involving
PUBLIC UTILITIES fall under Ch. 11, paragraph 702.12a.
Illinois operates several nonprofit community dis-
pute resolution centers under the auspices of Ch. 37,
paragraph 851.1 to 856.
INDIANA: Labor disputes are covered under Indiana
Code 5-14-1.5-6.5(2), 22-1-1-8(d), 22-6-1-7, 20-7.5-1-9
to 20-7.5-1-13. Family disputes are covered under 31-
1-24-1 to 31-1-24-9, 31-1-23-5 to 31-1-23-9. Automo-
bile warranties are handled under 24-5-13-19. CIVIL
RIGHTS disputes are covered under 22-9-1-6. CONSUM-
ER PROTECTION disputes are covered under 4-6-9-
4(a)(4). There is a special Code provision for water
rights disputes under 13-2-1-6(2).
IOWA: Labor disputes are covered under Iowa Code
20.19 to 20.20 and 679B to 679B.27. Family disputes
are covered under 598.16 and 598.41(2). Agricultural
debts are handled under 654a1 to 654a14. Civil
Rights disputes are covered under 601A.15(3)(c). In-
formal dispute resolution in general is addressed
under 679.1 to 679.14.
KANSAS: Labor disputes are covered under Kansas
Statutes 44-817, 44-819(j), 44-820(c), 44-826, 44-828,
72-5413(h), 72-5427, 72-5429, 72-5430(b)(7), 72-
5430(c)(7), 75-4322, 75-4323, 75-4332, and 75-4333.
The ADR provisions for family disputes are covered
under 23-601 to 23-607 and 23-701. Automobile war-
ranties are handled under 50-645(e). Civil Rights dis-
putes are covered under 44-1001 to 44-1005. There
is a special ADR provision for barbershop business
disputes under 65-1824(4).
KENTUCKY: Kentucky has extensive ADR provisions
in its Kentucky Revised Statutes (KRS). Labor dis-
putes are covered under KRS 337.425, 345.080,
336.010, 336.020, 336.140, and 336.151 to 336.156.
Family disputes are covered under KRS 403.140(b)
and 403.170. Automobile warranties are handled
under KRS 367.860 to 367.880. Civil Rights disputes
are covered under KRS 344.190 to 344.290 and
337.425. Education matters are covered under KRS
165A.350 and 360. Disputes involving the production
and distribution of agricultural products are covered
under KRS 260.020.030(e) and 260.020.040(l) There
is a special provision for community agency funding
at KRS 273.451.
LOUISIANA: Labor disputes are covered under Loui-
siana Statutes, Title 23, Section 6. Family disputes are
covered under Title 9, Sections 351 to 356. Automo-
bile warranties are handled under Title 23, Section
1944. Housing civil rights matters are addressed
under Title 40, Section 597. Barbershop disputes are
covered under Title 37, Section 381. There is a spe-
cial provision for a Medical Review Panel at Title 40,
Section 1299-47.
MAINE: Maine’s statutes provide ADR for the follow-
ing areas of dispute: Labor disputes are covered
under Title 26, Section 1026, 965, 931 to 936, 979-D,
1281, 1282, and 1285. Family disputes are covered
under Title 4, Section 18 (1 to 5), Title 19, Section
214 (1,4), Title 19, Section 518 (1,2, and 4), Title 19,
Section 656,665, and Title 19, Section 752(4). Auto-
mobile warranties are handled under Title 10, Sec-
tion 1165. There is a special ADR provision for pro-
fessional NEGLIGENCE claims (MALPRACTICE) under
Title 24, Sections 2851 to 2859.) Disputes involving
the production and distribution of agricultural prod-
ucts are covered under Title 13, Sections 1956 to
1959.
MARYLAND: Labor disputes are covered under Mary-
land Code Article 6, Section 408(d) and Article 89,
Sections 3, 9, and 11. Maryland also has an employ-
ment agency dispute ADR provision under Article 56,
Section 169.
MASSACHUSETTS: Labor disputes are covered
under Chapter 150, Sections 1 to 3 of the General
Laws. There is an ADR provision for cable television
disputes under Chapter 166A, Section 16. A Commu-
nity Mediation provision is at Chapter 218, Section
43E.
MICHIGAN: MCR 2.403 (Michigan Court Rules) cov-
ers court-ordered mediations of civil actions involv-
ing money damages or division of property. Domes-
tic relations mediation is governed by MCR 3.211.
Mediation of health care matters is covered under
Michigan statutes, MCL 600.4901 to 600.4923. ADR
provisions for labor disputes are covered under MCL
432.1, 423.9 to 423.9c, 423.25, and 423.207. Disputes
involving the production and distribution of agricul-
tural products are covered under 290-714. A small
claims conciliation STATUTE is contained under MCL
730.147 to 730.155.
MINNESOTA: Labor disputes are covered under Min-
nesota Statutes 179.01, 179.03, 179.04, 179.06,
179.14, 179.15, and 179.02 to 179.09. Family disputes
are covered under 518.167 and 518.619. Automobile
DISPUTE RESOLUTION ALTERNATIVES—MEDIATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 407
warranties are handled under 325F.665. Civil Rights
disputes are covered under 63.01, and 63.04 to 63.06.
Conciliation Courts are provided for under 487.30.
Civil Mediation is outlined under 572.31 to 572.40.
Civil litigation ADR is covered separately under
484.74. There is also a statutory ADR provision for
community dispute resolution programs under
494.01 to 494.04. A special provision for debtor-
creditor mediation is found under 572.41, and work-
er’s compensation disputes under 176.351(2a). Dis-
putes involving the production and distribution of
agricultural products are covered under 17.692,
17.695, 17.697 to 17.701. Environmental issues are
covered under 40.22, 40.23(3), 40.242, 40.244,
221.035F, 221.036(9), 116.072(1), and 116.072(6) to
116.072(8). Environmental waste management is-
sues are covered separately under 115A.29(2)(a) and
115A.38(2).
MISSISSIPPI: Automobile warranties disputes are
handled under Code provisions, 63-17-159 and 63-
17-163. Agricultural debt is addressed under 69-2-43
to 69-43-51.
MISSOURI: Labor disputes are covered under Stat-
utes 290.400, 290.420, 290.430, and 295.030 to
290.190, AS IS 105.525. Civil Rights disputes are cov-
ered under 213.010(1), 213.020, and 213.075.
MONTANA: Labor disputes are covered under Mon-
tana Code 39-31-307. Family disputes are covered
under 26-1-81 and 40-3-111 to 40-3-127. Agricultural
debt ADR is handled under 80-13-191 and 80-13-201
to 80-13-214. Civil Rights disputes are covered under
49-2-501(1), 49-2-504 to 49-2-506, and 49-2-601.
Worker’s compensation disputes are covered under
39-71-2401 to 39-71-2411. There is a special Code
provision for special education matters under 20-7-
462(4). MEDICAL MALPRACTICE panels are covered
under 27-6-101 to 27-6-704. Disputes involving the
production and distribution of agricultural products
are covered under is handled under 80-1-101 and 80-
11-103(9).
NEBRASKA: Family disputes are covered under 42-
801 to 42-823, and 42-360. Agricultural debt is cov-
ered under 2-4801 to 2-4816. Civil rights disputes are
covered under 20-113.01, 20-114(1)(2).
NEVADA: Nevada has copious provisions for ADR in
its statutes. Labor disputes are covered under
288.190, 288.200, 288.205, 288.215, 288.220, 288.270,
614.010, and 614.020. Automobile warranties are
handled under 598.761. Civil Rights disputes are cov-
ered under 233.020 to 233.210, and 244.161. Con-
sumer credit and civil rights disputes are covered
under 598B.150. Educational dispute ADR is found
under 394.11, and mobile home disputes are han-
dled under 118B.024, 118B.025, and 118B.260.
NEW HAMPSHIRE: Labor disputes are covered New
Hampshire Statutes 273-A:1, 273-A:12, 273.215,
273.220, 273.270, 614.010 and 614.020. Automobile
warranties are handled under 357.0:4.
NEW JERSEY: Labor disputes are covered under 34-
13A-4 to 34-13A-16 and 34-13A-15.Civil rights dis-
putes are covered under 52:27E-40, 52:27E-41. A gen-
eral ADR provision is found at 2A:23A-1 to 2A:23A-19.
Disputes involving the developmentally disabled are
covered under 52:27E-40 and 41. Home warranties
are covered under 46:3 B-9. Radioactive waste issues
are handled under 32:31-5.
NEW MEXICO: Family disputes are covered under
40-12-1 to 40-12-6, and 40-4-9.1(B) and (J)(5). Auto-
mobile warranties are handled under 57-16A-6. Small
claims are handled under 34-8A-10.
NEW YORK: Labor disputes are covered under Sec-
tions 205 and 209 for civil service, and Sections 750
to 760 for labor. Family disputes are covered under
Sections 911-926. Automobile warranties are handled
under Section 198-a (general business) Tax matters
fall under Section 170(3a). Community Dispute Res-
olution Programs are governed by Sections 849-a to
849-g (judicial law).
NORTH CAROLINA: Labor disputes are covered
under Statutes 95-32 to 95-36. Automobile warranties
are handled under 20-351.7. Civil Rights disputes are
covered under 143-422.3 (unemployment) or 41A-
6(6), 41A-7(a), 41A-8 (housing).
NORTH DAKOTA: Family disputes are covered
under Code Sections 14-09.1-01 to 14-09.1-08, and
27-05.1-01 to 27-05.1-18. Automobile warranties are
handled under 51-07-18(3). A provision for ADR of
agricultural debt can be found at 6.09.10-01 to 10-09.
Debtor-creditor disputes are covered under 11-26-01
to 11-26-08.
OHIO: Lengthy provisions under Ohio’s Code for
labor disputes are covered under 4117.02(A), (E),
(H)(7), (N),4117.14(A) and (C). Family disputes are
covered under 3117.01 to 08. Automobile warranties
are handled under 1345.75 and 77. Civil rights dis-
putes (housing matters) are covered under
1901.331.
OKLAHOMA: Automobile warranties are handled
under Statute Title 15, Section 901(f). Civil Rights dis-
DISPUTE RESOLUTION ALTERNATIVES—MEDIATION
408 GALE ENCYCLOPEDIA OF EVERYDAY LAW
putes are covered under Title 25, Sections 1505,
1704, and 1705. 22-9-1-6. General dispute resolution
programs are covered under Title 12, Sections 1801
to 1813.
OREGON: Oregon’s statutes covering labor disputes
are found at 662.405 to 455, 662.705(4), 662.715,
662.785, and 243.650 et seq. Family disputes are cov-
ered under 107.510 to 107.615, 107.755 to 107.795,
and 107.179(4).
PENNSYLVANIA: Pennsylvania Statutes, Title 43, Sec-
tion 211.31 to 39, and Title 43, Section 213.13 cover
general labor disputes, as well as Title 43, Section
1101..801,.802, and Title 43, Section 217.3. Automo-
bile warranties are handled under Title 73, Section
1959. Civil Rights disputes are covered under Title
43, Section 957(i) (unemployment) or Title 43, Sec-
tion 959(a) to (c) (employment. Eminent domain is-
sues are covered under Title 52, Section 1406.15.
RHODE ISLAND: Labor disputes are covered under
General Law 28-10-1, 28-9.4-10, 28-9.4-17, and 28-7-
10. ADR for consumer issues is found at 42-42-5 to
42-42-7.
SOUTH CAROLINA: Codified laws in South Carolina
include ADR provisions for labor disputes under 41-
10-70 (wage mediation) and 41-17-10. Civil rights dis-
putes are covered under 1-13-70 and 1-13-90 (em-
ployment). Consumer disputes are covered under
37-6-117. Employment grievances are covered under
8-17-360 and 8-17-370.
SOUTH DAKOTA: South Dakota has ADR for labor
disputes under 60-10-1 to 60-10-3.
TENNESSEE: Bank patrons may resolve their dis-
putes under Tennessee’s Code 45-1-301 to 45-1-309.
TEXAS: Labor disputes are covered under Article
5154c-1, Section 9. ADR procedures in general are
covered under Article 4590f-1, title 7, 154.001 to
154.073 Section 3.07(d).
UTAH: Family disputes are covered under 30-3-16.2
to 30-3-17.1, 30-3-4.1, and 30-3-4.3. Automobile war-
ranties are handled under 30-20-7. Medical malprac-
tice resolution is provided for under 78-14-1, 78-14-2,
and 78-14-12 to 16.
VERMONT: Labor disputes are covered under Ver-
mont Code Title 21, 924 and 925, Title 3, 8.25, and
Title 21, 521 to 554. Special education matters are
covered by Title 16, Section 2941, 2959.
VIRGINIA: Labor disputes are covered under Virgin-
ia’s Code, 40.1-70 to 40.1-75. Family disputes are cov-
ered under 16.1-69.35 and 16.1-289.1. Automobile
warranties are handled under 59.1-207.15. Civil me-
diation programs are found under 16.1-69.35(d)
There is a special Code provision for local govern-
ment dispute mediation at 15.1-945.1 et seq.
WASHINGTON: Labor disputes are covered under
49.08.010, 41.56.430, 41.56.440, 41.56.450, and
41.59.120. Family disputes are covered under
26.09.015. Automobile warranties are handled under
19.118.150. Civil Rights disputes are covered under
49.60.130. Dispute resolution centers are found at
7.75.010 to 7.75.100
WEST VIRGINIA: West Virginia has an ADR provision
for labor disputes at Code Section 21-1A-1. There is
also an ADR provision for automobile warranty dis-
putes at 46A-6A-8 and 46A-6A-9.
WISCONSIN: Wisconsin Statutes cover ADR for labor
disputes under 101.24, 111.11, 111.39, 111.53-56,
111.70, and 111.77. Family disputes are covered
under 753.016 (conciliation), 767.081-82, 767.001(3)
and (4), 767.11, and 767.327(1) and (2). Automobile
warranties are handled under 218.015(3) to (7). Civil
Rights disputes are covered under 118.20 (employ-
ment), 230.85 (employment), and 1419 (governor
and mediation).
WYOMING: Automobile warranties are handled
under Statute 40-17-101(a) and (f). Agricultural debt
is covered under 11-41-101 to 110. Environmental is-
sues are handled under 35-11-701(a) to (c).
Additional Resources
‘‘A Brief Overview of the American Arbitration Associa-
tion.’’ Available at http://gov.news/press/2001pres/
01fsprivacy.html.
Administrative Dispute Resolution Act of 1996. U. S. Con-
gress, 1995. Available at http://gov.news/press/
2001pres/01fsprivacy.html.
‘‘Arbitration and Mediation.’’ Consumer Law Center. Avail-
able at http://gov.news/press/2001pres/01fsprivacy.html
Civil Justice Reform Act of 1990. 28 U.S.C. Section 471 et
seq.
‘‘History of EEOC Mediation Program.’’ The U. S. Equal
Employment Opportunity Commission. Available at
http:// www.eeoc.gov/mediate/history.html.
How and When to Be Your Own Lawyer. Schachner, Rob-
ert W., Avery Publishing Group, Inc., 1995.
Law for Dummies. Ventura, John, IDG Books Worldwide,
Inc., 1996.
DISPUTE RESOLUTION ALTERNATIVES—MEDIATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 409
U. S. Code, Title 29, Labor, Subtitle B, Chapter XII, Federal
Mediation and Conciliation Service. Available at http:/
/lula.law.cornell.edu/cfr/.
Uniform Mediation Act. National Conference of Commis-
sioners on Uniform State Laws, 2000. Available at http://
gov.news/press/2001pres/01fsprivacy.html.
Organizations
American Arbitration Association (AAA)
335 Madison Avenue, Tenth Floor
New York, NY 10017-4605 USA
Phone: (212) 716-5800
Fax: (212) 716-5905
URL: http://www.adr.org
American Bar Association (ADR Section)
740 15th Street NW
Washington, DC 20005 USA
Phone: (202) 992-1000
Global Arbitration Mediation Association
(GAMA)
3660 Druids Drive
Conyers, GA 30013 USA
Phone: (770) 235-7818
URL: http://www.gama.com
National Association for Community
Mediation
1527 New Hampshire Avenue NW
Washington, DC 20036-1206 USA
Phone: (202) 667-9700
URL: http://www.nafcm.org
National Institute for Dispute Resolution
1726 M Street NW, #500
Washington, DC 20036 USA
Phone: (202) 466-4764
DISPUTE RESOLUTION ALTERNATIVES—MEDIATION
410 GALE ENCYCLOPEDIA OF EVERYDAY LAW
DISPUTE RESOLUTION ALTERNATIVES
MINI-TRIALS
Sections within this essay:
• Background
• Mini-trials Distinguished From Other Forms
of ADR
• Mini-trials in Federal Courts
• State Provisions
• Additional Resources
Background
A mini-trial is an alternative method for resolving
a legal dispute from a formal court trial. Mini-trials,
like mediations and arbitrations, constitute unique
forms of ‘‘alternative dispute resolution’’ (ADR) fa-
vored by courts and litigants alike. There has been
a general increase in all forms of ADR in recent years
because of the advantages offered: reduced cost, fast
resolution, privacy, and less adversity in effect.
A mini-trial is really not a trial at all. Rather, it is
a SETTLEMENT process in which the parties present
highly summarized versions of their respective cases
to a panel of officials who represent each party (plus
a ‘‘neutral’’ official) and who have authority to settle
the dispute. The presentation generally takes place
outside of the courtroom, in a private forum. After
the parties have presented their best case, the panel
convenes and tries to settle the matter.
Mini-Trials Distinguished From Other
Forms of ADR
A mini-trial most resembles a MEDIATION HEARING,
in that there is a presentation by each party of a sum-
marized version of his or her case to a panel of per-
sons for the purpose of resolving or settling the dis-
pute. Also like mediation, the parties are generally
not bound to an outcome, and may end the process
at an impasse.
However, there is one important difference be-
tween a mediation and a mini-trial. In mediation, the
mediator is a neutral third party who does not take
the side of either party, but instead tries to facilitate
open communication between the parties them-
selves in order to achieve compromise and settle-
ment. Even in court-ordered mediations conducted
by a panel of mediators, the focus is still on the par-
ties: the mediators merely issue a recommendation
to the parties for settlement consideration.
Conversely, in a mini-trial, the mediators them-
selves are agents and advocates for the parties, and
they, rather than the parties, work out a settlement
after hearing opposing sides to the controversy
(each goes into the mini-trial with advance authoriza-
tion to settle the matter for a certain dollar amount
or under other conditions or criteria).The parties
present their cases (usually through their attorneys)
but do not take active roles in the settlement negoti-
ations nor generally do their attorneys. The decision-
makers in a mini-trial are the actual members of the
panel (excepting any neutral member, who may play
the role of expert, advisor on substantive law, etc.).
One might ask why the parties themselves do not
facilitate the settlement directly in a mini-trial. The
answer is two-fold. First, parties involved in a contro-
versy tend to approach and/or perceive the matter
subjectively rather than objectively. Parties also tend
to inject emotion or BIAS into their negotiations and
will seldom compromise unless they have been in-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 411
troduced to damaging information that tends to di-
minish their claim or defense. Therefore, officials
who are one step removed from the controversy,
even if they serve as advocates for their respective
parties, tend to approach the dispute more objec-
tively. Secondly, the officials at a mini-trial tend to be
well-seasoned and experienced in similar matters.
For example, they may be representatives of the in-
surance carrier for the party, or top-level manage-
ment of a business that is party to a dispute or they
may be privately-retained consultants with technical
expertise in the subject matter. For these reasons,
they may be better equipped to dissect and sort out
opposing EVIDENCE and arguments.
Mini-trials also differ from another ADR tech-
nique, the ‘‘summary trial’’ or ‘‘summary jury trial.’’
Both mini-trials and summary jury trials involve the
presentation of each side’s case, usually without live
TESTIMONY, but with opening and closing statements
and an outline of evidence they intend to produce
at trial. However, summary trials are actually pres-
ented before mock juries, who issue advisory ‘‘ver-
dicts.’’ Following a jury determination, the parties
and their attorneys will attempt settlement.
Finally, a mini-trial differs from other forms of
ADR in that it is usually conducted after formal
LITIGATION has already been undertaken. Parties to a
lawsuit generally stipulate to ‘‘stay’’ pending litiga-
tion (put a hold on further advancement of the litiga-
tion) until the mini-trial is concluded. Thus, mini-trial
does not, in and of itself, represent an alternative
forum for the resolution of a dispute (such as
ARBITRATION), but rather it represents a pre-trial alter-
nate attempt to settle the matter before lengthy trial
begins. The outcome of the mini-trial is generally
confidential and advisory only, and the parties may
proceed to trial if settlement negotiations fail.
Mini-trials in Federal Courts
The Alternative Dispute Resolution Act of 1998
(ADRA) (28 USC 651 et seq.) mandates that courts
authorize, establish, and promote the use of ADR, in-
cluding mediation, arbitration, mini-trial and summa-
ry jury trial, in all civil actions. Federal district courts
maintain their individual discretion to decide at what
stage in the litigation process a court may offer ADR
to the parties. Local rules establish ADR procedure
in the federal courts.
The federal government also encourages the use
of ADR in general within its own ranks. The Adminis-
trative Dispute Resolution Act of 1996 provides a
forum for handling disputes within agencies or be-
tween citizens and agencies (claims against the gov-
ernment). Federal agencies are free to set up their
own procedural ADR programs for the handling of
both internal and external disputes. For example, the
U. S. CODE OF FEDERAL REGULATIONS (CFR) contains
several ADR program provisions for federal agencies
that contemplate mini-trials (as one of several alter-
natives); examples include the Federal Aviation Ad-
ministration (FAA) (14 CFR 17.45), the Department
of Energy (10 CFR 1023.8), and the Department of
Housing and Urban Development (24 CFR 7.2).
State Provisions
Generally speaking, state provisions for mini-trials
are contained in comprehensive statutes or rules ad-
dressing ADR programs in their entirety. It is fair to
say that if a court system has a formal ADR program,
it will be receptive to the request for a mini-trial. The
following state laws provide for ADR of certain types
of disputes. Within those provisions, or at the re-
quest of the parties, mini-trials may be substituted
for other forms of ADR (with the exception of
STATUTORY mandatory arbitration):
ALABAMA: Alabama Code, Title 6, Chapter 6 covers
ADR, including mini-trials.
ALASKA: Family disputes are governed by Alaska Stat-
utes 25.20.080 and 25.24.080. Disputes involving au-
tomobile warranties are governed by 45.45.355.
ARIZONA: Statutory provisions for arbitration/
mediation of family disputes are covered under 25-
381.01 to 25-381.24. Automobile warranties are cov-
ered under 44-1265.
ARKANSAS: Title 16, Subtitle 1-17 of the Arkansas
Statutes covers ADR, including mini-trials.
CALIFORNIA: California’s Code contains extensive
provisions for ADR of many types of disputes. Title
2, Division 3, Part 1, Chapter 4.5, Article 5 addresses
ADR in general. Family disputes are covered in statu-
tory Sections 5180 to 5183. Education matters are
covered by 48260.6, 48263, 48263.5 (truancy), and
56503 (special education). There is a special provi-
sion for the arbitration of cable TV franchise disputes
under 53066.1(n)(1). Environmental regulatory dis-
putes, including issues involving pesticides, are cov-
ered under 13127(c)(1). Water rights disputes are
handled under 1219. Community disputes of a busi-
ness or professional nature are covered under 465 to
471.5.
DISPUTE RESOLUTION ALTERNATIVES—MINI-TRIALS
412 GALE ENCYCLOPEDIA OF EVERYDAY LAW
COLORADO: Colorado’s statutes provide ADR for
family matters under 14-10129.5. Agricultural debts
are governed by 6-9-101 to 6-9-106. A special statuto-
ry provision exists for ADR of disputes involving mo-
bile homes under 38-12-216. Dispute resolution in
general is covered by 13-22-301 to 13-22-310.
CONNECTICUT: Chapter 909 of the Connecticut
Statutes cover ADR in general. Family disputes are re-
solved under 46b-59a. Public Act 87-316 Section 8
(1987) is codified under 42-182.
DELAWARE: Delaware’s Code, Title 10, Chapter 57
addresses ADR in general. Automobile warranties are
covered under Title 6 Section 5007.
FLORIDA: Florida Statutes Annotated cover ADR of
family disputes under 44.101, 61.183, 39.42, 39.427
to 39.429, 39.436, 39.44, and 39.442. Automobile
WARRANTY disputes are provided for under 681.108
and 681.111 Mobile home disputes fall under
723.037 and 723.038. The state maintains ‘‘citizen
dispute settlement centers’’ for ADR assistance
under 44.201.
GEORGIA: Title 15, Chapter 23 under the Georgia
Code addresses ADR.
HAWAII: Division 4, Title 32, Chapter 613 covers ADR
in general. Automobile warranty disputes are cov-
ered under Hawaii Revised Statutes 490-2 and 313-1.
Medical CONCILIATION is addressed by 671-11 to 671-
20. There is a special statutory provision for ADR of
geothermal resources disputes under 205-5.1. Inter-
national disputes are covered by 1988 Haw. Sess.
Laws, Ch. 186, Sections 1-9.
IDAHO: Idaho Code Section 44-106 governs labor
disputes.
ILLINOIS: Illinois Compiled Statutes address ADR of
family disputes in Ch. 40, paragraph 602.1 and 607.1.
Automobile warranty disputes are covered by
Ch.121.5, paragraph 1204(4). Disputes involving
PUBLIC UTILITIES fall under Ch. 11, paragraph 702.12a.
Illinois operates several nonprofit community dis-
pute resolution centers under the auspices of Ch. 37,
paragraph 851.1 to 856.
INDIANA: Family disputes are covered under Indiana
Code 31-1-24-1 to 31-1-24-9, 31-1-23-5 to 31-1-23-9.
Automobile warranties are handled under 24-5-13-
19. CIVIL RIGHTS disputes are covered under 22-9-1-6.
CONSUMER PROTECTION disputes are covered under 4-
6-9-4(a)(4). There is a special Code provision for
water rights disputes under 13-2-1-6(2).
IOWA: Subtitle 5, Chapter 679 to 679.14 addresses
ADR. Family disputes are covered under Iowa Code
598.16 and 598.41(2). Agricultural debts are handled
under 654a1 to 654a14. Civil Rights disputes are cov-
ered under 601A.15(3)(c).
KANSAS: Kansas Statutes Chapter 60, Article 2 ad-
dresses ADR in general. The ADR provisions for fami-
ly disputes are covered under 23-601 to 23-607 and
23-701. Automobile warranties are handled under 50-
645(e). Civil Rights disputes are covered under 44-
1001 to 44-1005. There is a special ADR provision for
barbershop business disputes under 65-1824(4).
KENTUCKY: Kentucky has extensive ADR provisions
in its Kentucky Revised Statutes (KRS). Family dis-
putes are covered under KRS 403.140(b) and
403.170. Automobile warranties are handled under
KRS 367.860 to 367.880. Civil Rights disputes are cov-
ered under KRS 344.190 to 344.290 and 337.425. Ed-
ucation matters are covered under KRS 165A.350 and
360. Disputes involving the production and distribu-
tion of agricultural products are covered under KRS
260.020.030(e) and 260.020.040(l) There is a special
provision for community agency funding at KRS
273.451.
LOUISIANA: Family disputes are covered under Loui-
siana Statutes Title 9, Sections 351 to 356. Automo-
bile warranties are handled under Title 23, Section
1944. Housing civil rights matters are addressed
under Title 40, Section 597. Barbershop disputes are
covered under Title 37, Section 381. There is a spe-
cial provision for a Medical Review Panel at Title 40,
Section 1299-47.
MAINE: Maine’s statutes provide ADR for the follow-
ing areas of dispute: family disputes are covered
under Title 4, Section 18 (1 to 5), Title 19, Section
214 (1,4), Title 19, Section 518 (1,2, and 4), Title 19,
Section 656,665, and Title 19, Section 752(4). Auto-
mobile warranties are handled under Title 10, Sec-
tion 1165. There is a special ADR provision for pro-
fessional NEGLIGENCE claims (MALPRACTICE) under
Title 24, Sections 2851 to 2859.) Disputes involving
the production and distribution of agricultural prod-
ucts are covered under Title 13, Sections 1956 to
1959.
MARYLAND: Maryland has an employment agency
dispute ADR provision under Article 56, Section 169.
MASSACHUSETTS: There is an ADR provision for
cable television disputes under Chapter 166A, Sec-
tion 16. A Community Mediation provision is at
Chapter 218, Section 43E.
DISPUTE RESOLUTION ALTERNATIVES—MINI-TRIALS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 413
MICHIGAN: MCR 2.403 (Michigan Court Rules) cov-
ers court-ordered ADR (mediations) of civil actions
involving money damages or division of property.
Domestic relations ADR is governed by MCR 3.211.
ADR of health care matters is covered under Michi-
gan statutes, MCL 600.4901 to 600.4923. Disputes in-
volving the production and distribution of agricultur-
al products are covered under 290-714. A small
claims conciliation STATUTE is contained under MCL
730.147 to 730.155.
MINNESOTA: Chapter 486.76 of the Minnesota Stat-
utes addresses ADR. Family disputes are covered
under 518.167 and 518.619. Automobile warranties
are handled under 325F.665. Civil Rights disputes are
covered under 63.01, and 63.04 to 63.06. Conciliation
Courts are provided for under 487.30. Civil Media-
tion is outlined under 572.31 to 572.40. Civil litiga-
tion ADR is covered separately under 484.74. There
is also a statutory ADR provision for community dis-
pute resolution programs under 494.01 to 494.04. A
special provision for debtor-creditor mediation is
found under 572.41, and worker’s compensation dis-
putes under 176.351(2a). Disputes involving the pro-
duction and distribution of agricultural products are
covered under 17.692, 17.695, 17.697 to 17.701. Envi-
ronmental issues are covered under 40.22, 40.23(3),
40.242, 40.244, 221.035F, 221.036(9), 116.072(1),
and 116.072(6) to 116.072(8). Environmental waste
management issues are covered separately under
115A.29(2)(a) and 115A.38(2).
MISSISSIPPI: Title 11, Chapter 15 of the Mississippi
Code addresses ADR in general. Automobile warran-
ties disputes are handled under Code provisions, 63-
17-159 and 63-17-163. Agricultural debt is addressed
under 69-2-43 to 69-43-51.
MISSOURI: ADR of civil rights disputes is covered
under Statutes 213.010(1), 213.020, and 213.075.
MONTANA: Title 25, Chapter 21, Part 5 of the Mon-
tana Code addresses ADR generally. Family disputes
are covered under 26-1-81 and 40-3-111 to 40-3-127.
Agricultural debt ADR is handled under 80-13-191
and 80-13-201 to 80-13-214. Civil Rights disputes are
covered under 49-2-501(1), 49-2-504 to 49-2-506, and
49-2-601. Worker’s compensation disputes are cov-
ered under 39-71-2401 to 39-71-2411. There is a spe-
cial Code provision for special education matters
under 20-7-462(4). MEDICAL MALPRACTICE panels are
covered under 27-6-101 to 27-6-704. Disputes involv-
ing the production and distribution of agricultural
products are covered under 80-1-101 and 80-11-
103(9).
NEBRASKA: Family disputes are covered under 42-
801 to 42-823, and 42-360. Agricultural debt is cov-
ered under 2-4801 to 2-4816. Civil rights disputes are
covered under 20-113.01, 20-114(1)(2).
NEVADA: Chapter 232.548 covers general ADR provi-
sions in its statutes. Automobile warranties are han-
dled under 598.761. Civil Rights disputes are covered
under 233.020 to 233.210, and 244.161. Consumer
credit and civil rights disputes are covered under
598B.150. Educational dispute ADR is found under
394.11, and mobile home disputes are handled
under 118B.024, 118B.025, and 118B.260.
NEW HAMPSHIRE: New Hampshire Statutes cover
ADR of automobile warranties under 357.0:4.
NEW JERSEY: Title 2A, Chapter 23A provides for ADR
in general. Civil rights disputes are covered under
52:27E-40, 52:27E-41. A general ADR provision is
found at 2A:23A-1 to 2A:23A-19. Disputes involving
the developmentally disabled are covered under
52:27E-40 and 41. Home warranties are covered
under 46:3 B-9. Radioactive waste issues are handled
under 32:31-5.
NEW MEXICO: Chapter 34, Article 6-44 addresses
ADR in general. Family disputes are covered under
40-12-1 to 40-12-6, and 40-4-9.1(B) and (J)(5). Auto-
mobile warranties are handled under 57-16A-6. Small
claims are handled under 34-8A-10.
NEW YORK: Article 75 of the Civil Practice and Law
Rules address ADR. Additionally, family disputes are
covered under Sections 911-926. Automobile warran-
ties are handled under Section 198-a (general busi-
ness) Tax matters fall under Section 170(3a). Com-
munity Dispute Resolution Programs are governed
by Sections 849-a to 849-g (judicial law).
NORTH CAROLINA: Chapter 1, Article 45A covers
ADR. Automobile warranties are handled under Stat-
utes 20-351.7. Civil Rights disputes are covered
under 143-422.3 (unemployment) or 41A-6(6), 41A-
7(a), 41A-8 (housing).
NORTH DAKOTA: Title 32, Chapter 32-42 covers
ADR generally. Family disputes are covered under
Code Sections 14-09.1-01 to 14-09.1-08, and 27-05.1-
01 to 27-05.1-18. Automobile warranties are handled
under 51-07-18(3). A provision for ADR of agricultur-
al debt can be found at 6.09.10-01 to 10-09. Debtor-
creditor disputes are covered under 11-26-01 to 11-
26-08.
OHIO: Article 2711 of the Ohio Code addresses ADR
generally. Family disputes are covered under 3117.01
DISPUTE RESOLUTION ALTERNATIVES—MINI-TRIALS
414 GALE ENCYCLOPEDIA OF EVERYDAY LAW
to 08. Automobile warranties are handled under
1345.75 and 77. Civil rights disputes (housing mat-
ters) are covered under 1901.331.
OKLAHOMA: Title 12, Chapter 37, 1809 provides
generally for ADR. Automobile warranties are han-
dled under Statute Title 15, Section 901(f). Civil
Rights disputes are covered under Title 25, Sections
1505, 1704, and 1705. 22-9-1-6. General dispute reso-
lution programs are covered under Title 12, Sections
1801 to 1813.
OREGON: Most ADR provisions are generally dis-
cussed in Oregon’s statutes Chapter 36. Family dis-
putes are covered under 107.510 to 107.615, 107.755
to 107.795, and 107.179(4).
PENNSYLVANIA: Pennsylvania Statutes address ADR
of disputes involving automobile warranties under
Title 73, Section 1959. Civil Rights disputes are cov-
ered under Title 43, Section 957(i) (unemployment)
or Title 43, Section 959(a) to (c) (employment. Emi-
nent domain issues are covered under Title 52, Sec-
tion 1406.15.
RHODE ISLAND: ADR for consumer issues is found
at 42-42-5 to 42-42-7.
SOUTH CAROLINA: Codified laws in South Carolina
include ADR provisions for civil rights disputes under
1-13-70 and 1-13-90 (employment). Consumer dis-
putes are covered under 37-6-117. Employment
grievances are covered under 8-17-360 and 8-17-370.
SOUTH DAKOTA: South Dakota has statutory ADR
for labor disputes under 60-10-1 to 60-10-3.
TENNESSEE: Title 29, Chapter 5 of the Tennessee
Code addresses ADR. Bank patrons may resolve their
disputes under Tennessee’s Code 45-1-301 to 45-1-
309.
TEXAS: Government Code, Title 10, Subtitle A, 2008
provides for ADR in general. ADR procedures are
also addressed Texas Code Article 4590f-1, title 7,
154.001 to 154.073 Section 3.07(d).
UTAH: Family disputes are covered under 30-3-16.2
to 30-3-17.1, 30-3-4.1, and 30-3-4.3. Automobile war-
ranties are handled under 30-20-7. Medical malprac-
tice resolution is provided for under 78-14-1, 78-14-2,
and 78-14-12 to 16.
VERMONT: Chapter 192 of the Vermont Code gener-
ally addresses ADR. Special education matters are
covered by Title 16, Section 2941, 2959.
VIRGINIA: Title 11-71.1 of the Virginia’s Code ad-
dresses ADR in general. Family disputes are covered
under 16.1-69.35 and 16.1-289.1. Automobile warran-
ties are handled under 59.1-207.15. Civil mediation
programs are found under 16.1-69.35(d) There is a
special Code provision for local government dispute
mediation at 15.1-945.1 et seq.
WASHINGTON: Titles 7.04 and 7.75 address ADR.
Family disputes are covered under 26.09.015. Auto-
mobile warranties are handled under 19.118.150.
Civil Rights disputes are covered under 49.60.130.
Dispute resolution centers are found at 7.75.010 to
7.75.100
WEST VIRGINIA: Chapter 55, Article 15 of the West
Virginia Code addresses ADR generally. There is also
an ADR provision for automobile warranty disputes
at 46A-6A-8 and 46A-6A-9.
WISCONSIN: Wisconsin Statutes, Chapter 802-12
covers ADR generally. Family disputes are covered
under 753.016 (conciliation), 767.081-82, 767.001(3)
and (4), 767.11, and 767.327(1) and (2). Automobile
warranties are handled under 218.015(3) to (7). Civil
Rights disputes are covered under 118.20 (employ-
ment), 230.85 (employment), and (esoterically)
1419.
WYOMING: Automobile warranties are handled
under Statute 40-17-101(a) and (f). Agricultural debt
is covered under 11-41-101 to 110. Environmental is-
sues are handled under 35-11-701(a) to (c).
Additional Resources
‘‘A Brief Overview of the American Arbitration Associa-
tion.’’ Available at http://gov.news/press/2001pres/
01fsprivacy.html.
Civil Justice Reform Act of 1990. 28 U.S.C. Section 471 et
seq.
How and When to Be Your Own Lawyer. Schachner, Rob-
ert W., Avery Publishing Group, Inc.,1995.
Law for Dummies Ventura, John, IDG Books Worldwide,
Inc., 1996.
‘‘Mini-Trials.’’ Available at http://gov.news/press/2001pres/
01fsprivacy.html
‘‘Mini-Trials and Summary Jury Trials.’’ Bennett., Nancy J.,
Available at http://gov.news/press/2001pres/
01fsprivacy.html.
‘‘State Statutes by Topic: Alternative Dispute Resolution.’’
Available at http://gov.news/press/2001pres/
01fsprivacy.html.
‘‘Title 10-Energy’’, Chapter X-Department of Energy (Gen-
eral Provisions), Part 1023—-Contract Appeals, Section
1023.8(b) United States Code, 10 CFR 1023.8.
DISPUTE RESOLUTION ALTERNATIVES—MINI-TRIALS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 415
‘‘Title 14-Aeronautics and Space, Chapter I-Federal Avia-
tion Administration, Part 17-Procedures for Protests
and Contracts Disputes, Subpart F-Finality and Review,
Section 17.45, Appendix A to Part 17-Alternative Dis-
pute Resolution (ADR),(B)(3). United States Code, 14
CFR 17.45.
Organizations
American Arbitration Association (AAA)
335 Madison Avenue, Tenth Floor
New York, NY 10017-4605 USA
Phone: (212) 716-5800
Fax: (212) 716-5905
URL: http://www.adr.org
American Bar Association (ADR Section)
740 15th Street NW
Washington, DC 20005 USA
Phone: (202) 992-1000
DISPUTE RESOLUTION ALTERNATIVES—MINI-TRIALS
416 GALE ENCYCLOPEDIA OF EVERYDAY LAW
DISPUTE RESOLUTION ALTERNATIVES
NEGOTIATION
Sections within this essay:
• Background
• The Role of Negotiations in ADR
- Arbitration
- Mediation
- Minitrials
- Summary Jury Trials
- Early Neutral Evaluation
- Conclusion: Negotiation, ADR, and
Civil Litigation
• Additional Resources
Background
Negotiations consist of written and oral communi-
cations undertaken for the purpose of reaching
agreement. When undertaken in GOOD FAITH, negoti-
ations include a process of give-and-take, whereby
each party to the negotiations presents its position,
critiques opposing positions, explores points of com-
mon ground, highlights divisive issues, proposes
compromises and resolutions, and determines
whether a mutually acceptable arrangement can be
agreed upon to resolve the matters in dispute. When
undertaken in BAD FAITH, negotiations often are re-
duced to rancorous posturing aimed at assigning
blame rather than reaching an amicable SETTLEMENT.
Lawyers are constantly negotiating in civil
LITIGATION. Yet negotiation is not always used often
enough, or extensively enough, to avoid litigation.
Legal observers have suggested that a factor contrib-
uting to the high cost of litigation is the fear that the
first side to propose settlement weakens its negotiat-
ing position. Since appearing eager to settle is taken
as demonstrating a lack of confidence in one’s case,
both sides concentrate on DISCOVERY and preparing
for trial so as to strengthen their hands for future ne-
gotiation while legal fees continue to mount.
The same fear does not ordinarily impede alterna-
tive dispute resolution proceedings, where a negoti-
ated settlement is typically the goal for both parties.
Alternative dispute resolution refers to an array of
practices, procedures, and techniques that are used
to resolve legal disputes by means other than formal
civil litigation. Known more commonly as ADR, alter-
native dispute resolution is usually less costly and
more time-efficient than civil litigation. ADR can also
be more confidential than civil litigation. Court pro-
ceedings, records, and transcripts are generally open
to public scrutiny and inspection in most civil litiga-
tion and cannot be sealed from the public absent an
extraordinary justification. By contrast, parties to
ADR proceedings can agree to insulate their dispute
and its resolution from the public.
Early Puritan, Quaker, and Dutch settlers were
among the first in North America to employ alterna-
tive means in resolving legal disputes. These tightly
knit communities of settlers preferred even-
tempered negotiations to adversarial litigation and
treated litigation as a last resort to try only when pro-
cedures such as MEDIATION and ARBITRATION (dis-
cussed in detail below) failed to produce an accept-
able and effective settlement. However, the term
‘‘alternative dispute resolution’’ was not coined in
the United States until sometime during the 1970s,
when it drew diverse support from influential mem-
bers of society, including CHIEF JUSTICE Warren Ber-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 417
ger and consumer rights advocate Ralph Nader. Both
Berger and Nader emphasized the perspective of the
average citizen, who they said has neither the time
nor the money to spend getting bogged down in
drawn out court battles. Instead, Berger and Nader
argued that average citizens find out-of-court negoti-
ation alternatives to be a more palatable course, at
least when done evenhandedly.
Congress helped fuel the ADR movement in the
1980s and 1990s by passing a series of legislative acts.
In 1980 it passed the Dispute Resolution Act, which
provides financial incentives for state governments
and private entities to explore innovative approaches
to negotiation and dispute resolution. 28 U.S.C. app.
section 1 et seq; Pub. L. No. 96-190, 94 Stat. 17
(1980). In 1990 Congress passed the Administrative
Dispute Resolution Act, which encourages federal
agencies to use mediation and arbitration for prompt
and informal resolution of disputes. 5 U.S.C.A. sec-
tions 571 et seq; Pub.L. 101-552, Nov. 15, 1990, 104
Stat. 2738, and renumbered and amended Pub.L.
102-354, Aug. 26, 1992, 106 Stat. 944, 946. Eight years
later Congress passed the Alternative Dispute Reso-
lution Act of 1998, which requires all federal district
courts to establish an ADR program, making at least
one form of ADR available to all federal civil litigants.
28 U.S.C.A. sections 651 et seq; Pub.L. 100-702, Title
IX, Nov. 19, 1988, 102 Stat. 4659. By 2001 approxi-
mately ninety to ninety-five percent of all legal dis-
putes were being resolved outside of trial by using
negotiation through some form of ADR.
The Role of Negotiations in ADR
A wide variety of processes, practices, and tech-
niques fall within the definition of ‘‘alternative dis-
pute resolution.’’ Arbitration and mediation are the
best known and most frequently used types of ADR,
but not the only ones. Minitrials, early neutral evalua-
tions, and summary jury trials are less well-known
forms of ADR. Many of these ADR techniques have
little in common except that negotiation plays a
prominent role in each. Parties to ADR procedures
generally agree that a negotiated settlement is worth
pursuing before investing time and money in full-
blown civil litigation.
Arbitration
Arbitration is the process of referring a dispute to
an IMPARTIAL intermediary chosen by the parties who
agree in advance to abide by the arbitrator’s award
that is issued after a HEARING at which all parties have
the opportunity to be heard. Arbitration resembles
traditional civil litigation in that a neutral intermedi-
ary hears the disputants’ arguments and imposes a
final and binding decision that is enforceable by the
courts. One difference is that in arbitration the dispu-
tants elect to settle any future disputes by arbitration
before a dispute actually arises, whereas with civil liti-
gation the judicial system is generally chosen by a
disgruntled party after a dispute has materialized. An-
other difference is that the disputants to an arbitra-
tion select the intermediary who will serve as arbitra-
tor, whereas parties to civil litigation have little to no
control over who will preside as the judge in judicial
proceedings.
Arbitration also resembles litigation in that many
parties use arbitration as a springboard to negotia-
tion. Parties who know that their dispute will wind
up in arbitration often fail to commence serious ne-
gotiations until shortly before or shortly after the ar-
bitration proceedings have begun. Frequently, nego-
tiations will continue simultaneously with the
arbitration proceedings, meaning the parties’ repre-
sentatives will discuss settlement outside the hearing
room while the hearing itself is underway inside. Ar-
bitration can even expedite negotiations, since the
parties know that once the arbitrator has issued a de-
cision, the decision is typically final and rarely appeal-
able.
There are two different forms of arbitration: pri-
vate and judicial arbitration. Private arbitration is the
most common form of ADR. Sometimes referred to
as contractual arbitration, private arbitration is the
product of an agreement to arbitrate drafted by the
parties who enter a relationship anticipating that dis-
putes will arise, but who mutually desire to keep any
such disputes out of the courts. Private arbitration
agreements typically identify the person who will
serve as arbitrator. The arbitrator need not be a judge
or government official. Instead, the arbitrator can be
a private person whom the parties feel will have suffi-
cient knowledge, experience, and equanimity to re-
solve a dispute in a reasonable manner. In some
states, legislation prescribes the qualifications one
must satisfy to be eligible for appointment as an arbi-
trator.
A private arbitrator’s power is derived completely
from the arbitration agreement, which may also limit
the issues the arbitrator has authority to resolve. Pri-
vate arbitration agreements are supported in many
states by statutes that provide for judicial enforce-
ment of agreements to arbitrate and arbitrator-
rendered awards. However, statutes governing pri-
DISPUTE RESOLUTION ALTERNATIVES—NEGOTIATION
418 GALE ENCYCLOPEDIA OF EVERYDAY LAW
vate arbitration often set forth criteria that must be
followed before an arbitration agreement will be
binding on both parties and enforced by a court. If
those criteria are satisfied, a court will normally deem
the arbitrator’s decision final and enforceable. The
losing party may only appeal the decision upon a
showing of FRAUD, misrepresentation, arbitrariness,
or capriciousness by the arbitrator.
Private arbitration is the primary method of set-
tling labor disputes between unions and employers.
For example, unions and employers almost always
include an arbitration clause in their formal negotia-
tions, known as COLLECTIVE BARGAINING agreements.
By doing so, they agree to arbitrate future employee
grievances over wages, hours, working conditions,
and job security. Many real estate and insurance con-
tracts also make arbitration the exclusive method of
negotiating and resolving certain disputes that can
arise between the parties entering those types of re-
lationships.
Judicial arbitration, sometimes called court-
annexed arbitration, is a non-binding form of arbitra-
tion, which means that any party dissatisfied with the
arbitrator’s decision may choose to go to trial rather
than accept the decision. However, most jurisdic-
tions prescribe a specific time period within which
the parties to a judicial arbitration may elect to reject
the arbitrator’s decision and go to trial. If this time
period expires before either party has rejected the
arbitrator’s decision, the decision becomes final,
binding, and just as enforceable as a private arbitra-
tor’s decision.
Judicial arbitration is usually mandated by
STATUTE, court rule, or regulation. Many of these stat-
utes were enacted to govern disputes for amounts
that exceed the JURISDICTION of small claims court
but fall short of the amount required for trial in civil
court. For example, in New York State claims for over
$3,000 and for less than $10,000 must be submitted
to non-binding judicial arbitration. NY CPLR Rule sec-
tion 3405. Ten federal district courts also have man-
datory programs for non-binding judicial arbitration
that are funded by Congress. For example, rule 30 of
the Local Rules of Court for the U. S. District Court
for the Western District of Missouri provides that
cases designated for compulsory, non-binding arbi-
tration are those in which the damage award could
not reasonably be expected to exceed $100,000.
Because judicial arbitration is mandatory but non-
binding, it often serves as a means of facilitating ne-
gotiation between the parties to a dispute. Civil court
calendars are frequently backlogged with hundreds
of lawsuits. States hope that by mandating non-
binding arbitration for certain disputes the parties
will see the value of a negotiated settlement where
both parties compromise their positions, since their
positions would likely be compromised were their
dispute to be resolved in civil court. Seldom do liti-
gants receive everything they ask for in their peti-
tions, complaints, and answers.
Private and judicial arbitration are generally less
costly and more time efficient than formal civil litiga-
tion. It has been estimated that the average arbitra-
tion takes 4 to 5 months while litigation may take sev-
eral years. The cost of arbitration is minimal
compared to civil trials as well, since the American
Arbitration Association (AAA) charges only a nominal
filing fee and the arbitrator may even work without
a fee to broaden his or her professional experience.
Mediation
Mediation is a rapidly growing ADR technique. It
consists of assisted negotiations in which the dispu-
tants agree to enlist the help of a neutral intermedi-
ary, whose job it is to facilitate a voluntary, mutually
acceptable settlement. A mediator’s primary function
is to identify issues, explore possible bases for agree-
ment, discuss the consequences of reaching im-
passe, and encourage each party to accommodate
the interests of other parties through negotiation.
However, unlike arbitrators, mediators lack the
power to impose a decision on the parties if they fail
to reach an agreement on their own.
Mediation is sometimes referred to as
CONCILIATION, or conciliated negotiation. However,
the terms are not necessarily interchangeable. Con-
ciliation focuses more on the early stages of negotia-
tion, such as opening the channels of communica-
tion, bringing the disputants together, and
identifying points of mutual agreement. Mediation
focuses more on the later stages of negotiation, ex-
ploring weaknesses in each party’s position, investi-
gating areas where the parties disagree but might be
inclined to compromise, and suggesting possible
mutually agreeable outcomes. Conciliation and me-
diation typically work well when the disputants are
involved in a long-term relationship, such as hus-
band and wife, wholesaler and retailer, and manufac-
turer and distributor, to name a few. Mediation and
conciliation also work well for ‘‘polycentric’’ prob-
lems that are not easily solved by all-or-nothing solu-
tions, as with certain antitrust suits involving a myri-
ad of complex issues.
DISPUTE RESOLUTION ALTERNATIVES—NEGOTIATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 419
Although some jurisdictions have enacted statutes
that govern mediation, most mediation proceedings
are voluntary for both parties. Accordingly, a media-
tor’s influence is limited by the autonomy of the par-
ties and their willingness to negotiate in good faith.
Thus, a mediator can go no further than the parties
themselves are willing to go. Since agreements
reached by mediation bear the parties’ own imprint,
however, many observers feel that they are more
likely to be adhered to than decisions imposed by an
arbitrator or court. Disputants who participate in me-
diation without representation of legal COUNSEL are
also more likely to adhere to settlements when the
alternative is to pursue civil litigation, where attor-
neys fees consume a significant portion of any mone-
tary award granted to the parties.
Minitrials
A minitrial is a process by which the attorneys for
the parties present a brief version of the case to a
panel, often comprised of the clients themselves and
a neutral intermediary who chairs the process. Ex-
pert witnesses (and less frequently, lay witnesses)
may be used in presenting the case. After the presen-
tation, the clients, normally top management repre-
sentatives who by now are more aware of the
strengths and weaknesses of their positions, attempt
to negotiate a settlement of the dispute. If a negotiat-
ed settlement is not reached, the parties may allow
the intermediary to mediate the dispute or render a
non-binding advisory opinion regarding the likely
outcome of the case were it to be tried in civil court.
Minitrials are increasingly used by businesses to
resolve large-scale disputes involving PRODUCT
LIABILITY questions, antitrust issues, billion dollar
construction contracts, and mass tort or disaster liti-
gation. The federal government also makes use of
minitrials for disputes involving telecommunica-
tions. The CODE OF FEDERAL REGULATIONS establishes
procedures whereby individuals and entities under
investigation by the FCC can request a minitrial prior
to commencement of more formal administrative
proceedings. 47 CFR section 1.730.
Minitrials are often effective because they usually
result in bringing top management officials together
to negotiate the legal issues underlying a dispute.
Early in the negotiation process, upper management
is sometimes pre-occupied by the business side of a
dispute. Minitrials tend to shift management’s focus
to the outstanding legal issues. Minitrials also allow
businesses to share information with each other and
with their attorneys, providing a forum for initial
face-to-face negotiations. Management also generally
prefers the time-saving, abbreviated nature of
minitrials over the more time-consuming and costly
civil-litigation alternative. Minitrials expedite negotia-
tions as well, by making them more realistic. Once
the parties have seen their case play out in court,
even in truncated fashion, the parties are less likely
to posture over less relevant or meaningless issues.
Summary Jury Trials
Summary jury trials are an ADR technique used
primarily in federal courts, where they provide par-
ties with the opportunity to ‘‘try’’ their cases before
an advisory panel of jurors, without having to face
the final and possibly adverse decision of a regular
jury in civil court. The purpose of the summary jury
trial is to facilitate pretrial termination of cases in
which a significant impediment to negotiation is dis-
agreement between the attorneys or parties regard-
ing a civil jury’s likely findings on liability or damages
in the case. Like minitrials, summary jury trials give
the parties a chance to reach a preliminary
ASSESSMENT of the strengths and weaknesses of their
positions and proceed with negotiations from a com-
mon starting point, namely the advisory jury’s find-
ings. Both summary jury trials and minitrials can ordi-
narily be scheduled and completed before formal
civil cases would normally reach a court’s DOCKET.
Summary jury trials are presided over by a judge
or MAGISTRATE in federal district court. A ten-member
jury venire is presented to counsel for consideration.
Counsel are provided with a short character profile
of each juror and then given two challenges to arrive
at a final six-member jury for the proceeding. Each
attorney is given one hour to describe his or her cli-
ent’s case to the jury. After counsel’s presentations,
the presiding judge or magistrate delivers to the jury
a brief statement of the applicable law, and the jury
retires to deliberate. Juries are encouraged to return
a consensus verdict, but they may return a special re-
port that anonymously lists the view of each juror as
to liability and damages. After the verdict or special
report has been returned, counsel meet with the pre-
siding judge or magistrate to discuss the verdict and
to establish a timetable for settlement negotiations.
Evidentiary and procedural rules are few and flexible.
Early Neutral Evaluation
Early neutral evaluation is an informal process by
which a neutral intermediary is appointed to hear
the facts and arguments of counsel and the parties.
After the hearing, the intermediary provides an eval-
uation of the strengths and weaknesses of the par-
DISPUTE RESOLUTION ALTERNATIVES—NEGOTIATION
420 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ties’ positions and the parties’ potential exposure to
liability for money damages. The parties, counsel,
and intermediary then engage in discussions de-
signed to assist the parties in identifying the agreed
upon facts, isolating the issues in dispute, locating
areas in which further investigation would be useful,
and devising a plan to streamline the investigative
process. Settlement negotiations and mediation may
follow, but only if the parties desire. In some jurisdic-
tions, early neutral evaluation is a court-ordered ADR
technique. However, even in these jurisdictions the
parties are given the option of hiring their own neu-
tral intermediary or having the court appoint one.
The objective of early neutral evaluation is to ob-
tain an early assessment of the parties’ dispute by a
credible outsider who has no interest in the outcome
of the dispute but who has sufficient knowledge and
experience to sift through the facts and issues and
find the ground shared by the parties and the ground
separating them. Much like in the other forms of
ADR, the success of early neutral evaluation depends
largely on the disputants’ faith in the neutral inter-
mediary. It also depends in large part on the dispu-
tants’ willingness to compromise and settle the dis-
pute. Successful early neutral evaluations can lead
directly to meaningful negotiations.
Conclusion: Negotiation, ADR, and Civil
Litigation
The procedures and techniques discussed above
are the most commonly employed methods of ADR.
Negotiation plays an important role in each method,
either primarily or secondarily. However, there are
countless other ADR methods, many of which modi-
fy or combine the above methods. For example, it is
not uncommon for disputants to begin negotiations
with early neutral evaluation and then move to non-
binding mediation. If mediation fails, the parties may
proceed with binding arbitration. The goal with each
type of ADR is for the parties to find the most effec-
tive way of resolving their dispute without resorting
to litigation. The process has been criticized as a
waste of time by some legal observers who believe
that the same time could be spent pursuing the
claims in civil court, where negotiation also plays a
prominent role and litigants are protected by a pano-
ply of formal rights, procedures, and rules. But many
participants in unsuccessful ADR proceedings be-
lieve it is useful to determine that their disputes are
not amenable to a negotiated settlement before com-
mencing a lawsuit.
Despite its success over the past three decades,
ADR is not the appropriate choice for all disputants
or all legal disputes. Many individuals and entities
still resist ADR because it lacks the substantive, pro-
cedural, and evidentiary protections available in for-
mal civil litigation. For example, parties to ADR typi-
cally waive their rights to object to EVIDENCE that
might be deemed INADMISSIBLE under the rules of
court. HEARSAY evidence is a common example of ev-
idence that is considered by the parties and interme-
diaries in ADR forums but that is generally excluded
from civil trials. If a disputant believes that he or she
would be sacrificing too many rights and protections
by waiving the formalities of civil litigation, ADR will
not be the appropriate method of dispute resolution.
Additional Resources
American Jurisprudence. West Group, 1998.
http://hg.org/adr.html. Hieros Gamos Guide to Alternative
Dispute Resolution.
‘‘Inside the Minds of America’s Family Law Courts: The
Psychology of Mediation Versus Litigation in Domestic
Disputes.’’ Ezzell, Bill, 25 Law and Psychology Review
119, Spring, 2001.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
The Academy of Experts
2 South Square
LondonEngland WC1R 5HT UK
Phone: +44 (0)20 7637 0333
Fax: (0)207637 1893
URL: http://www.academy-experts.org
Primary Contact: Geoffrey Howe, President
Coast to Coast Mediation Center
715 Hygeia Ave
Encinitas, CA 92023 USA
Phone: (800) 748-6462
Fax: (760) 634-2628
URL: http://w ww.ctcmediation.com
Primary Contact: Donald D. Mohr and Elizabeth L.
Allen, Co-Founders
National Association For Community
Mediation
1527 New Hampshire Avenue
Washington, DC 20036-1206 USA
Phone: (202) 667-9700
Fax: (650) 329-9342
URL: http://www.nafcm.org
Primary Contact: Terry Amsler, Director
DISPUTE RESOLUTION ALTERNATIVES—NEGOTIATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 421
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EDUCATION
ADMINISTERING MEDICINE
Sections within this essay:
• Background
• General Policy Overview
• Authority
• Common Provisions
• State Laws
• Additional Resources
Background
Administering medicine to children and adoles-
cents while on the premises of local schools is an in-
escapable reality for contemporary educators. The
increasing incidence of students needing to take
medicine during the course of a school day has
forced school systems (and some state legislatures)
to enact and implement regulations and policies ad-
dressing the matter.
A professional research study published in the No-
vember 2000 issue of Journal of School Health,
based on a random sample of 1000 members of the
National Association of School Nurses (with 65 per-
cent responding), reported that during a typical
school day, 5.6 percent of children receive medica-
tion in school. The most reported medications ad-
ministered within school settings were (in descend-
ing order) ADHD medications (for Attention Deficit
Hyperactivity Disorders); nonprescription medica-
tions; asthma medications; analgesics, and anti-
seizure medications. Also common were antibiotics
and vitamins.
Seriously ill and/or heavily medicated students are
rarely allowed to attend classes, so the issues do not
center on them. But for those children who are only
marginally ill or disabled, the issue pits educational
systems against society at large. Schools must consid-
er safeguarding other children and staff from conta-
gious disease, the prevention of disruption in the
classroom by students exhibiting symptoms of ill-
ness, the control of cross-medicating (the sharing or
selling of medication between classmates); and the
potential for self-medication abuse while on school
premises. On the other side of the issue, the social
realities of the increasing number of households
with two working parents (or single working parent
households), coupled with employment that does
not allow for ‘‘sick day’’ benefits to attend to chil-
dren’s illnesses, often results in sick children being
sent to school, with or without medication to take.
Seventy-five percent of reporting nurses in the
2000 study delegated medication administration to
unlicensed assistive personnel (UAPs), with secre-
taries (66 percent) being the most common. Errors
in administering medications were reported by near-
ly 50 percent of the school nurses, the most common
error being missed doses (79 percent). Errors were
commonly reported to local school and/or state au-
thorities.
Faced with the growing problem of exposure to
liability in conjunction with the administration of
medicine (and in many circumstances, the adminis-
tration of controlled substances), schools have mobi-
lized over the years and demanded both guidance
and protection from liability by state legislatures. Not
all states have addressed the issue at the state level,
and persons needing information are best advised to
start with their local school districts.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 423
General Policy Overview
• As of 2001, no national laws or regulations
govern school administration of medication.
However, national guidelines available for
local ADOPTION were published at least as
early as 1990.
• Guidelines may be found at either state or
local levels. Most local policies are devel-
oped by school boards, superintendents, in-
dividuals, and other school personnel, in
collaboration with local physician or medical
advisory committees. When individuals
searching for applicable policies or regula-
tions, they should always start at the local
level and work up.
• According to a 2001 U.S. Congressional Sub-
committee report, a total of 37 states and the
District of Columbia have statutes, regula-
tions, and/or mandatory policies addressing
medication administration at schools.
• Many states have SOVEREIGN IMMUNITY laws
that shield public employees, including
school personnel and nurses, etc., from lia-
bility for NEGLIGENCE. Local procedures and
policies generally require parents’ signatures
to release school districts and employees
from liability.
• Many state and local policies permit ‘‘delega-
tion’’ of medication administration (usually
restricted to licensed nurses) to trained but
unlicensed assistive personnel (UAPs) with-
in school settings. They may be school prin-
cipals, teachers, secretaries, or administra-
tive assistants within the health services
office., school principals, or teachers. Cer-
tain duties cannot be delegated, such as se-
cured storage of controlled substances.
• Self-administration policies vary greatly from
state to state and within school districts.
Many require student assessment for age
and maturity; others simply require authori-
zations from prescribers and parents. Almost
all include signed releases of liability.
• States may require compulsory medication,
in the form of immunizations/vaccinations of
school children, as prerequisites to school
attendance. As of 2000, 23 states had passed
immunization requirements for hepatitis B
vaccinations. Many had additional require-
ments for measles, varicella, tetanus, and
diphtheria. Schools may offer free or low-
cost immunizations to students in conjunc-
tion with these requirements.
Authority
Federal law mandates that children with health
needs receive school health services, e.g., the Educa-
tion of All Handicapped Children Act of 1975 (P.L. 94-
142); Section 504 of the Rehabilitation Act of 1973
(P.L. 93-112). But federal law does not specifically ad-
dress the administering of medicine at the individual
school level. Administering medicine entails physi-
cally providing it to the ultimate user, the patient.
Federal laws and regulations that do not expressly
address, but, nonetheless impact, the administration
of medication within schools deal mostly with con-
trolled substances. They include:
• The Controlled Substances Act, 21 U.S.C.
801
• The Uniform Controlled Substances Act of
1994, 21 U.S.C. 802
• Title 21 (Food and Drugs) of the CODE OF
FEDERAL REGULATIONS, Chapter II (Drug En-
forcement Administration, Section 1300 (21
CFR 1300.01 et seq.)
The above federal references identify and define
those substances included as ‘‘controlled sub-
stances’’ (any drug as defined in the five categories
of the Acts). They include all opiates and their deriva-
tives, hallucinogenic substances, anabolic steroids,
and several psychotropic substances. Within school
settings, most drugs used to treat ADHD are con-
trolled substances, AS IS Ritalin. Controlled sub-
stances generally fall under the purview of local drug
enforcement agencies, which derive their ultimate
authority from the Federal Drug Enforcement Ad-
ministration.
But students who need medications administered
to them during the school day already have legal pos-
session (or their parents do) of any controlled sub-
stances. The school’s role is therefore limited to en-
suring safe CUSTODY, storage, and administering of
the medication, once a valid authorization is received
from parents/physician.
Most states have enacted statutes that delegate to
school systems and school boards the authority to
implement local policies addressing the administra-
tion of medicine on school premises. But those regu-
EDUCATION—ADMINISTERING MEDICINE
424 GALE ENCYCLOPEDIA OF EVERYDAY LAW
lations and policies must comply and coordinate
with state laws concerning the ‘‘unauthorized prac-
tice of medicine’’ or ‘‘unauthorized practice of nurs-
ing.’’
In 1990, the Office of School Health Programs at
the University of Colorado Health Science Center
published national recommendations for school-
based administration of medications to students.
The recommendations encouraged local policy de-
velopment with direct involvement of parents and
the public.
In 1993, the American Academy of Pediatrics Com-
mittee on School Health published its policy state-
ment, Guidelines for the Administration of Medica-
tion in School (RE9328) (reaffirmed in June 1997).
The purpose of the policy statement was to assist
state legislators and local school boards in establish-
ing somewhat uniform approaches to the growing
concern. As noted in the statement, ‘‘For most stu-
dents, the use of medication will be a convenient
benefit to control acute minor or major illnesses, al-
lowing a timely return to the classroom with minimal
interference to the student and to others.’’
Common Provisions
Typical state or local policies contain certain key
provisions; the two most basic requirements are pa-
rental consent and a medication order from the pre-
scribing physician (dentist, physician assistant, nurse
practitioner, etc.). Most regulations or policies re-
quire that a medication plan be completed by the
school nurse or health service employee and that it
contains minimum required information such as
emergency contacts and telephone numbers, aller-
gies and known side effects, the quantity of the medi-
cation delivered to the school, plans for administer-
ing medication on school field trips or planned
events, and information on self-administration. An
individual student log, documenting dates and times
of administered medicine, is usually part of the plan
on file and ultimately becomes part of the school
health record.
Requirements for self-administration of medica-
tions evoke more controversy. Students who suffer
from asthma and similar respiratory illnesses may
suffer undue panic or anxiety attacks when separated
from their inhalers. On the other hand, a few asth-
matic (and other) students nationwide have been
known to sell off their medications to fellow students
looking for a ‘‘high’’ or quick thrill. In schools where
students are permitted to keep asthma medication
close at hand, there are generally strict instructions
as to where the medication may be stored (e.g., lock-
er or backpack) and (sometimes) reserved rights on
the part of the school to monitor self-administration.
(If schools retain an ‘‘overseeing’’ role in self-
medication, they may expose themselves to more lia-
bility if they are not protected with IMMUNITY).
Policies generally should require that all medica-
tion brought to school, whether prescriptive or over-
the-counter (OTC), remain in original labeled con-
tainers. Of key concern is the access to life-sustaining
medications administered by injection, such as insu-
lin and epinephrine (to respond to treat emergency
allergic reactions). All parenteral medications and
drugs controlled by the Drug Enforcement Agency
must be appropriately secured by the schools (and
many of them require refrigeration, as well). In such
circumstances, even those students approved for
self-administration must report to a school represen-
tative to receive the required medication and any
dosage paraphernalia (such as a syringe) if needed.
Medication dosages/pills should be counted upon ar-
rival and recounted when tendered to school em-
ployees.
State Laws
ALABAMA: The state has published ‘‘recommended
guidelines’’ prepared by an advisory task force com-
prised of members from Alabama’s State Department
of Education and the Alabama Department of Public
Health. The policy differs from others in that it ex-
pressly notes that school nurses may not delegate
the administration of medications to unlicensed per-
sonnel, pursuant to Alabama’s Nurse Practice Act
(Title 34-21-1) and the 1993 state guidelines for Dele-
gation of Nursing Functions to Assistive Personnel.
The guidelines ‘‘are not meant to be regulatory’’ for
local education agencies (LEAs), but intend to offer
‘‘best practice’’ recommendations. The guidelines
allow for self-administration of prescription medica-
tion by students if permitted by local school board
policy. The guidelines are available at http://www.
schoolhealth.org/adminmed.html.
ALASKA: No applicable provisions.
ARIZONA: Title 15 of the Arizona Revised Statutes,
Chapter 15-344, provides for the administration of
prescription, PATENT, or PROPRIETARY medications by
school employees. The law delegates authority to es-
tablish policies and procedures to local school dis-
trict governing boards.
EDUCATION—ADMINISTERING MEDICINE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 425
ARKANSAS: No applicable provisions.
CALIFORNIA: The California Education Code 49423,
49423.6 requires the state board of education to
adopt regulations regarding the administration of
prescription medication in public schools. There is
no express delegation of authority.
COLORADO: Colorado Dept. of Reg. Agencies, Chap-
ter XIII, Section 7, and Colorado Board of Health
Regulations, Chapter 9, Section 105, address school
administration of medications. There is no express
delegation of authority.
CONNECTICUT: Connecticut General STATUTE 10-
212a, as well as Connecticut State Agencies Regula-
tion 10-212a-2, 5, and 6 authorize school boards of
education to adopt written policies. A new Connecti-
cut law passed in 2001 (the first of its kind in the na-
tion) expressly prohibits teachers, counselors, and
other school personnel from recommending psychi-
atric drugs for schoolchildren. The state requires
schools to document any skipped dose and the rea-
sons for it.
DELAWARE: The Code of Delaware Regulations 72-
000-008, Section 800-9, is applicable to school
nurses; there is no express delegation of authority.
DISTRICT OF COLUMBIA: D. C. Code 31-2432 to
2434 requires the D. C. Board of Education and De-
partment of Human Services to issue joint rules and
regulations. D.C. schools must obtain authorization
from the student’s parent or GUARDIAN, as well as or-
ders/instructions from the licensed physician before
administering medication.
FLORIDA: Florida Statutes Annotated 232.46 re-
quires district school boards to adopt local policies
and procedures.
GEORGIA: No applicable provisions.
HAWAII: Hawaii Revised Statute 321-242 establishes
a statewide school health services program, includ-
ing statewide requirements for medication adminis-
tration. Hawaii Administrative Code 11-146-4 is also
applicable.
IDAHO: No applicable provisions.
ILLINOIS: 105 Illinois Compiled Statutes Annotated
5/10-20.14b requires school boards to develop local
policies for school administration of medication.
INDIANA: Indiana’s 511 Indiana Administrative Code
7-21-8 establishes written medication administration
policies for public schools operating special educa-
tion programs only.
IOWA: Iowa Administrative Code 41.12(11) requires
local education agencies offering special education
programs to establish medication administration pol-
icies.
KANSAS: No applicable provisions.
KENTUCKY: No applicable provisions.
LOUISIANA: Louisiana Revised Statute 17:436.1 pre-
scribes policies for delegating of administration of
medications in schools to unlicensed personnel.
Louisiana Administrative Code 28:1.929 requires
school boards to establish guidelines consistent with
state policy.
MAINE: 20-A Maine Revised Statutes Annotated, Sec-
tion 254, Subsection 5, requires schools to adopt
local written policies and procedures.
MARYLAND: The Annotated Code of Maryland, Edu-
cation 7-401, in conjunction with Administrative Reg-
ulation 13A.05.05.08, and.10 require county boards
of education to adopt policies for administration and
storage of medication within school systems.
MASSACHUSETTS: Massachusetts was one of the
earliest to have a statute in place, dating from the
early 1970s. New regulations were promulgated in
1993, and old ones were updated. Four statutes in
the Massachusetts General Laws are pertinent. Chap-
ter 71, Section 53, requires registered nurses in all
public school districts; Chapter 94C, the Controlled
Substance Act, gives the Commissioner of Public
Health authority to make certain exceptions for dele-
gation of duties to unlicensed personnel; Chapter
112 (The Nurse Practice Act) has been amended to
include regulations governing the delegation of nurs-
ing tasks; and Chapter 71, Section 54B contains regis-
tration requirements for students receiving medica-
tions. 105 Code of Massachusetts Reg. 210.003 to
210.009 requires schools to adopt local policies con-
sistent with the above laws and regulations.
MICHIGAN: MCL 380.1178 (Revised School Code,
Act 451 of 1976) was amended in March 2000, to pro-
vide immunity from criminal or civil actions for
school personnel who administer medication to pu-
pils pursuant to parent/physician authorizations and
instructions. The law does not protect GROSS
NEGLIGENCE or willful and wanton misconduct. There
is no express delegation of authority.
MINNESOTA: Minnesota Statutes Annotated 121A.22
requires local school boards to develop prescription
medication administration procedures in conjunc-
tion with health care professionals.
EDUCATION—ADMINISTERING MEDICINE
426 GALE ENCYCLOPEDIA OF EVERYDAY LAW
MISSISSIPPI: No applicable provisions.
MISSOURI: Chapter 167 of the Missouri Revised Stat-
utes, ‘‘Pupils and Special Services,’’ Section 167.627
(August 2001) addresses state requirements of self-
administered medications for asthma ‘‘or other po-
tentially life-threatening respiratory illnesses.’’ Sec-
tion 167.181 discusses compulsory immunizations.
Section 167.191 expressly prohibits children with
contagious diseases from attending school, with pen-
alties of ‘‘not less than five nor more than one hun-
dred dollars’’ for violations.
MONTANA: No applicable provisions.
NEBRASKA: Nebraska Revised Statutes 71-6718 to
6742, in conjunction with Nebraska Administrative
Code, Chapters 59 and 95, regulate the administra-
tion of medication in schools by unlicensed person-
nel through competency assessments and procedur-
al requirements.
NEVADA: Nevada Administrative Code 632.226 re-
quires school nurses (rather than local school
boards) to develop procedures.
NEW JERSEY: Concerning self-administration of
medication by school pupils for asthma, PUBLIC LAW
2001, c.061 (S1372 2R) amends Public Law 1993,
c.308, and supplements Chapter 40 of Title 18A of
the New Jersey Statutes. In addition, New Jersey Ad-
ministrative Code 6A:16-2.3 requires district boards
of education to adopt written policies.
NEW MEXICO: New Mexico, through its 6 N.M. Ad-
ministrative Code 4.2.3.1.11.3.2(d) requires the su-
pervisory school nurse to develop and implement
written policies and procedures for clinical services,
including the administration of medication.
NEW YORK: No applicable provisions.
NORTH CAROLINA: North Carolina General Statute
115C-307(c) authorizes school boards of education
to permit school personnel to administer prescrip-
tive medications with parents’ written authoriza-
tions.
NORTH DAKOTA: No applicable provisions.
OHIO: Ohio Revised Code 3313.713 requires local
school boards of education to adopt policies permit-
ting school employees to administer medication. In
February 2000, Ohio became the 50th state to allow
advanced-practice nurses to prescribe medication
(under physician supervision). In school settings,
they have no independent authority to prescribe.
OKLAHOMA: Under 70 Oklahoma Statutes Annotat-
ed 1-116.2, school nurses and other school person-
nel must administer medications according to
STATUTORY requirements, which contain no express
delegation of authority.
OREGON: Oregon Revised Statutes 339.869 and
339.870, in conjunction with Oregon Administrative
Rule 581-021-0037, require local school district
boards to adopt policies.
PENNSYLVANIA: Pennsylvania has no statutory au-
thority, but it has a regulation, 22 Pa. Code 7.13 that
requires school districts to develop medication ad-
ministration policies that are consistent with state
department of health guidelines. Title 24 (Educa-
tion) of the Pennsylvania Consolidated Statutes An-
notated, PSA 24-13, Article XIV, School Health Ser-
vices, Sections 13-1413 and 13-1414 address
supplemental duties of school physicians and care
and treatment of pupils.
RHODE ISLAND: Title 16 (Education), Chapter 16-21
(Health and Safety of Pupils), Section 16-21-22 pro-
vides for self-medication by students who have pro-
vided schools with medical documentation. The law
also provides for immunity from civil damages for
those negligently administering epinephrine or pre-
scription inhalers; it does not protect gross negli-
gence or willful/wanton conduct from liability. The
Code of R.I. Rules 14-000-011, Section 18 requires
schools to develop procedures that include specified
minimum requirements.
SOUTH CAROLINA: No applicable provisions, but
the Charleston County School District has policies
comparable to most states.
SOUTH DAKOTA: Article 46:13 addresses medica-
tion administration, including self-administration,
through delegation of tasks generally within the pur-
view of licensed registered nurses. There is no ex-
press mention of application to schools.
TENNESSEE: Tennessee Code Annotated 49-5-415
requires licensed health care professionals to admin-
ister medications, but school boards may authorize
unlicensed personnel to assist students with self-
administration.
TEXAS: House Bill 1688, signed into law by Governor
Perry in June 2001, amends Texas Chapter 38, Educa-
tion Code, to add provisions regarding self-
administration of prescription asthma medicine by
public school students while on school property or
at school-related events or activities. School-based
EDUCATION—ADMINISTERING MEDICINE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 427
Health Centers and their services are generally dis-
cussed in Chapter 38.011. Texas Education Code
22.052 provides for immunity from civil liability con-
ditioned upon the adoption of compliant school dis-
trict policies.
UTAH: Utah Code Annotated 53A-11-601 authorizes
schools to develop policies.
VERMONT: Vermont has no statutory guidance, but
Code of Vermont Rule 22-000-006, Section 4220, re-
quires schools to incorporate specified procedures
into their local administration regulations.
VIRGINIA: The Code of Virginia, as amended, Sec-
tion 22.1-274.2 and Section 22.1-78, address self-
administration by students of asthma medication;
permissions are granted for each school year and re-
newed annually. The Code delegates to local school
superintendents the authority to establish additional
regulations for administration of medicines to stu-
dents. The Code of Virginia 54.1-3408 authorizes
school boards to train employees to administer
drugs.
WASHINGTON: The Revised Code of Washington,
RCW 28A.210.260, addresses administration of oral
medication in public and private schools. It delegates
policy-making to public school districts and private
schools. RCW 28A.210.270 expressly provides for im-
munity from liability for school employees.
WEST VIRGINIA: West Virginia Code of State Rules
126-25-1 and 126-27-1 establish standards for admin-
istration of oral, topical, and emergency medication
in West Virginia public schools by persons not li-
censed as health care providers. Code 18-5-22a re-
quires school boards of education to develop poli-
cies.
WISCONSIN: Wisconsin Statute 118.29 requires
school boards to develop policies, including autho-
rizing school employees to administer medications.
WYOMING: The Wyoming Administrative Code, Edu-
cation, Chapter 6, Section 17(a)(i)(F) requires school
districts to establish local programs for handling,
storage, and administration of medications.
Additional Resources
‘‘Appendix VI: State Statutes, Regulations, and Mandatory
Policies Addressing the Administration of Medication
to Students.’’ U. S. Government Printing Office, GAO
Publication-01-1011. Available at http://www.gao.org
‘‘Few Incidents of Diversion or Abuse Identified by
Schools.’’ Jones, Paul L., FDCH Government Account
Reports, 14 September 2001. Available at http://
www.law.cornell.edu/topics/civil_procedure.html
‘‘Guidelines for the Administration of Medication in
School (RE9328).’’ Policy Statement of the American As-
sociation of Pediatrics. 1993, 1997. Available at http://
www.law.cornell.edu/topics/civil_procedure.html
‘‘Medication Administration Practices of School Nurses.’’
McCarthy, Ann Marie, et al. Journal of School Health,
November 2000.
U. S. Code, Title 21: Food and Drugs, Chapter I7:National
Drug Enforcement Policy. U. S. House of Representa-
tives. Available at hhtp://uscode.ho,use.gov/title_
21.htm
‘‘Who Dispenses Pharmaceuticals to Children?’’ Esielion,
Elaine, and Joanna Persis Hemmat. Journal of School
Health, December 1996.
EDUCATION—ADMINISTERING MEDICINE
428 GALE ENCYCLOPEDIA OF EVERYDAY LAW
EDUCATION
ATHLETICS
Sections within this essay:
• Background
• Amateur v. Professional Athletes
• The NCAA v. Professional Sports Associa-
tions
• Other Legal Issues Confronting Amateur and
Pro Athletes
• Title IX and Sex Discrimination in Amateur
Athletics
• Title IX: Background
• Title IX: Parties Subject to Liability
• Title IX: Standards for Liability
- Student-Athletes’ Title IX Claims
- Coaches’ Title IX Claims
• Title IX: Remedies
• Additional Resources
Background
The law governing amateur athletics is an amal-
gam of statutes, regulations, rules, procedures, and
judicial decisions that apply to individual athletes,
the academic institutions for which they compete,
and most persons employed by those academic insti-
tutions. This body of law spans several areas of Amer-
ican JURISPRUDENCE, including TORT LAW, tax law,
ANTITRUST LAW, and CIVIL RIGHTS law, among others.
Thus, the law governing amateur athletics is not a
single body of law unto itself.
Amateur v. Professional Athletes
The most basic difference between amateur and
professional athletes lies in the rewards that each
group receives for its athletic performances. General-
ly speaking, amateur athletes are not paid for their
athletic performances, though the U.S. Gymnastics
Association and the U.S Figure Skating Association
now allow member athletes to sponsor commercial
products so long as the money earned is placed into
trust. Professional athletes, by contrast, are typically
paid annual salaries plus incentives tied to individual
and team performance.
Athletic scholarships are the biggest reward of-
fered to amateur athletes. Athletic scholarships pay
for some or all of a student-athlete’s tuition, includ-
ing room and board, as long as the student-athlete
remains enrolled at the school, continues to partici-
pate in the athletic program for which the scholar-
ship was awarded, and maintains academic eligibility.
Amateur athletes who are compensated for their per-
formance in any way beyond their athletic scholar-
ships can be stripped of their amateur status by the
National Collegiate Athletic Association (NCAA).
The NCAA v. Professional Sports
Associations
Headquartered in Shawnee, Kansas, the NCAA is
the governing body that regulates athletic competi-
tions among many colleges and universities. Colleges
and universities must elect to join the NCAA, and
once they do they relinquish ultimate JURISDICTION
over their athletic programs, student-athletes, and
coaches. To remain a member of the association, col-
leges and universities have to abide by NCAA rules,
regulations, and policies.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 429
Pursuant to its governing authority, the NCAA has
established criteria that college athletes must satisfy
to stay eligible for NCAA sanctioned athletic competi-
tions. One of these criteria is that student-athletes be
in good academic standing and maintain a certain
minimum grade-point average. Schools and coaches
are subject to NCAA restrictions regulating how high
school students may be recruited, while both coach-
es and athletes are subject to discipline for violating
NCAA rules relating to use of illegal or banned sub-
stances, gambling, point-shaving, and BRIBERY.
The NCAA conducts its own investigations of al-
leged rule violations and assesses penalties based on
the severity of the violation, after giving the sus-
pected offender an opportunity to be heard during
a public proceeding in which most fundamental legal
rights may be invoked. Penalties may be assessed
against an offending school, coach, or athlete, and
entail loss of scholarships and loss of post season
awards, and include fines, PROBATION, suspensions,
FORFEITURE of games, and forfeiture of tournament
and playoff opportunities. Despite the sometimes-
daunting power exercised by the NCAA, being a
member-school is a symbol of prestige, and many
schools use their membership as an enticement dur-
ing the recruiting process.
Professional sports teams in the National Football
League (NFL), Major League Baseball (MLB), the Na-
tional Hockey League (NHL), and the National Bas-
ketball Association (NBA) are also governed by vol-
untary associations, but their associations are
comprised of the individual owners who buy profes-
sional sports franchises and agree to abide by the
rules, policies, and procedures established by the
league. Also known as the constitution and by-laws,
these rules, policies, and procedures generally gov-
ern the circumstances under which franchises may
move their team from one city to another; players
may be drafted, sign contracts, become free agents,
and receive retirement pensions; and owners, coach-
es, and players may be fined, suspended, banned, or
otherwise punished. The league’s constitution and
by-laws may also be influenced by the terms of any
COLLECTIVE BARGAINING AGREEMENT entered into be-
tween franchise owners and labor representatives for
the players’ union and by any applicable antitrust
laws (i.e., federal laws that protect trade and com-
merce from restraints, monopolies, PRICE-FIXING, and
price DISCRIMINATION).
Each professional league also allows its teams to
set their own rules, which must be consistent with
the league’s rules. Some teams set rules that the
players consider unreasonable. For example, many
teams prohibit players from growing facial hair or
wearing jewelry, require players to make themselves
available for interviews, and subject players to cur-
fews during the season. The NHL, NBA, NFL, and
MLB have all appointed commissioners to oversee
the administration of their rules, and individuals
punished for violating a league or team rule may ap-
peal to the commissioner’s officer for review.
Other Legal Issues Confronting Amateur
and Pro Athletes
Amateur and professional athletes must comply
with state and federal laws that exist independent of
the rules established by the athletic association in
which they are members. Nonetheless, many profes-
sional and amateur athletes are surprised to learn the
extent in which they must understand the intricacies
of civil and criminal law if they want to stay out of
court. For example, professional athletes are re-
quired to pay INCOME TAX to every state in which they
appear to play a game, and not just to the state in
which their teams plays home games. Amateur ath-
letes may be taxed on the funds they receive for ath-
letic scholarships when those funds exceed the cost
of tuition, room, board, and necessary supplies.
Many amateur and professional athletes are also
surprised to learn that they can be held civilly and
criminally liable for injuries they inflict on other ath-
letes during competition, even in contact sports such
as hockey and football. Contact-sport athletes con-
sent to some contact as part of the game and assume
the risk for injuries that are sustained during the nor-
mal and ordinary course of an athletic contest. But
under the COMMON LAW, no athlete assumes the risk
for injuries that result from the reckless or intention-
al misconduct of another athlete. Depending on the
laws of the state in which an injury is inflicted, the
blameworthiness of the misconduct, and the severity
of the injury, athletes who recklessly or intentionally
injure competitors during an athletic contest may be
prosecuted in criminal court or sued in civil court for
battery, ASSAULT, or other such related unlawful acts.
A minority of jurisdictions also allow athletes to re-
cover for injuries sustained from the negligent con-
duct of competitors.
In some cases academic institutions may be held
liable for injuries suffered by athletes. As a general
rule, coaches, trainers, and referees must exercise
reasonable care to prevent foreseeable injuries to
EDUCATION—ATHLETICS
430 GALE ENCYCLOPEDIA OF EVERYDAY LAW
athletes, and under no circumstances may a school
employee encourage athletes to injure opponents or
competitors. If a school employee fails to exercise
the degree of care that is reasonable under the cir-
cumstances, the school itself may be held vicariously
liable under the doctrine of respondeat superior,
which makes principals liable for the wrongful acts
of their agents, when those acts are committed in the
ordinary course and scope of the agent’s authority.
Because the relationship between the law and am-
ateur and professional athletes can be complicated,
many colleges, universities, and pro sports franchises
require athletes to attend classes that introduce
them to a variety of legal issues. Some of these class-
es are geared solely toward male athletes. Given the
number of highly publicized cases in which male ath-
letes have been ACCUSED of sexual assault and vio-
lence, these classes are intended to help male ath-
letes avoid situations where they can get themselves
into trouble.
Title IX and Sex Discrimination in
Amateur Athletics
In amateur athletics another hotly litigated issue
involving both genders is SEX DISCRIMINATION. Title
IX of the Education Amendments of 1972 provides
that ‘‘[n]o person in the United States may, upon the
basis of sex, be excluded from participation in, be de-
nied the benefits of, or be subjected to discrimina-
tion under any education program or activity receiv-
ing federal financial assistance.’’ Pub. L. 92-318, Title
IX, section 901, June 23, 1972, 86 Stat. 373, codified
at 20 U.S.C.A. sections 1681 et seq. The phrase ‘‘edu-
cation program or activity’’ has been broadly inter-
preted to include athletic programs. Title IX may be
enforced by the federal government in an adminis-
trative proceeding or by a private individual in civil
court. The law guarantees EQUAL PROTECTION at all
federally funded academic institutions for both male
and female student-athletes and male and female
persons employed by school athletic programs.
Title IX: Background
Congress enacted Title IX to serve as a catalyst
against sex discrimination at federally funded aca-
demic institutions, to encourage the development of
athletic programs for female student-athletes, and to
stimulate female participation in school sports. With-
in eleven years of Title IX’s enactment, statistics re-
vealed that progress was being made toward these
goals. In 1983 more than 150,000 women were par-
ticipating in college sports, compared to 32,000 in
1972, while the number of colleges and universities
offering athletic scholarships to women increased
from 60 in 1974 to over 500 in 1981.
However, further progress was impeded by the
U.S. Supreme Court’s decision in Grove City College
v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516
(U.S. 1984), where the court ruled that Title IX ap-
plied only to the athletic programs that directly re-
ceived funding from the federal government and not
to athletic programs that received funding from the
college, even if the college itself was a federally fund-
ed institution. Because very few college athletic de-
partments ever receive direct federal funding, the Su-
preme Court’s decision in Grove City essentially
insulated virtually all collegiate athletic programs
from liability for sex discrimination under Title IX. In
response to Grove City, the U.S. Department of Edu-
cation (DOE) suspended 29 Title IX compliance
cases, and many universities began cutting women’s
athletic programs.
In 1987 Congress formulated its own response to
Grove City by enacting the Civil Rights Restoration
Act (CRRA). Pub. L. 92-318, Title IX, section 901, June
23, 1972, 86 Stat. 373, codified at 20 U.S.C.A. section
1685. The CRRA adopted an ‘‘institution-wide’’ ap-
proach, providing that if any one program within an
educational institution receives federal funding, then
all of the programs or activities at that institution are
subject to Title IX’s requirements. As a result, all ath-
letic programs offered by academic institutions re-
ceiving any form of federal funds have been subject
to the strictures of Title IX since March 22, 1988, the
effective date of the CRRA.
Title IX empowers every federal department and
agency to extend financial assistance to educational
institutions by way of grant, loan, or contract. The
U.S. Departments of Agriculture, Health and Human
Services, and Education have all extended financial
assistance pursuant to Title IX. However, the DOE is
primarily responsible for implementing Title IX, and
it has delegated much of its responsibility to the Of-
fice of Civil Rights (OCR). The OCR has responsibility
for promulgating regulations to enforce Title IX, initi-
ating administrative proceedings against alleged vio-
lators, and terminating federal funding for proven vi-
olators. Although neither Title IX nor any of its
amendments expressly authorizes individuals to
bring a lawsuit against a violator independent of an
action brought by the DOE or OCR, the U.S. Su-
EDUCATION—ATHLETICS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 431
preme Court has ruled that Title IX implies a private
cause of action pursuant to which aggrieved individ-
uals may seek REDRESS for sex discrimination in fed-
eral court without first having exhausted their ad-
ministrative remedies. Cannon v. University of
Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560
(U.S. 1979).
Title IX: Parties Subject to Liability
Title IX conditions the offer of federal funding on
each funding recipient’s promise not to discriminate
on the basis of sex, in what amounts to a contract be-
tween the government and the funding recipient. El-
ementary schools, junior high schools, high schools,
and both undergraduate and graduate colleges and
universities must comply with Title IX if they receive
federal funding and wish to continue receiving it.
However, federally funded recipients may be ex-
empted from liability under Title IX if they have had
a continuous policy and tradition of admitting stu-
dents of only one gender. 20 U.S.C.A. section
1681(a)(5). Federally funded recipients are also ex-
empt from Title IX suits that arise from employment
discrimination claims over jobs in which sex is a bona
fide occupational qualification, as might be the case
for persons hired to clean or monitor locker rooms
and toilet facilities.
As noted above, athletic departments and athletic
programs infrequently receive funding directly from
the federal government. The same holds true for di-
rectors, coaches, trainers, and other individuals em-
ployed by school athletic programs. Instead, school
boards, school districts, colleges, and universities are
the most common recipients of federal funding, and
thus they are also the most common targets of Title
IX LITIGATION. Since Title IX has been interpreted as
abrogating the states’ Eleventh Amendment
IMMUNITY, state governments themselves may also be
sued in federal court for discrimination that occurs
at one of their federally-funded, state-sponsored aca-
demic institutions.
Title IX: Standards for Liability
Title IX bars sex discrimination in any interscho-
lastic, intercollegiate, intramural, or club athletic pro-
gram offered by a federally-funded academic institu-
tion. This prohibition has two prongs. The first
prong prohibits sex discrimination against students
participating in or seeking to participate in a school-
sponsored sport. The second prong prohibits sex
discrimination against persons employed or seeking
employment with a school sponsored athletic pro-
gram, including persons employed or seeking em-
ployment as athletic directors, athletic coordinators,
coaches, physical therapists, trainers, or any other
job within a school’s athletic program.
Under both prongs, the law requires federally
funded academic institutions to guarantee equal op-
portunity for student-athletes and employees with-
out regard to gender. Ten specific factors may be
considered in determining whether this obligation
has been met: (1) the particular sports and levels of
competition selected by an institution to accommo-
date members of both sexes; (2) the quality and
quantity of equipment and supplies that are provid-
ed to teams of each gender; (3) the scheduling of
games and practice time; (4) travel and per diem al-
lowances; (5) the opportunities to receive coaching
and academic tutoring; (6) the compensation of
coaches and tutors; (7) the provision of locker
rooms, as well as practice and competitive facilities;
(8) the provision of medical and training facilities
and services; (9) the provision of housing and dining
facilities and services; and (10) the publicity afforded
to each gender’s athletic programs. 34 C.F.R. section
106.41.
The circumstances of each case determine how
much weight is allotted to a given factor in resolving
Title IX disputes. Nonetheless, a significant portion
of litigation has focused on the first factor, and courts
will normally ask three questions when evaluating
whether an academic institution has taken steps to
effectively accommodate athletes of both sexes: (1)
does the number of athletic opportunities provided
for males and females proportionately represent
their respective overall enrollments to a substantial
degree? (2) does the academic institution have a his-
tory of expanding programs to accommodate female
interests and abilities in sports? and, if so, (3) has that
institution fully and effectively accommodated those
interests and abilities? If a preponderance of the
EVIDENCE offered during a Title IX proceeding an-
swers these questions in the affirmative, the
DEFENDANT will normally prevail. Plaintiffs are more
likely to prevail when the defendant has a poor or in-
consistent record on these issues.
Student-Athletes’ Title IX Claims
A court’s analysis will also depend on whether the
plaintiff is a disgruntled student-athlete or a disgrun-
tled employee. For disgruntled student-athletes,
Title IX does not compel federally funded education-
EDUCATION—ATHLETICS
432 GALE ENCYCLOPEDIA OF EVERYDAY LAW
al institutions to sponsor one program for each gen-
der in every sport they sponsor. However, if a school
sponsors only one program for a sport, then that
school must allow members of both sexes to try out
for the team, unless the sport is a contact sport, in
which case the school may limit participation to one
gender. Conversely, if a school sponsors only one
program for a contact sport and then allows mem-
bers of both sexes to compete for the team, the
school may not exclude an athlete from the team on
account of his or her gender. ‘‘Contact’’ sports in-
clude boxing, wrestling, rugby, ice hockey, football,
and basketball. 45 CFR section 86.41. Non-contact
sports include volleyball, baseball, tennis, and swim-
ming.
Disgruntled students may also ALLEGE that they
have been victims of SEXUAL HARASSMENT in violation
of Title IX. Sexual harassment typically consists of re-
ceiving unwanted sexually oriented comments, re-
ceiving unwanted sexually oriented physical contact,
or working in a sexually charged environment. The
threshold of liability is higher for sexual harassment
than it is for sex discrimination. To prevail on a Title
IX sexual harassment claim, a plaintiff must show
that the institution was aware of the harassment, ex-
ercised control over both the harassed and the envi-
ronment in which the harassment occurred, and that
harassment was serious enough to have the systemic
effect of denying the victim equal access to partici-
pate in an athletic program. Mere name-calling or
teasing will not give rise to a Title IX harassment
claim, even when the offensive comments single out
differences in gender.
Courts are much more inclined to find that offen-
sive comments give rise to Title IX liability when they
are made by a coach or person acting in an official
capacity for the academic institution. Plaintiffs are
less likely to prevail when the offensive behavior
takes the form of student-on-student or athlete-on-
athlete harassment. In such instances, the plaintiff
must not only prove that the academic institution
was aware of the harassment and had authority to
stop the harassment but also that the harassment
was ‘‘so severe, pervasive, and objectively offensive’’
that it amounted to a ‘‘deliberate indifference’’ by
the institution in failing to stop it. Davis Next Friend
LaShonda D. v. Monroe County Board of Educa-
tion, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839
(U.S. 1999). Thus, sexual harassment by fans, ath-
letes, or coaches from opposing schools is generally
not actionable.
Coaches’ Title IX Claims
The STATUTORY proscription against sex discrimi-
nation in education programs and activities encom-
passes employment discrimination, which means
that any person working for an athletic program at
a federally funded academic institution is entitled to
protection from Title IX. The law protects employees
in all aspects of their employment, ranging from hir-
ing and compensation to promotion, demotion, sus-
pension, and termination, regardless of the position
held by the employee and regardless of whether the
federally funded academic institution is a tiny ele-
mentary school or an enormous Division I university.
Over the last ten years a large number of Title IX
employment discrimination complaints have been
filed by college coaches. Frequently, these claims al-
lege that the head coach of a women’s college team
is being discriminated against because she is being
paid less than the head coach of the men’s team for
the same sport and from the same school. Courts will
consider several factors in evaluating these claims,
including the following: (1) the differing rates of
compensation; (2) the duration of the contracts; (3)
provisions relating to contract renewal; (4) the rela-
tive training and experience of the two coaches; (5)
the nature of the coaching duties performed by each;
(6) working conditions; (7) professional standing;
(8) other terms and conditions of employment; and
(9) other professional qualifications.
In Stanley v. University of Southern California,
178 F.3d 1069 (9th Cir. 1999), the Ninth Circuit Court
of Appeals discussed what it considered the relevant
professional qualifications and conditions of employ-
ment in evaluating a coach’s Title IX claim based on
pay disparity. The case began when Marianne Stan-
ley, the head coach of the women’s basketball team
at the University of Southern California (USC), sued
the school for Title IX discrimination after learning
that her $64,000 annual salary was less than half of
the salary paid to the head coach of the men’s bas-
ketball team, George Raveling, who made $135,000
annually.
The court conceded that both coaches were ex-
tremely well qualified for their jobs. Raveling had 31
years of experience, while Stanley had 16 years of ex-
perience. Raveling had won coach-of-the-year hon-
ors twice, had been named assistant coach for a U.S.
Olympic team, and had marketing and promotional
experience. Stanley had won three national champi-
onships and had marketing and promotional experi-
ence of her own. However, the Ninth Circuit ob-
EDUCATION—ATHLETICS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 433
served that Raveling was also required to conduct
twelve outside speaking engagements per year,
make himself accessible to the media for interviews,
and participate in certain activities designed to pro-
duce donations and endorsements for the USC Ath-
letic Department as a whole. Stanley’s position as
head coach of the women’s team did not require her
to engage in the same intense level of promotional
and revenue-raising activities. Moreover, the court
found, Raveling’s activities generated 90 times more
revenue for the school than did Stanley’s activities.
These differences justified the disparity in pay for the
two coaches, the court concluded.
Other Title IX plaintiffs have been more success-
ful. For example, in the unpublished case Tyler v.
Howard University, No. 91-CA-11239 (D.C. Sup.Ct.
June 24, 1993), a District of Columbia Superior Court
jury awarded $2.4 million to the Howard University
women’s basketball coach, Sanya Tyler, after she of-
fered proof that the school had afforded her inade-
quate office space, poor locker room facilities, no as-
sistant coach, and about half the salary of the men’s
head coach. The jury award was later reduced to an
undisclosed amount via an OUT-OF-COURT
SETTLEMENT, but not before the school gave her a big-
ger office and upgraded her team’s locker room facil-
ities.
Title IX: Remedies
A plaintiff instituting a private action to enforce
Title IX may not ordinarily recover COMPENSATORY
DAMAGES, unless the plaintiff offers evidence that the
discrimination was willful, deliberate, or intentional.
Injunctive relief is the remedy most regularly sought
in Title IX actions. Injunctions may take the form of
an order compelling an academic institution to cease
an offending practice or an order compelling the in-
stitution to take specific action to level the playing
field for the victims of discrimination. Prevailing Title
IX plaintiffs may also recover attorney fees and ex-
pert witness fees pursuant to 42 U.S.C.A. section
1988. Additionally, when the Title IX defendant is a
state government, plaintiffs may pursue remedies
available under the Civil Rights Act, which prohibits
discrimination by state actors. 42 U.S.C.A. section
1983. Both compensatory and PUNITIVE DAMAGES are
recoverable in section 1983 actions.
Litigants who are unhappy with a federal agency’s
decision made pursuant to Title IX may generally ap-
peal that decision to a federal district court as provid-
ed in 20 U.S.C.A. section 1683. However, if the agen-
cy’s decision involves terminating or refusing to
grant or to continue financial assistance upon a find-
ing of failure to comply with a Title IX requirement,
then JUDICIAL REVIEW may only be pursued as provid-
ed in 5 U.S.C.A. sections 701 et seq. Title IX does not
contain a STATUTE OF LIMITATIONS. So both adminis-
trative agencies and judicial bodies rely on the most
analogous STATUTE of limitations provided by the law
of the state from which the discrimination complaint
originated.
Additional Resources
American Jurisprudence. West Group, 1998.
‘‘Howard’s Tyler Savors Fight, Refocuses on Women’s
Team.’’ Hente, Karl, Washington Post, November 21,
1993.
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Civil Liberties Union (ACLU)
1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
E-Mail: info@aclu.org
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive
Director
Center for Human Rights and Constitutional
Law
256 S. Occidental Blvd.
Los Angeles, CA 90057 USA
Phone: (213) 388-8693
Fax: (213) 386-9484
E-Mail: mail@centerforhumanrights.org
URL: http://www.centerforhumanrights.org
Primary Contact: Peter A. Schey, Executive Director
National Organization of Bar Counsel
515 Fifth Street, NW
Washington, DC 2001-2797 USA
Phone: (202) 638-1501
Fax: (202) 638-0862
URL: http://www.nobc.org
Primary Contact: Barbara L. Margolis, President-
Elect
EDUCATION—ATHLETICS
434 GALE ENCYCLOPEDIA OF EVERYDAY LAW
EDUCATION
BILINGUALISM
Sections within this essay:
• Background
- Types of Bilingual Education
- Conflicting Philosophies
• Historical Perspective
• Landmark Legislation
- Setting the Stage
- Civil Rights Act (1964)
- Bilingual Education Act (1968)
- Lau v. Nichols (1974)
• State and Local Initiatives
• Grants and Programs
• Additional Resources
Background
At the beginning of the twenty-first century there
were some three million children in the United
States who were classified as Limited English Profi-
cient (LEP). For much of the twentieth century these
students would have been placed in so-called ‘‘im-
mersion programs,’’ in which they would be taught
solely in English until they understood it as well or
better than their native tongue. Beginning in the
1960s there was a gradual shift toward bilingual edu-
cation, in which students can master English while
retaining their native-language skills.
Types of Bilingual Education
There is a difference between bilingual programs
and English as a Second Language (ESL) programs,
although bilingual programs include an ESL compo-
nent. Bilingual programs are designed to introduce
students to English gradually by working with them
in both English and their native tongue. The students
are able to master English without losing proficiency
in the native language. In bilingual or dual language
immersion, the class typically includes English speak-
ing students and LEP students who share the same
native language. Instruction is given in both English
and the native language. In developmental or late-
exit programs, all students share the same language;
instruction begins in that language but gradually
shifts to English as the students become more profi-
cient.
Transitional or early-exit programs are similar to
developmental programs, except that the goal is
mastery of English rather than bilingualism. Students
who become proficient in English are transferred to
English-only classes.
Bilingualism is not generally a goal in ESL pro-
grams. In sheltered English or structured immersion
programs, LEP students are taught in English (sup-
plemented by gestures and other visual aids). The
goal is acquisition of English. Pull-out ESL programs
include English-only instruction, but LEP participants
are ‘‘pulled out’’ of the classroom for part of the day
for lessons in their native tongue.
Conflicting Philosophies
Bilingual education in the United States is a com-
plex cultural issue because of two conflicting philos-
ophies. On the one hand is the idea that the United
States welcomes people from all societies, from all
walks of life. Immigrants have long seen the States
as the ‘‘Land of Opportunity,’’ in which individuals
can rise to the top through hard work and determi-
nation. They can build new identities for themselves,
GALE ENCYCLOPEDIA OF EVERYDAY LAW 435
but they can also hold on to their past culture with-
out fear of reprisal. At the same time, the United
States is also the great ‘‘melting pot’’ in which immi-
grants are expected to assimilate if they wish to avail
themselves of the many opportunities for freedom
and success. Everyone who comes to the States, so
they are told, should want to become American.
Thus there are people who believe strongly that
erasing an immigrant’s native tongue is erasing a key
cultural element. People are entitled to speak and
use their native languages as they please; anything
less goes against the freedom for which the United
States stands. Besides, having proficiency or fluency
in more than one language is a decided advantage in
a world that has become more interdependent.
There are other people who believe, equally
strongly, that everyone who lives and works in the
United States should speak, read, and write in En-
glish. Those who oppose bilingual programs for LEP
students believe that allowing children to learn in
their native tongue puts them at a disadvantage in a
country in which English is the common language.
A student whose instruction is in another language,
they say, may never master English. This closes doors
to opportunities including higher education and
choice of career.
There is no uniform opinion even among immi-
grant parents of LEP children. Some parents want
their children to be taught in their native tongue as
a means of preserving their culture. Others, wishing
their children to have the same opportunities as na-
tive speakers of English, want their children to be
taught in English from the outset.
The one point on which everyone seems to agree
is that LEP children deserve the best educational op-
portunities available, and any language program
must be structured enough to give them a good
foundation, while it remains flexible enough to meet
their varied needs.
Historical Perspective
Although we tend to think of bilingualism in the
United States as a modern issue, in fact it has always
been a part of our history. In the early days of explo-
ration and colonization, French, Spanish, Dutch, and
German were as common as English. By 1664, the
year that the British took control of New York from
the Dutch, there were some 18 languages (not in-
cluding the native American tongues) spoken in
lower Manhattan alone. No doubt many of the inhab-
itants of the colony were conversant in more than
two languages.
German and French remained common in colo-
nial North America. Many Germans educated their
children in German-language schools. Although
many colonial leaders (among them Benjamin Frank-
lin) complained about bilingualism, it was generally
accepted. In fact, during and after the American Rev-
olution, such documents as the ARTICLES OF
CONFEDERATION were published in both English and
German.
During the nineteenth century millions of immi-
grants came to the United States and brought their
languages with them. German remained popular, as
did other European tongues. Spanish was intro-
duced when the United States took possession of
Texas, Florida, and California from Spain.
The enormous wave of IMMIGRATION that began in
the 1880s and lasted until the early 1920s brought a
change in sentiment toward bilingual education. The
goals of voluntary assimilation were gradually re-
placed by strident calls for ‘‘Americanization.’’ In
Puerto Rico, Hawaii, and the Philippines (which the
United States had acquired after the Spanish-
American War in 1898), English was to be the lan-
guage of instruction even though most of these new
Americans spoke no English at all. In 1906, Congress
passed a law, the first language law ever passed, re-
quiring naturalized citizens to be able to speak En-
glish. Anti-bilingual sentiment got stronger as more
immigrants poured into the United States. Anti-
German sentiment, which reached its peak when the
United States entered World War I in 1917, caused
some communities to ban the use of German in pub-
lic.
By the end of the war, bilingualism had fallen out
of favor even in areas where it had thrived. In 1924
strict immigration quotas sharply reduced the num-
ber of new foreigners coming into the United States.
For almost the next 40 years, bilingual education in
U. S. schools was almost exclusively based on varia-
tions of immersion; students were taught in English
no matter what their native tongue was, and those
who did not master English were required to stay
back in the same grade until they became proficient.
EDUCATION—BILINGUALISM
436 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Landmark Legislation
Setting the Stage
Bilingual education in the United States was
pushed back into the spotlight as a direct result of
the 1959 revolution in Cuba. After Fidel Castro over-
threw the dictatorship and established a Communist
government, many middle- and upper-class Cubans
fled to the United States. A large number of these ref-
ugees settled in Florida. Well-educated but with little
in the way of resources, they were assisted quite gen-
erously by the federal and state governments.
Among this assistance was ESL instruction, provid-
ed by the Dade County (Florida) Public Schools. In
addition, the school district launched a ‘‘Spanish for
Spanish Speakers’’ program. In 1963, a bilingual edu-
cation program was introduced at the Coral Way Ele-
mentary School in Miami. Directed by both U. S. and
Cuban educators, the program began in the first
through third grades. U. S. and Cuban students re-
ceived a half day of English and a half day of Spanish
instruction; at lunch time and recess and during
music and art classes the groups were mixed togeth-
er. Within three years the district was able to report
benefits for both groups of students, who were now
not only bilingual but also bicultural. This was no ac-
cident: the goal of the Coral Way initiative was to pro-
mote exactly this level of fluency.
The Civil Rights Act (1964)
The CIVIL RIGHTS Act of 1964 did not address bilin-
gual education directly, but it opened an important
door. Title VI of the Act specifically prohibits
DISCRIMINATION on the basis of race, color, or nation-
al origin in any programs or activities that receive
federal financial assistance. What this means, among
other aspects, is that school districts that receive fed-
eral aid are required to ensure that minority students
are getting the same access to programs as non-
minorities. This minority group includes language
minority (LM) students, defined as students who live
in a home in which a language other than English is
spoken. (Although some LM students are fluent in
English, many are classified as LEP.) Title VI’s critical
role in bilingualism would be made clear a decade
later in the Lau v. Nichols case.
Bilingual Education Act (1968)
The Elementary and Secondary Education Act of
1968 was another important step for bilingual educa-
tion. In particular, Title VII of that act, known as the
Bilingual Education Act, established federal policy for
bilingual education. Citing its recognition of ‘‘the
special educational needs of the large numbers chil-
dren of limited English-speaking ability in the United
States,’’ the Act stipulated that the federal govern-
ment would provide financial assistance for innova-
tive bilingual programs. Funding would be provided
for the development of such programs and for imple-
mentation, staffing and staff training, and long-term
program maintenance.
Title VII has been amended several times since its
establishment, and it was reauthorized in 1994 as
part of the Improving America’s Schools Act. The
basic goal has remained the same: access to bilingual
programs for children of limited means.
Lau v. Nichols
Probably the most important legal event for bilin-
gual education was the Lau v. Nichols case, which
was brought against the San Francisco Unified
School District by the parents of nearly 1,800 Chi-
nese students. It began as a discrimination case in
1970 when a poverty lawyer decided to represent a
Chinese student who was failing in school because
he could not understand the lessons and was given
no special assistance. The school district countered
that its policies were not discriminatory because it of-
fered the same instruction to all students regardless
of national origin. The lack of English proficiency was
not the district’s fault.
Lower courts ruled in favor of the San Francisco
schools, but in 1974 the U. S. Supreme Court ruled
unanimously in favor of the plaintiffs. In his opinion,
Justice William O. Douglas stated simply that ‘‘there
is no equality of treatment merely by providing stu-
dents with the same facilities, textbooks, teachers,
and curriculum; for students who do not understand
English are effectively foreclosed from any meaning-
ful education.’’ The Court cited Title VI of the Civil
Rights Act, noting that the students in question fall
into the protected category established therein.
What Lau v. Nichols did not do was establish a
specific bilingual policy. Individual school districts
were responsible for taking ‘‘affirmative steps’’ to-
ward reaching the goal of providing equal education-
al opportunities for all students.
State and Local Initiatives
In the 1960s there were no state bilingual pro-
grams; many states actually had English-only instruc-
tion laws on their books. After the Civil Rights Act
and the Bilingual Education Act, states began to take
more initiative. In 1971, Massachusetts became the
EDUCATION—BILINGUALISM
GALE ENCYCLOPEDIA OF EVERYDAY LAW 437
first state to establish a bilingual mandate. Under this
mandate, any school that had 20 or more students
of the same language background was required to
implement some sort of bilingual program.
A decade later, 11 more states had passed bilin-
gual education laws, and an additional 19 offered
some sort of legislative efforts in that direction.
Today, bilingual or ESL education is offered in some
form by every state. Not surprisingly, those states
with the highest concentration of immigrants (New
York, California, Texas, Florida) tend to have the
most comprehensive programs. In fact, according to
the most recent data from the National Clearing-
house for Bilingual Education (NCBE), 18 of the 20
urban school districts with the highest LEP enroll-
ment are in one of these four states. Some states
fund all bilingual education programs; others fund
only bilingual or only ESL programs.
It should be noted that bilingual needs can differ
widely from state to state or district to district. Ac-
cording to the U. S. Department of Education, Span-
ish-speaking students make up nearly three-quarters
of all LEP students in the United States. But in a dis-
trict in which the predominant foreign language is
Chinese, Vietnamese, or Hindi, the needs would of
course be geared toward those languages. Local
schools can create effective bilingual programs based
on their specific needs. At the William Barton Rogers
School in Boston, for example, a transitional pro-
gram for middle-school LEP students who speak Viet-
namese has met with success; likewise, a program for
elementary school students in the Madawaska
School District in Maine has been successful with
French-speaking students.
Because each state’s needs are different, and be-
cause those needs are subject to change, the best
way to get comprehensive and up-to-date informa-
tion on each state’s initiatives is to contact individual
state education departments (see below).
Grants and Programs
Obtaining information about bilingual grants, pro-
grams, and other initiatives is much easier today than
it was in the past thanks to the Internet. Federal,
state, and local government agencies offer a surpris-
ing variety of information on their web sites. Those
who do not own a computer can access these sites
at any local public library. Following is a sampling of
what is available.
The U. S. Department of Education’s Office of Bi-
lingual Education and Minority Language Affairs (OB-
EMLA) is in charge of awarding Title VII grants to
both state and local education agencies. There are 12
types of discretionary grants, which cover training,
development, implementation, school reform pro-
grams, and foreign language instruction. These
grants are awarded only to ‘‘education-related orga-
nizations.’’ Individuals are not eligible for Title VII
grants. Those interested in applying for a Title VII
grant can obtain the necessary information by visit-
ing OBEMLA’s web site (http://www.ed.gov.offices/
OBEMLA)
A good beginning resource for anyone who wish-
es to find out about programs, grants, and other in-
formation on bilingual education and bilingual initia-
tives is the National Clearinghouse for Bilingual
Education (NCBE). Funded by OBEMLA, this organi-
zation collects and analyzes information and also
provides links to other organizations. The NCBE web
site (http://www.ncbe.gwu.edu) is a comprehensive
starting point.
Each state’s Department of Education provides in-
formation on its statewide and local bilingual initia-
tives; the easiest way to find this information is to
visit individual state education department web sites.
Also, large cities such as New York, Miami, Houston,
Los Angeles, and San Francisco provide information
on their web sites about their comprehensive bilin-
gual programs.
Additional Resources
Bilingual Education: A Sourcebook. Alba M. Ambert and
Sarah E. Melendez, Garland Publishing, 1985.
Bilingual Education: History, Politics, Theory, and Prac-
tice. Third Edition. James Crawford, Bilingual Educa-
tional Services, Inc., 1995.
Bilingual Education: Issues and Strategies. Amado M. Pa-
dilla, Halford M. Fairchild, and Concepc.on M. Valadez,
editors, Sage Publications, 1990.
Learning in Two Languages: From Conflict to Consensus
in the Reorganization of Schools. Gary Imhoff, editor,
Transaction Publishers, 1990.
Organizations
Center for Applied Linguistics
4646 40th Street, NW
Washington, DC 20016 USA
Phone: (202) 362-0700
EDUCATION—BILINGUALISM
438 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Fax: (202) 362-3740
URL: http://www.cal.org
Primary Contact: Donna Christian, President
National Association for Bilingual Education
(NABE)
1220 L Street, NW, Suite 605
Washington, DC 20005 USA
Phone: (202) 898-1829
Fax: (202) 789-2866
URL: http://www.nabe.org
Primary Contact: Delia Pompa, Executive Director
National Clearinghouse for Bilingual
Education (NCBE)
The George Washington University
Center for the Study of Language and Education
2121 K Street, Suite 260
Washington, DC 20037 USA
Phone: (202) 467-0867
Fax: (800) 531-9347
URL: http://www.ncbe.gwu.edu
Primary Contact: Minerva Gorena, Director
National Education Association (NEA)
1201 16th Street, NW
Washington, DC 20036 USA
Phone: (202) 833-4000
Fax: (202) 822-7170
URL: http://www.nea.org
Primary Contact: Robert F. Chase, President
National Multicultural Institute (NMCI)
3000 Connecticut Avenue, NW, Suite 438
Washington, DC 20008 USA
Phone: (202) 483-0700
Fax: (202) 483-5233
URL: http://www.nmci,org
Primary Contact: Elizabeth Pathy Salett, President
Office of Bilingual Education and Minority
Language Affairs (OBEMLA)
400 Maryland Avenue, SW
Washington, DC 20202 USA
Phone: (202) 205-5463
Fax: (202) 205-8737
URL: http://www.ed.gov.offices/OBEMLA
Primary Contact: Art Love, Acting Director
Teachers of English to Speakers of Other
Languages (TESOL)
700 South Washington Street, Suite 200
Alexandria, VA 22314 USA
Phone: (703) 836-0774
Fax: (703) 836-7864
URL: http://www.tesol.edu
Primary Contact: Charles Amorosino, Executive
Director
EDUCATION—BILINGUALISM
GALE ENCYCLOPEDIA OF EVERYDAY LAW 439
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EDUCATION
CODES OF CONDUCT
Sections within this essay:
• Background
• Basic Conduct Issues
• More Serious Violations
• Violence and Other Extreme Behavior
- Identifying Troubled Students
• Conduct and Technology
- Acceptable Use Policy
- Cell Phones and Pagers
• Getting Information
• Additional Resources
Background
Among the many ingredients for successful
schools is a student body that is not only eager to
learn but also well behaved. Children are taught the
difference between good and poor behavior from an
early age, and ideally that training goes with them
into the classroom. Teachers and school administra-
tors are expected to serve as role models, and they
also have an obligation to ensure that students meet
certain conduct expectations.
Codes of conduct are designed to serve both the
classroom and the individual. They outline students’
rights, ensuring that no student will be penalized or
singled out based on anything but a violation of es-
tablished rules. They also outline students’ responsi-
bilities, thus letting individual students know that
they need to meet certain standards for their own
sake and that of the entire class.
‘‘Conduct’’ covers such a wide variety of behaviors
that establishing a formal code within a school sys-
tem is a complicated matter. A violation of conduct
rules can be anything from passing notes in class to
carrying a concealed weapon into the building. It is
up to the school administration, often working in
conjunction with parents and students, to set rules
and to enforce them.
A typical school code of conduct begins with an
outline of rights and responsibilities for both the stu-
dents and the faculty. It then lists different infrac-
tions (often categorized at different levels of severi-
ty) and prescribes appropriate disciplinary measures.
It should also explain the student’s right to appeal
any disciplinary action.
It is important to remember that both the stu-
dents and the faculty have rights and responsibilities.
Students have the right to be informed of the school
district’s policies and regulations. They also have the
right to know the academic requirements of each
course and to be advised of their progress. Students
have privacy rights as well; their personal posses-
sions are generally off limits. If the school has reason
to believe that a student is carrying something illegal,
such as a knife, that becomes a different matter.
Desks and lockers are school property, and schools
can inspect them without student permission.
Teachers, likewise, have the right to be able to do
their job without distractions. They also have the
right to discipline students in an appropriate manner
when necessary. Most codes of conduct are written
with enough flexibility to allow teachers some leeway
when choosing disciplinary action.
If a student is ACCUSED of committing a serious of-
fense that results in suspension or expulsion, he or
GALE ENCYCLOPEDIA OF EVERYDAY LAW 441
she has the right to appeal the decision under due
process rules of law. No student can be singled out
for punishment on the basis of race, sex, color, reli-
gion, DISABILITY, or national origin. Moreover, in
most cases, school JURISDICTION applies to the actual
school grounds, but codes of conduct are valid when
students are attending school-related functions off
the actual school property.
Basic Conduct Issues
The classroom is designed to provide students
with a structured environment in which they can
learn. In most cases the classroom model works
quite well, but it fails to take simple human nature
into consideration. Children, even those who are
normally well behaved, will try to test the rules for
two simple reasons. First, they are away from their
parents, which makes them feel independent even
though a teacher may be watching them. For this rea-
son, some students habitually come to class late or
skip class altogether. Second, as children learn to so-
cialize they seek ways to generate attention, even
negative attention for being disruptive, for example,
by always talking out of turn or playing the class
clown.
In years past, schools offered courses in what was
known as ‘‘civics.’’ Civics courses often included in-
struction on the importance of integrity, honesty,
and respect for others. Civics courses have fallen out
of favor for the most part, although many schools do
offer some sort of course work focusing on under-
standing values. Nonetheless, there are always stu-
dents who will break the rules.
The point teachers and administrators stress is
that even minor infractions can represent more seri-
ous behavior problems, and failure to offer discipline
and guidance can lead some students to more dis-
ruptive or harmful violations.
Among the more innocuous types of behavior
that constitute conduct violations are the following:
Repeatedly coming to class without appropriate
supplies (books, gym clothes, etc.)
Leaving school property without permission
Defacing school property (vandalizing books, for
example)
Wearing inappropriate clothing
Bringing radios or CD players to class
Truancy
Clearly each of these infractions warrants different
punishment. Probably the most common punish-
ment is still having the student stay after school. Fac-
ulty and administrators have a variety of other op-
tions, however. They can give a warning or
reprimand, have a student conference, have a parent
conference, change the student’s class schedule, or
impose a suspension. The student who brings a radio
to class might benefit most from a reprimand (and
from having the radio confiscated for the day). The
student who cuts class regularly may require more
direct involvement with teachers and parents. Stu-
dents who drive to school could have their parking
privileges revoked if they leave school grounds with-
out permission.
More Serious Violations
When students commit more serious violations, a
good code of conduct should be able to address the
problematic behavior and prescribe appropriate
punishment. Among those more serious violations
are the following:
• Cheating or plagiarizing
• Using profane, obscene, or ethnically offen-
sive language
• Possessing pornographic material
• Theft (from another student or from the
school)
• Gambling on school grounds
• Threatening the safety of another student
• Fighting with another student
Students who commit these more serious of-
fenses will face stronger punishment. But no school
district wants merely to punish a student and let an
incident drop, particularly in light of the heightened
sensitivity to school violence. Intervention programs
often begin with conferences between the student
and his or her parents or guardians and teachers and
school administrators. Discipline can be rehabilita-
tive in form. Instead of being suspended from class,
for example, a student might be assigned to do a
community service project. Someone who vandalizes
a school building may have to repair that damage in-
stead of merely paying for it.
Violence and Other Extreme Behavior
For many years school violence was thought to
exist only in poor inner-city schools, with most of
EDUCATION—CODES OF CONDUCT
442 GALE ENCYCLOPEDIA OF EVERYDAY LAW
that violence directed against specific students
(gangs, for example). A series of highly publicized
sniper attacks, many in affluent suburban schools,
during the 1990s changed the public’s perception of
school violence. Although the National Center for
Education Statistics (NCES) reported that in 1997
only 10 percent of schools reported any instance of
serious crime, with 42 percent reporting no crimes
at all, many believe that schools have becoming in-
creasingly dangerous. What was particularly chilling
about many of the attacks was often the students re-
sponsible were regarded as quiet and unassuming.
It is simplistic to say that a code of conduct would
have kept some of the most deadly sniper attacks
from taking place. That said, a code of conduct does
send a clear message to students that certain behav-
ior will not be tolerated, including teasing and bully-
ing. Some of the students who killed their fellow stu-
dents were said to have been bullied and taunted by
their classmates over a period of years.
Identifying Troubled Students
Truly troubled students who might have tenden-
cies to resort to extreme violence against their peers
and teachers cannot be stopped simply by a code of
conduct. What a code of conduct can do, however,
is help identify behavior patterns in children early
on. A youngster who is constantly disrupting class
and breaking rules is clearly having trouble adjusting,
and the school can work with the youngster and the
parents to identify the problem. The class bully
needs to be disciplined, but without some sort of ad-
ditional action (such as counseling) the discipline be-
comes merely punitive. Not every troubled student
will react violently, of course, but that does not mean
the school has no obligation to reach out and help
when help seems appropriate. Regarding serious
crime, students who commit FELONY offenses are re-
moved automatically from most schools; if under age
these individuals may be placed in a juvenile deten-
tion facility where they can continue their education;
if over 16 they can be tried as an adult for their
crimes and imprisoned if convicted.
Conduct and Technology
The Internet has vastly expanded educational re-
sources and opportunities for students and teachers.
Students use the Internet both as a research tool and
a means of communicating. The question responsi-
ble administrators and teachers need to ask is pre-
cisely what sort of research and communication the
students are doing. There is a big difference between
using the Internet to find biographical material of a
local author, for example, and logging onto web sites
to find out the latest gossip about a favorite pop
music star. More dangerous still, some student use
a school e-mail account to join a chat group. Teen-
agers in particular may feel that they possess enough
maturity to make informed choices about what they
are doing, but they may inadvertently lead them-
selves into harm’s way. The not uncommon reports
of adults being arrested for trying to meet up with
minors they met in chat rooms are a red flag for most
school districts.
Many districts avoid the issue by not providing
students with their own e-mail accounts. They argue,
quite convincingly, that student e-mail is difficult to
monitor and ties up too many resources that could
be used for other activities. A number of educators,
however, believe that e- mail has become so essential
that students should be trusted with the responsibili-
ty until they do something to violate that trust. Soft-
ware programs that filter e-mail and Internet sites is
only a partial solution; a student who wants to view
a particular site may be resourceful enough to be
able to get past such barriers. Beyond those students
who might willfully engage in irresponsible activity
online, there are also students who may unwittingly
create trouble for themselves or others. A student
who is not computer savvy might inadvertently dis-
close personal information over the Internet, for ex-
ample.
Acceptable Use Policies
Districts that do offer e-mail accounts to students
have found that establishing an ‘‘acceptable-use’’
policy is essential to maintaining good ‘‘netiquette’’
among students. An acceptable-use policy begins by
setting ground rules for when and how students can
use the Internet and e-mail. Typically, students are
expected to use appropriate language, to avoid off-
limit sites and chat rooms, and to refrain from misuse
of e-mail, such as spamming (sending unsolicited
mass postings to hundreds of e-mail addresses). Stu-
dents are also prohibited from using Internet infor-
mation inappropriately (for example, downloading
term papers or plagiarizing from web sites). Students
are advised that the school has the right to review all
electronic correspondence to ensure compliance
with the established rules, and anyone violating
those rules can be disciplined. For serious or repeat
offenses, a student’s Internet privileges can be re-
voked. Both students and parents are usually re-
quired to sign the acceptable-use policy.
EDUCATION—CODES OF CONDUCT
GALE ENCYCLOPEDIA OF EVERYDAY LAW 443
Cell Phones and Pagers
The Internet is not the only high-tech tool that
students have at their disposal. Cell phones are ex-
tremely popular with teenagers; pagers are perhaps
less so. Some school districts do allow students to
carry pagers for exceptional reasons, such as a medi-
cal condition that might require the student to con-
tact help immediately. For general use, however, cell
phones and paging devices are as distracting in a
school building as they are everywhere else. Most
schools have rules against bringing cell phones or
pagers onto school property.
Getting Information
Although codes of conduct follow the same basic
pattern, they vary not only from district to district but
from school to school. The easiest way to find out
about a particular school’s code of conduct is to con-
tact the school administration directly. Most likely,
the school will have some sort of handbook listing
the code, along with guidelines for punishing viola-
tions. Individual schools and school districts with
web sites may also post their conduct rules online.
Legislatures have taken initiative in formalizing
codes of conduct, also. In New York, for example,
the Safe Schools and Violence in Education Act
(SAVE) was passed by the state legislature in 2000.
It required all school districts to create a comprehen-
sive code of conduct by July 2001. Among the key re-
quirements for these codes is a clear definition of
teachers’ authority to remove disruptive students
from the classroom.
Additional Resources
Helping Your Child Learn Right from Wrong: A Guide to
Values Clarification. Simon, Sidney B. and Sally Wend-
kos Olds, Simon and Schuster, 1976.
Staying Safe at School. Chaiet, Donna, Rosen Publishing
Group, 1995.
Zero Tolerance: Resisting the Drive for Punishment.
Ayers, Rick, William Ayers, and Bernardine Dohrn, edi-
tors, New Press, 2001.
Organizations
National Center for Education Statistics
(NCES)
1990 K Street, NW, Room 9103
Washington, DC 20006 USA
Phone: (202) 502-7350
Fax: (202) 502-7475
URL: http://www.nces.ed.gov
Primary Contact: Gary W. Phillips, Acting
Commissioner
National Education Association (NEA)
1201 16th Street, NW
Washington, DC 20036 USA
Phone: (202) 833-4000
Fax: (202) 822-7170
URL: http://www.nea.org
Primary Contact: Robert F. Chase, President
National Governors Association (NGA))
401 North Capitol Street
Washington, DC 20001 USA
Phone: (202) 624-5300
Fax: (202) 624-5313
URL: http://www.nga.org
Primary Contact: John Engler, Chair
National School Boards Association (NSBA)
1680 Duke Street
Alexandria, VA 22314 USA
Phone: (703) 838-67220
Fax: (703) 683-7590
URL: http://www.nsba.org
Primary Contact: Anne L. Bryant, Executive
Director
EDUCATION—CODES OF CONDUCT
444 GALE ENCYCLOPEDIA OF EVERYDAY LAW
EDUCATION
COMPETENCY TESTING
Sections within this essay:
• Background
• ‘‘Exit Examinations’’ for High School Gradu-
ates
• Legal Authority for Setting Educational Stan-
dards
• Legal Challenges to Educational Testing
- Due Process Claims
- Equal Protection Claims
• High School Graduation Exit Options
- Standard Diploma
- Individual Education Plan (IEP) Di-
ploma
- Occupational Diploma
• State Laws
• Additional Resources
Background
Testing students for academic achievement or
competency is not new. As early as the 1970s, some
states were making adequate performance on ‘‘exit
examinations’’ a prerequisite for high school gradua-
tion. This was done in an effort to enhance teacher
quality as well as student achievement during an era
when many questions were raised by parents, educa-
tors, and the public at large about the seeming lack
of basic skills in high school graduates.
While varying and inconsistent approaches have
been taken to measure student performance at the
elementary school level, there is more unison in set-
ting certain minimum criteria for graduation from
high school. The vast majority of states require an
overall accumulation of ‘‘Carnegie units’’ (reflecting
the number of classroom hours spent learning) in
addition to passing grades in certain core subjects.
But by 2002, nearly half of all states required (or were
planning to require within the next two years) ‘‘exit
exams’’ in addition to accumulated credit hours in
order for students to receive diplomas evidencing
high school graduation.
‘‘Exit Examinations’’ for High School
Graduates
Following years of complaints from both employ-
ers and academic institutions of higher learning (that
many high school graduates lacked basic educational
skills in reading, writing, and math), both legislators
and educators agreed to work toward raising educa-
tional standards nationwide. This has resulted in re-
newed focus on learning rather than remediation
and more accountability for teachers and school sys-
tems.
Educational standards (and correlative exams) for
gauging performance have been criticized in the past
for being local or parochial in substance, making
grades and class standing a ‘‘relative’’ achievement
based only upon how well others in the same school
system or state performed. The Education Reform
Act helped standardize student performance on a na-
tional level, but new questions were raised as to
whether teachers were actually enhancing learning
skills or merely ‘‘teaching to the test,’’ (i.e., merely
teaching those things they knew students would be
GALE ENCYCLOPEDIA OF EVERYDAY LAW 445
tested on, in order to make the school and/or the
teacher appear favorably on ASSESSMENT reviews).
However, questions remain as to which system is
the best to assess the academic competency of grad-
uating students. By far the most often used tool of
assessment is the multiple-choice EXAMINATION, in
many cases combined with a writing sample. This, in
combination with passing grades in key subjects and
a minimum number of credit units, seems to be a
growing method of choice for ensuring minimum
competency levels of high school graduates in the
United States. Because graduation from high school
may be dependent upon passing an ‘‘exit exam,’’ the
process has been dubbed ‘‘high stakes testing.’’
Legal Authority for Setting Educational
Standards
Most education reform since the 1980s has fo-
cused on ‘‘performance-based standards’’ which os-
tensibly indicate a minimum level of academic
achievement that all graduating students should
have mastered. Some important laws concerning
standards-based school reform include:
• The No Child Left Behind Act, signed into
law by President George W. Bush in January
2002, refines and makes major amendment
to Title I (see below). Among other factors
(like substantial flexibility for states in the
use of federal funds), the new law requires
states to assess reading and math skills in
students from grades three to eight on an
annual basis.
• The Educate America Act (20 USC 5801 et
seq.) is only binding upon states that accept
its grant funding (nearly all) but sets as its
primary goal the development of strategies
for setting statewide student performance
standards and for assessing achievement of
those standards.
• Title I of the Improving America’s Schools
Act of 1994 (20 USC 6301 et seq.) contains
an explicit set of requirements for states to
submit plans for challenging content and
performance standards and assessing stu-
dent mastery of the requirements in order to
receive Title I funds (the largest federal
school aid program).
• The Individuals with Disabilities Education
Act (IDEA), (20 USC 1400 et seq.) was sub-
stantially amended in 1997. The Act requires
that states which receive grant funds under
its auspices must develop IEPs (individual
education plans) for students with disabili-
ties or who are deemed in need of special
services. The 1997 amendments required
states to develop policies and procedures to
allow students with disabilities to participate
in state and district-wide testing programs,
with necessary accommodations.
Legal Challenges to Educational Testing
Courts have had numerous opportunities over
the decades to pass on the validity of education test-
ing in conjunction with high school graduation and
promotion (e.g., to the next level grade). Most legal
challenges have been grounded in the Due Process
Clause and the EQUAL PROTECTION Clause of the
Fourteenth Amendment to the U.S. Constitution.
Challenges to testing of special education students
have invoked IDEA and Section 504 of the Rehabilita-
tion Act of 1973.
Due Process Claims
The Due Process Clause of the Fourteenth
Amendment prohibits a state from depriving ‘‘any
person of life, liberty or property without due pro-
cess of law.’’ Over the years, it has been held by sev-
eral courts that the receipt of a high school diploma
was a ‘‘property interest’’ which a state could not de-
prive an individual of without DUE PROCESS OF LAW.
Additionally, some courts have found that students
have a constitutionally protected ‘‘liberty’’ interest in
avoiding the stigma or impaired career advancement
that accompanies the failure to achieve high school
graduation. (See, e.g., the Goss case, 419 U.S. at 574.)
The key to ‘‘due process’’ is the requirement of
substantial notice to a person of the manner in which
he or she may be denied or deprived of such an in-
terest (graduation from high school) or, alternatively
stated, substantial notice of what will be required of
the student in order to graduate. With respect to
testing, some courts have held that two years’ ad-
vance notice that graduation was conditioned upon
the passing of an exit exam in addition to credit hour
completion was adequate; other courts have de-
manded more time.
Still other courts have held that students had no
protected property interest in the expectation that a
former, lower standard would continue to be accept-
ed as the threshold for academic promotion to the
EDUCATION—COMPETENCY TESTING
446 GALE ENCYCLOPEDIA OF EVERYDAY LAW
next grade or graduation. (See, e.g., Bester v. Tusca-
loosa, 722 F.2d 1514, 11th Circuit).
In determining whether denial of a high school di-
ploma based on a failure to pass a minimum compe-
tency exit exam is unconstitutional, courts balance
‘‘the private interests of the [students], the risk of an
improper deprivation of such interest and the gov-
ernmental interest involved.’’ (Mathews v. Eldridge,
424 U.S. 319) Almost all cases presented on these is-
sues have turned on whether the school system had
provided prospective graduates with adequate no-
tice of new diploma requirements.
Equal Protection Claims
Similarly, the Equal Protection Clause of the Four-
teenth Amendment guarantees that no person will
be denied the equal protection of the laws in the en-
joyment and/or exercise of personal rights as that en-
joyed by other persons in like circumstances. In
order to ensure equal protection for students, school
systems must uniformly apply educational standards
and testing procedures across the board (with legal
accommodations factored in for learning disabled or
special needs students).
Generally, courts are more likely to uphold a test-
ing program if there is a presence of additional fac-
tors such as opportunities for retesting, remedial or
tutorial programs, and the availability of alternative
ways to obtain a diploma.
High School Graduation Exit Options
While no standardized national test has been im-
plemented for use as a criterion in the granting of a
high school diploma, states have developed several
ways in which students may meet graduation re-
quirements.
Standard Diploma
Each state offers a standard diploma to students
who have met the regular requirements for gradua-
tion. These are commonly the completion of a mini-
mum number of Carnegie Units or credits (with pass-
ing grades), an attendance requirement, and (in an
increasing number of states) a passing score on an
exit exam. ‘‘Honors’’ diplomas are variations of stan-
dard diplomas in which student achievers may
choose elective courses or independent studies in
addition to their core studies. Such diplomas may
also indicate accelerated or advanced coursework.
Individual Education Plan (IEP) Diploma
Students with special needs may be offered an al-
ternative way to earn a high school diploma through
completion of individual education plans construct-
ed specifically to the needs of the student. Some
states allow modified coursework to count as stan-
dard coursework and, therefore, award a standard di-
ploma; others offer ‘‘certificates of attainment’’ or
‘‘special certificate of completion’’ to indicate the
student’s fulfillment of special criteria for graduation.
Occupational Diploma
Several states offer work/study diplomas, the most
effective of which are those offered in conjunction
with exit exams, to ensure that elective coursework
directed toward occupational interests does not
compromise minimum skill levels in core subject
areas.
State Laws
ALABAMA: Alabama high school graduates must
meet minimum credit hour criteria plus pass an exit
examination. The state offers exit options of standard
diplomas, IEP diplomas, certificates of attendance
only, honors diplomas, and occupational diplomas.
ALASKA: Alaska does not require exit exams for high
school graduation. The state does offer standard di-
plomas, IEP diplomas, and certificates of attendance
as exit options.
ARIZONA: Graduation from an Arizona high school
requires both credit hour completion and an exit
exam. Only standard diplomas are granted.
ARKANSAS: Arkansas high school students must
meet the credit hour criteria for graduation. The
state offers exit options of standard diplomas, IEP di-
plomas, and certificates of attendance only.
CALIFORNIA: California has state-mandated credit
hour requirements that must be met for graduation.
Additionally, local education districts have the au-
thority to require passing scores on some form of
exit examinations. The state generally offers standard
and honors program diplomas.
COLORADO: There are no state-level requirements
for high school graduation. Local education associa-
tions may establish their own credit hour require-
ments as well as exit examination criteria. In addition
to the standard diploma, a work/study diploma may
be granted, as well as IEP diplomas
CONNECTICUT: Connecticut high school students
must meet the credit hour criteria for graduation.
The state offers exit options of standard diplomas,
IEP diplomas, certificates of attendance only, honors
diplomas, and GED diplomas.
EDUCATION—COMPETENCY TESTING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 447
DELAWARE: Delaware high school students must
meet the credit hour criteria for graduation. The
state offers exit options of standard diplomas and
certificates of attendance only.
DISTRICT OF COLUMBIA: High school students
must meet the credit hour criteria only. The state of-
fers exit options of standard diplomas, IEP diplomas,
certificates of attendance only.
FLORIDA: Florida high school students must meet
the credit hour criteria plus pass an exit examination.
The state offers exit options of standard diplomas,
IEP diplomas, certificates of attendance, and honors
diplomas.
GEORGIA: In Georgia, high school students must
meet the credit hour criteria plus pass an exit exami-
nation. The state offers exit options of standard di-
plomas, IEP diplomas, and certificates of attendance.
HAWAII: Hawaii students must meet the credit hour
criteria plus pass an exit examination. The state of-
fers exit options of standard diplomas, IEP diplomas,
certificates of attendance only, honors diplomas.
IDAHO: Alabama high school students must meet
the credit hour criteria. The state offers exit options
of standard diplomas only.
ILLINOIS: High school students in Illinois must meet
the credit hour criteria for graduation. The state of-
fers exit options of standard diplomas or certificates
of attendance only.
INDIANA: Indiana high school students must meet
the credit hour criteria plus pass an exit examination.
The state offers exit options of standard diplomas,
honors diplomas, or GED diplomas. It awards a cer-
tificate of achievement for special education stu-
dents for whom a diploma track is not appropriate.
IOWA: Iowa high school students must meet the
credit hour criteria only. However, in addition to
state minimum credit requirements, local education
boards may establish additional requirements for
graduation. The state offers exit options of standard
diplomas or IEP diplomas only.
KANSAS: In Kansas, high school students must meet
the credit hour criteria to be granted a standard di-
ploma. Kansas law also authorizes local school
boards to grant diplomas under separate or special
criteria.
KENTUCKY: Kentucky high school students need
only meet the credit hour criteria for graduation, but
as of 2002, the state was implementing assessment
examinations. The state offers exit options of stan-
dard diplomas, IEP diplomas, and honors diplomas.
LOUISIANA: High school students in Louisiana must
meet the credit hour criteria plus pass an exit exami-
nation. The state offers exit options of standard di-
plomas and certificates of attendance only.
MAINE: Maine high school students must meet the
credit hour criteria. The state offers exit options of
standard diplomas or IEP diplomas.
MARYLAND: In Maryland, high school students must
meet the credit hour criteria plus pass an exit exami-
nation. The state offers exit options of standard di-
plomas, IEP diplomas, certificates of attendance
only, or GED diplomas.
MASSACHUSETTS: Massachusetts high school stu-
dents must meet the credit hour criteria. The state
offers standard diplomas only, except that IEP diplo-
mas may be authorized by local school boards. In ad-
dition, part of the credit requirements for standard
diplomas and the distribution of credits are left to
the discretion of local authorities.
MICHIGAN: Michigan high school students must
meet locally established criteria for graduation. They
receive local high school diplomas with or without
state endorsements. If local criteria require exit
exams, depending on the performance level on an
exit exam, state endorsements will appear on the
transcripts. Generally, Michigan schools also offer
IEP diplomas and certificates of attendance.
MINNESOTA: In Minnesota, high school students
must pass an exit examination and demonstrate mas-
tery of 24 standards. In return, they are granted a
state endorsed standard diploma.
MISSISSIPPI: Mississippi high school students must
meet the credit hour criteria plus pass an exit exami-
nation. The state offers exit options of standard di-
plomas, or certificates of attendance only.
MISSOURI: Missouri requires that high school stu-
dents meet the credit hour criteria for receiving a di-
ploma. The state offers exit options of standard di-
plomas, IEP diplomas, certificates of attendance
only, honors diplomas.
MONTANA: In Montana, high school students must
meet the credit hour criteria. The state offers exit op-
tions of standard diplomas or IEP diplomas.
NEBRASKA: Nebraska high school students must
meet the credit hour criteria, but part of the credit
EDUCATION—COMPETENCY TESTING
448 GALE ENCYCLOPEDIA OF EVERYDAY LAW
requirements and/or the distribution of credits are
left to the discretion of local education authorities.
The state offers exit options of standard diplomas,
certificates of attendance only, or a locally-
determined modified diploma for special needs.
NEVADA: High school students in Nevada must meet
the credit hour criteria plus pass an exit examination.
The state offers exit options of standard diplomas,
certificates of attendance only, or adult diplomas.
NEW HAMPSHIRE: In New Hampshire, high school
students must meet the credit hour criteria. The
state offers exit options of standard diplomas, IEP di-
plomas, and certificates of attendance only.
NEW JERSEY: New Jersey high school students must
meet the credit hour criteria plus pass an exit exami-
nation. The state offers standard diplomas only.
NEW MEXICO: New Mexico high school students
must meet the credit hour criteria plus pass an exit
examination. The state offers exit options of standard
diplomas, IEP diplomas, certificates of attendance
only, or ‘‘career readiness’’ diplomas.
NEW YORK: In New York, high school students must
meet the credit hour criteria plus pass an exit exami-
nation. The state offers exit options of standard di-
plomas, IEP diplomas, certificates of attendance
only, honors diplomas, or an annotated local diplo-
ma.
NORTH CAROLINA: North Carolina high school stu-
dents must meet the credit hour criteria plus pass an
exit examination. The state offers exit options of
standard diplomas, IEP diplomas, certificates of at-
tendance only, and honors diplomas.
NORTH DAKOTA: In North Dakota, high school stu-
dents must meet the credit hour criteria. The state
offers exit options of standard diplomas, IEP diplo-
mas, or certificates of attendance only.
OHIO: Ohio high school students must meet the
credit hour criteria plus pass an exit examination.
The state offers exit options of standard diplomas,
honors diplomas, or a diploma of adult education.
OKLAHOMA: Oklahoma high school students must
meet the credit hour criteria. The state offers stan-
dard diplomas only.
OREGON: In Oregon, high school students must
meet the credit hour criteria. The state offers exit op-
tions of standard diplomas or certificates of atten-
dance only.
PENNSYLVANIA: Pennsylvania high school students
must meet locally established criteria for graduation.
The state offers standard diplomas or GED diplomas
only.
RHODE ISLAND: In Rhode Island, high school stu-
dents must meet the credit hour criteria. The state
offers standard diplomas only.
SOUTH CAROLINA: South Carolina high school stu-
dents must meet the credit hour criteria plus pass an
exit examination. The state offers exit options of
standard diplomas or certificates of attendance only.
SOUTH DAKOTA: South Dakota high school stu-
dents must meet the credit hour criteria. The state
offers exit options of standard diplomas only.
TENNESSEE: In Tennessee, high school students
must meet the credit hour criteria plus pass an exit
examination. The state offers exit options of standard
diplomas, IEP diplomas, certificates of attendance
only, honors diplomas.
TEXAS: Texas high school students must meet the
credit hour criteria plus pass an exit examination.
The state offers exit options of standard diplomas or
certificates of attendance only.
UTAH: Utah high school students must meet the
credit hour criteria. The state offers exit options of
standard diplomas or certificates of attendance only.
VERMONT: In Vermont high school students must
meet the credit hour criteria. The state offers exit op-
tions of standard diplomas or certificates of atten-
dance only.
VIRGINIA: Virginia high school students must meet
the credit hour criteria plus pass an exit examination.
The state offers exit options of standard diplomas,
IEP diplomas, certificates of attendance only, honors
diplomas, GED diplomas, and special diplomas.
WASHINGTON: In Washington, high school students
must meet the credit hour criteria only. The state of-
fers standard diplomas only.
WEST VIRGINIA: West Virginia high school students
must meet the credit hour criteria. The state offers
exit options of standard diplomas or IEP diplomas
only.
WISCONSIN: In Wisconsin, high school students
must meet the credit hour criteria. The state offers
exit options of standard diplomas or certificates of at-
tendance only.
EDUCATION—COMPETENCY TESTING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 449
WYOMING: Wyoming high school students must
meet the credit hour criteria. The state offers exit op-
tions of standard diplomas or certificates of atten-
dance only.
Additional Resources
‘‘Analysis: How Standardized Testing Changes Teaching
and Learning.’’ Conan, Neal, Talk of the Nation (NPR),
March 21, 2002.
‘‘Fact Sheet: No Child Left Behind Act’’ January 2002. Avail-
able at http://www.whitehouse.gov/news/releases/2002/
01/20020101.html.
‘‘Special Education and High Stakes Testing: An Analysis of
Current Law and Policy’’ O’Neill, Paul T., Journal of
Law & Education, April 2001.
‘‘State Graduation Requirements for Students With and
Without Disabilities’’ Guy, B., H. Shin, S. Y. Lee, and M.
L. Thurlow. University of Minnesota, National Center on
Educational Outcomes, 1999. Available (March 30,
2002) at http://education.umn.edu/NCEO/OnlinePUbs.
‘‘Testing.’’ Lawton, Millicent, Education Week, April 23,
1997.
EDUCATION—COMPETENCY TESTING
450 GALE ENCYCLOPEDIA OF EVERYDAY LAW
EDUCATION
COMPULSORY EDUCATION
Sections within this essay:
• Background
- What are Compulsory Attendance
Laws?
- History and Development of Com-
pulsory Attendance Laws
- Penalties for Non-Compliance
• Statutory Exemptions from Compulsory At-
tendance Laws
- Child’s Circumstances
- Equivalent Education
• Court Case Exemptions from Compulsory
Attendance Laws
- Exemptions Accepted by Some
Courts
- Exemptions Rejected by Some
Courts
• Early United States Supreme Court Chal-
lenges
- Meyer v. Nebraska (1923)
- Pierce v. Society of Sisters (1925)
- Farrington v. Tokushige (1927)
• Home Schooling as an Alternative to Public
School Education
- Why Parents Home School and its
Acceptance by State Governments
- Legal Requirements for Home
Schools
• Home Schooling Constitutional Defenses
- Due Process Fundamental Rights
- Due Process Vagueness
- Due Process Arbitrariness
- Free Exercise
- Free Speech
- Right to Privacy
- Ninth Amendment
• Access of Home Schooling Students to Pub-
lic School Facilities and Activities
- Home School Parents’ View
- Oppositions’ View
- Constitutional Arguments Raised in
Court
- Legislative Action
• Keeping Current on New Developments in
Your State
• Additional Resources
Background
What are Compulsory Attendance Laws?
Compulsory attendance laws are statutes put into
force by state governments that require parents to
have their children go to a public or state accredited
private or parochial school for a designated period.
Each state by law determines when this period starts
and ends. Almost all states require a child to begin
attending school at an age ranging from five to seven
years. The age when a child may stop going to school
varies from sixteen to eighteen.
To learn about the age requirements for your
state, look in the telephone directory under the list-
ing for state government agencies for either the de-
partment or board of education or the office or de-
partment of public instruction.
History and Development of Compulsory
Attendance Laws
Modern compulsory attendance laws were first
enacted in Massachusetts in 1853 followed by New
GALE ENCYCLOPEDIA OF EVERYDAY LAW 451
York in 1854. By 1918, all states had compulsory at-
tendance laws. One reason for the acceptance by the
states of these laws was the belief that the public
school was the best means to improve the literacy
rate of the poor and to help assimilate an immigrant
population that grew at a high rate between the mid
nineteenth to the early twentieth centuries. Another
explanation is that as children were required to at-
tend school for a number of years, factory owners
found it more difficult to exploit the cheap and plen-
tiful child labor. This argument is substantiated by Al-
abama’s decision for a period of time to REPEAL its
compulsory attendance law due to pressure put
upon state authorities by a company opening a large
textile mill in that state. This industry was notorious
for its use of child labor.
Penalties for Non-Compliance
Failure to comply is a MISDEMEANOR in almost
every state. The penalties include fines for the first
offense ranging from $20 to $100 and increasing
thereafter for subsequent offenses from $250 to
$1000 depending upon the JURISDICTION. Most states
also have the option of sentencing parents for as
long as 30 days in jail. Some states provide for alter-
natives such as community service or counseling. In
the case of home schooling, although the prosecu-
tion is not required to show the parent intended to
break the law, it must still prove in some jurisdictions
that home education does not provide an adequate
alternative.
Statutory Exemptions from Compulsory
Attendance Laws
Child’s Circumstances
Most states will not enforce these laws against par-
ents whose children are physically or mentally dis-
abled, are employed, or have received a designated
education level, typically a high school diploma or its
equivalent.
Equivalent Education
Equivalent Education may be obtained in a state
accredited private school or a parochial school. Ac-
cording to a ruling by the U. S. Supreme Court in
Pierce v Society of Sisters, states must recognize
these schools as providing an education equivalent
to that of the public schools so long as they follow
state laws and regulations that bear a reasonable rela-
tionship to the interest the state has in educating its
citizens and do not burden the religious practices of
the parochial schools. These conditions placed upon
non-public schools, including home schools, are per-
mitted under the United States Constitution because
the public schools must follow these regulations as
well.
All non-public schools must qualify under the laws
of that state as schools in order to be considered ca-
pable of providing an equivalent education. The
criteria used include such factors as whether the
school is established, the quality of the teaching, the
soundness of the curriculum, how many hours per
day are spent for instruction, how many days of the
year the school is engaged in teaching, and whether
the teachers are certified. A private, parochial, and
home schools may have to comply with any combi-
nation of the above factors.
Court Case Exemptions from Compulsory
Attendance Laws
Exemptions Accepted by Some Courts
• A threat to the health, safety, or welfare of
a student if the parents can show the threat
is imminent.
• The child has reached the age of majority.
• The child becomes mentally or physically
disabled. However, this ground is now used
less frequently because of special services
for the disabled mandated by federal law.
• The parent objects to classes because the
content violates their religious beliefs or
practices.
• Either hazardous conditions are present be-
tween the child’s home and his designated
public school or the distance between the
student’s home and the school exceeds a
distance provided by STATUTE.
Exemptions Rejected by Some Courts
• A parent’s belief a given teacher is incompe-
tent or otherwise not qualified to teach.
• A parent’s belief the school is doing a poor
job of educating his or her children.
• Objections to racial integration by the par-
ents on religious grounds.
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452 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Early United States Supreme Court
Challenges
Meyer v. Nebraska (1923)
This decision struck down a state law prohibiting
any instructor, either in a public or a private school,
from teaching in a language other than English. The
Court took this action because of the arbitrary inter-
ference from state officials of the right of parents to
provide education for their children as they saw fit.
The statute was arbitrary because it bore no relation-
ship to a legitimate state purpose and violated the
part of the Due Process clause of the 14th Amend-
ment to the Constitution that says no person may be
deprived of liberty without DUE PROCESS OF LAW. In
this case, the right of the parents to employ a teacher
to instruct their children in their native language fell
under the right to determine how they were to be
educated.
Pierce v. Society of Sisters (1925)
In this case, the Court said an Oregon law was un-
constitutional which made it mandatory for parents
to send their children to public school. As in Meyer,
this law was unrelated to the legitimate state goal of
educating children because it interfered with the fun-
damental right of parents to exercise control over
how their children were to be taught. Forcing par-
ents to have the educational options for their chil-
dren limited to public schools infringed upon the
above right and was an abuse of the state’s police
power to insure the health, safety, and morality of all
localities in that jurisdiction. This standardization
went against the sentiment of the Court often quot-
ed in the part of their opinion that declares a child
is not the creature of the state and that the responsi-
bility for educating children should rest with the par-
ents.
This decision is also important because it made
clear that state governments had to permit private
schools to operate. No challenge has since been
made on this point.
Farrington v. Tokushige (1927)
The Hawaii legislature had passed a law strictly
regulating hours, textbooks, and curriculum of
schools that taught in the native language of the stu-
dents. In striking down this law, the Court was indi-
cating that this amount of regulation of private
schools was unreasonable and that parents had the
right to exercise control over how their children
were educated without restrictions that were unre-
lated to any rational state goal.
Home Schooling as an Alternative to
Public School Education
Why Parents Home School and its
Acceptance by State Governments
Eighty-five percent of the parents surveyed indi-
cated they home schooled out of the religious
CONVICTION that the authority and power to instruct
their children should remain with them and not be
given to outside authority. Another reason cited was
the declining academic standards of public schools
as indicated by decreasing scores on standardized
tests beginning in the 1960s. Some parents objected
to what was being taught on religious, moral, or
philosophical grounds.
Legislative Requirements for Home Schools
Parents choosing to home school face many of the
same hurdles encountered by parochial and private
schools. In addition, the question may arise as to
whether home instruction in a given state will come
under the exemption routinely given to private
schools because a home school is not established in
the same way as are other non-public schools. In
states in which laws remain unclear about what quali-
fies home instruction to be considered a school, the
courts have given the term ‘‘school’’ a broad mean-
ing as a place where instruction of children takes
place. This definition eliminates the requirement
that a school have its own facilities. So long as the
home school meets the standards applied to schools
established in the normal sense, the home school
comes under the private school exemption.
Once a home school is considered by state statute
or CASE LAW to be a school, it must comply with regu-
lations to insure that students taught at home have
an equivalent education. First, many states require
parents to notify appropriate authorities, often the
local school superintendent, of their intention to in-
struct their children at home. At this point, some
states also make it mandatory for parents to obtain
approval from designated local officials of the con-
tent of their curriculum and other aspects of how
they will teach before they begin instructing their
children. Some home school parents have gone to
court claiming these officials are not objective in as-
sessing home school programs because public
school funding is often determined by the number
of students enrolled. The courts have rejected these
claims because of the difficulty in proving school offi-
cials’ BIAS caused their negative decisions and the
deference courts give to decisions of administrative
officials.
EDUCATION—COMPULSORY EDUCATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 453
The second requirement home schools face is
that they must meet the time or durational require-
ments as well as at a minimum for their curriculum
teach a list of designated subjects. They must do so
according to the standards applied to public schools
or by those required of home schools.
Third, a number of states require the parent to be
certified as a teacher. When parents home school for
religious reasons and challenge such laws in court as
interfering with their religious practices, the courts
have decided to uphold such laws. The courts side
with the state officials because they believe the inter-
est of the state in education outweighs the burden
on religious practices. The courts contend that if par-
ents do not meet the certification requirements pub-
lic school teachers are subject to, they are unable to
meet the burden of proof of showing they are able
to provide an equivalent education as required by
state law and regulation.
Fourth, state regulations often require the prog-
ress of the students instructed at home to be mea-
sured by standardized tests that are widely recog-
nized as valid indicators. The tests must be taken at
designated times in the student’s studies. In some ju-
risdictions, the parents must maintain a portfolio of
their children’s work that is evaluated by state certi-
fied teachers.
In addition to these requirements, home schools
are subject in some states to visits by state officials
to assess the quality of the instruction. This practice
is considered permissible by the courts so long as the
visits do not hinder parents’ efforts to instruct and
that these appearances do not occur often. If parents
do not wish to consent to these visits, they are given
in some jurisdictions the option of going to court to
convince a judge an equivalent education is being
given.
Home Schooling Constitutional Defenses
Due Process Fundamental Rights
In Meyer v. Pierce and Farrington v. Tokushige,
U.S. Supreme Court cases of the 1920s, the funda-
mental right of parents to direct the education of
their children was established. These decisions are
still heavily cited today by those claiming the right to
home school in federal and state courts. They con-
tend that because these decisions have given parents
this right, its denial violates the right of due process.
If a right is deemed to be fundamental, it is based on
the premise that it is provided for in the U. S. Consti-
tution.
Due Process Vagueness
Under the Due Process clause, parents of home
schooled children have contended the compulsory
attendance statutes of their state were so vague and
ambiguous, they were unconstitutional because a
reasonably intelligent person would not be able to
determine when he was violating the law and the
person deciding whether such violation had oc-
curred had no clear standards to go by in making his
ruling.
Frequently, the LITIGATION in this area revolves
around the meaning of such terms as ‘‘equivalent ed-
ucation’’ or ‘‘private school.’’ The meaning of these
terms are important in these cases because it is upon
these and other similarly worded phrases that states
have granted exemptions from their compulsory at-
tendance laws and their penalties.
Due Process Arbitrariness
The Due Process clause has also been used to
challenge these laws by claims that officials have too
much leeway in performing their duty to apply the
law. Although court cases involving this issue have
not been decided in favor of the parents, the U. S.
Supreme Court in a context other than home instruc-
tion has said that any decision involving a fundamen-
tal right must be made by an IMPARTIAL party. In spite
of subsequent U. S. Supreme Court cases which af-
firmed this principle in home schooling cases, the
parents were unsuccessful.
Free Exercise
By definition, a claim for exemption based on free
exercise can only be used, if at all, by those who have
home instruction for religious reasons. The only U.
S. Supreme Court case that has ever decided any
case involving home teaching is Wisconsin v. Yoder.
Decided in 1972, it involved a group of Amish who
challenged the compulsory attendance laws of their
state. For three centuries, the members of this reli-
gious sect taught their children at home in accor-
dance with their religious belief that education in a
public school would violate the tenets of their faith.
The Amish pointed out this home education gave
their children the skills to function effectively in a so-
ciety that was isolated from the general public.
Unlike the decisions in Meyer v. Pierce, and Far-
rington v. Tokshige the Amish in Yoder did not rely
upon due process grounds, but on the belief that
compulsory attendance laws of Wisconsin violated
the Free Exercise clause of the U. S. Constitution pro-
hibiting interference by the government with prac-
tices found to be religious and not just personal pref-
EDUCATION—COMPULSORY EDUCATION
454 GALE ENCYCLOPEDIA OF EVERYDAY LAW
erences. The Court balanced the interest of the state
in educating children against the right of the Amish
to practice their religious beliefs and concluded the
state of Wisconsin had failed to show the state inter-
est of educating its citizens in what is clearly the soci-
ety of the general public outweighed the interest of
the Amish in not having governmental interference
with their religious practices.
In weighing and balancing the interests of these
opposing parties, the Court sharply limited the use
of Yoder to persons engaged in home schooling for
future cases. The Court noted the three-century tra-
dition of home education and that its content did en-
able Amish children to be able to function as adults
in their separate society. Therefore, the state interest
present in this case was rendered irrelevant by the
Amish isolation from the general society. Through
the use of this balancing test and its limited applica-
tion of the Free Exercise clause to an unusual reli-
gious group, the court could affirm the interest of
the state in educating its citizens, allowing the com-
pulsory attendance laws to stand. In fact, lower feder-
al court cases subsequent to Yoder have decided
against other religious groups that instruct their chil-
dren at home because they lacked the isolation of
the Amish from modern life.
With this decision, a principle was established giv-
ing in theory greater protection to those who gave
home instruction for religious reasons. However, the
requirement that the belief of the party claiming Free
Exercise protection was religious, and not one of per-
sonal preference or philosophy, and that the com-
pulsory attendance law would severely impact such
a belief would in practice be difficult to satisfy. The
weight of cases subsequent to Yoder indicates it is far
easier for the state to show the regulation fulfills a
compelling or merely legitimate interest.
Only two state supreme court cases decided after
Yoder involving home schooling parents using the
Free Exercise clause resulted in a successful conclu-
sion for them. Those states are Michigan in Michigan
v. DeJonge, decided in 1993, and North Carolina in
Delconte v. State of North Carolina, rendered in
1985.
Free Speech
There have been few successful cases on such
claims, but a notable example is In re Falk, a New
York Family Court case decided in 1981. So far there
have been no state or United States Supreme Court
cases upholding the use of the right of free speech
under the 1st Amendment as a defense by parents
against these laws.
Right to Privacy
The few cases that have used this defense for
prosecution under compulsory attendance laws have
not found courts to be receptive to it. The one case
decided in favor of the parents was a trial court deci-
sion in Massachusetts that is not binding outside the
state or to any great extent within that jurisdiction.
Ninth Amendment
The Ninth Amendment says that the rights of the
citizens of each state are not limited by those listed
in the Constitution. The contention by parents that
a right to home school is implied by this provision
has only been agreed with by Perchemlides v. Friz-
zle, the case mentioned under the right of privacy.
Access of Home Schooling Students to
Public School Facilities and Activities
Home School Parents’ View
Parents who choose to home school cope with a
number of disadvantages. These include isolation,
the lack of opportunity to participate in scholastic
sports and other extra curricular activities, and the
lack of resources available in public schools, such as
a library or instruction in specialized courses. In sur-
veys, a majority of home school parents expressed
the desire to have their children enroll in a public
school on a part-time basis in order to take special
courses that are beyond the parents’ ability to teach
or to participate in extra-curricular activities includ-
ing athletics. Most of the litigation on part-time en-
rollment involves whether these children should be
allowed to play on the athletic teams of public
schools.
Oppositions’ View
Opposition to access of public schools by those
students not enrolled full-time is strong at the local,
state, and national levels. Town and city boards of ed-
ucation, state athletic associations, and national
trade groups, such as the National School Boards As-
sociation, have been against access by outside stu-
dents because of fairness and administrative reasons.
They argue the accessibility by non-enrolled stu-
dents, including those home schooled, is unfair be-
cause since these students have chosen not to enroll,
they should not be entitled to benefit from the limit-
ed resources of public schools. From an administra-
tive point of view, the public schools would be faced
with additional burdens such as providing supervi-
EDUCATION—COMPULSORY EDUCATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 455
sion to a greater number of students participating in
a class or activity and having perhaps to transport
some students at times different from those of full-
time enrolled students.
Furthermore, they argue that the U. S. Constitu-
tion does not provide a right for someone not en-
rolled in a public school to participate in any of its
classes or other activities, including athletics. Home
school parents have challenged these policies in the
courts by using the Free Exercise clause of the First
Amendment and the Due Process and EQUAL
PROTECTION provisions of the 14th Amendment.
Constitutional Arguments Raised in Court
Judges have, with few exceptions, been unrecep-
tive to the claims of home school parents. Their un-
willingness to grant the parents and their children
what they want is based on the general principle
cited by school administrators and others that there
is no constitutional right to participate in any public
school program, including athletics. Instead, wheth-
er a student is allowed to join a club or athletic team
of a public school is a privilege local school officials
can choose to grant or deny at their discretion.
Courts agree with them that sports and other extra-
curricular activities are an integral part of a student’s
education in a public school, and this legitimate ob-
jective would be frustrated if students not enrolled
full time were allowed to participate.
In regard to the specific constitutional arguments
put forth by home school parents, courts have said
that because there is no burden placed on the reli-
gious faith and practices of those in home schools,
there is no violation of the Free Exercise clause.
Fourteenth Amendment claims based on Equal Pro-
tection and Due Process have also generally failed.
The interest of the public school officials in efficient-
ly carrying out their administrative responsibilities
outweighs any concern of the home school students’
not being treated equally. Due Process claims also
are usually unsuccessful because denial of access to
public schools and their programs does not amount
to a denial of a fundamental right under the U. S.
Constitution. The liberty the parents are entitled to
under the U. S. Constitution is inapplicable here be-
cause, since participation by home school children
in public school activities and programs is a privilege
that may be granted or denied, parents only have an
expectation their offspring will be allowed to partici-
pate. Therefore, no constitutional claim under Due
Process is viable.
In addition, courts view the parents’ decision to
educate their children at home as an exercise of their
constitutional rights, and it is inconsistent for the
parents to benefit from the public education they
have chosen to reject.
Legislative Action
In recent years, a number of states have chosen
to address this problem through their legislatures.
Oregon, Idaho, and Florida have enacted laws allow-
ing children educated at home to take part in what
is offered by the public schools. Each of these states
places conditions on these STATUTORY provisions
which may require submission to a greater degree of
oversight and monitoring than home school stu-
dents and parents would experience otherwise. For
example, a student may have to submit additional
documentation to prove to the satisfaction of local
school officials that the state home school regula-
tions are being followed. They may also have to ob-
tain a designated minimum score on a standardized
test considered credible by that state as well as to sat-
isfy all the district eligibility and other requirements
governing the behavior and performance expected
of students enrolled full-time in public schools.
What is unique about the Florida statute is that it
openly recognizes a state interest in the participation
in public school programs and activities of students
educated at home. This is significant because the
outcome of many court cases involving children edu-
cated at home turns on the view of the courts as to
whether the rights of these children are outweighed
by the interests of the state in public education. Be-
cause these statutes have been passed only recently,
it is difficult to assess their impact. However, making
participation an interest of the state may result in less
opposition to the presence of students who are not
enrolled full-time.
Other jurisdictions, such as Maine, provide for ac-
cess to the public school by children educated at
home by obtaining approval from the local school su-
perintendent. The decision to allow a home school
student to participate will continue to be made on
a case-by-case basis. However, the Maine statute and
others similar to it require the superintendent not to
make these decisions arbitrarily.
Keeping Current on New Developments
in Your State
Compulsory education laws and their impact on
home schooling are subject to frequent changes in
EDUCATION—COMPULSORY EDUCATION
456 GALE ENCYCLOPEDIA OF EVERYDAY LAW
any jurisdiction. New laws passed by the legislature,
administrative regulations handed down by those
state agencies given the responsibility over educa-
tional matters, and new court decisions can all affect
parents who educate their children at home. Organi-
zations, especially the Home School Legal Defense
Association, monitor closely new developments at
the state and federal level. In addition, every state
now has web sites where you can access recent court
decisions as well as the code of laws for that jurisdic-
tion. Many states have also made their code of ad-
ministrative regulations available to the public. These
materials are generally searchable by key words in
court decisions, administrative regulations, and the
code of laws. The best way to access these kinds of
materials for a particular state is to log on to http://
www.findlaw.com. A number of links will appear that
pertain to different categories of materials. Click on
‘‘State Resources’’ and separate links for each state
will appear. A breakdown for each state will direct
you to those separate links for the state code of laws,
recent court decisions, and administrative regula-
tions.
Additional Resources
A Review of Home School Research: Characteristics of
Families and Legal Outcomes. Brian D. Ray, National
Home Education Research Institute, 1990.
Home Centered Learning Annotated Bibliography.
Fourth Edition. Brian D. Ray, National Home Education
Research Institute, 1994.
Home Education Magazine. Mark and Helen Hegnor,
1983.
Home Schooling and Research Guide for Fifty States.
Ninth Edition. Steve Deckard, Vision Publishing, 1998.
Home Schooling on the Threshold: A Survey of Research
at the Dawn of the New Millenium. Brian D. Ray, Na-
tional Home Education Institute, 1999.
Home School Digest. Wisdom’s Gate, 1987.
The Home School Report. Christopher J. Klinka, Home
School Legal Defense Association, 1985.
Home Schooling in the United States: A Legal Analysis. Re-
vised Edition. Christopher J. Klinka, Home School Legal
Defense Association, 1999.
Home Schooling: Political, Historical, and Pedagogical
Perspectives. Jane Van Galen and Mary Ann Pitman,
Abex Publishing, 1991.
Home Schooling Today. S Squared Productions, 1992.
School Law Reporter. National Organization on Legal Prob-
lems in Education, 1987.
The Law of Homeschooling. William M. Gordon and
Charles J. Russo, National Organization on Legal Prob-
lems in Education, 1994.
The Right to Home School: A Guide to the Law on Parents’
Rights in Education. Christopher J. Klinka, Carolina Ac-
ademic Press, 1998.
The Yearbook on Education Law. National Organization
on Legal Problems in Education, 1988.
Organizations
Genesis Institute
740 S. 128 St.
Seattle, WA 98168-2728 USA
Phone: (206) 246-5575
Primary Contact: Rev. Walter Lang, D.D, Director
Home School Legal Defense Association
P.O. Box 3000
Purcellville, VA 20139-9000 USA
Phone: (540) 338-5600
URL: http://www.hslda.org/
Primary Contact: Charles L. Hurst, Office Manager
National Association for Legal Support of
Alternative Schools
P.O. Box 2823
Santa Fe, NM 87504 USA
Phone: (505) 471-6928
Primary Contact: Ed Nagel, Coord.
National Home Education Research Institute
P.O. Box 13939
Salem, OR 97309 USA
Phone: (503) 364-1490
Primary Contact: Brian Ray, Ph.D., President
National Homeschool Association
P.O. Box 327
Webster, NY 14580-0327 USA
Phone: (513) 772-9580
Primary Contact: Susan Evans, Office Coordinator.
National Organization for Legal Problems in
Education
300 College Park
Dayton, OH 45469-2280 USA
Phone: (937) 229-3589
Primary Contact: Robert Wagner, Executive
Director
Parents Rights Organization
12571 Northwinds Drive
St. Louis, MO 63146-4503 USA
Phone: (314) 434-4171
Primary Contact: Mae Duggan, President
EDUCATION—COMPULSORY EDUCATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 457
Rutherford Institute Legal Department
P.O. Box 7482
Charlottesville, VA 22906-7482 USA
Phone: (804) 978-3888
Primary Contact: John W. Whithead, President
EDUCATION—COMPULSORY EDUCATION
458 GALE ENCYCLOPEDIA OF EVERYDAY LAW
EDUCATION
CURRICULUM
Sections within this essay:
• Background
• Authority over Educational Curricula
- Federal Authority
- State Authority
- Local Authority
- Parental Authority
• Ideological Content
• Curriculum and Free Speech
• Making Curriculum Decisions
• National Education Goals
• National Standards
• Additional Resources
Background
According to Black’s Law Dictionary, ‘‘curricu-
lum’’ refers to the ‘‘set of studies or courses for a par-
ticular period, designated by a school or branch of
a school.’’ But curriculum also refers to the complete
range of activities designed by an educational institu-
tion to foster education. Fundamentally, curriculum
outlines what students are supposed to learn and
how they are to do it. Because there is much room
for divergence of personal viewpoints in these is-
sues, a school’s curriculum fosters some of the most
emotional and contentious debates in education law.
From a legal perspective, curriculum issues focus
on two areas:
• The range of courses or instructional pro-
grams available to students
• The aggregate of activities, materials, proce-
dures, and instructional aids used in the in-
structional program
Local school boards and officials typically make the
decisions regarding curriculum and instructional ma-
terials for their schools, although some state authori-
ties may limit their discretion to some extent.
The subject of curricula touches on federal, state,
and local government authority, every course taught
in school, and every level of school. The standards
and objectives of every state differ with respect to
curricula in their schools. All of this makes for a very
extensive topic. A focus on the curricula in public
schools from kindergarten through grade twelve
(primary through secondary grades) touches on the
key elements of the topic while reducing the scope
of the topic to manageable proportions.
The curricula for primary and secondary schools
are designed to integrate across the various grade le-
vels. They are also intended to provide a coherent
and comprehensive educational experience for each
student who undertakes and completes all grade le-
vels. Curricula are also meant to accommodate the
many differences in learning styles and abilities and
to account for different interests and aptitudes.
Thus, a thoughtful school curriculum offers a broad
range of options and tracks. Students either elect or
are placed in these options or tracks based on diag-
nostic counseling, academic performance, and con-
sultation with parents and students. Each state sets
curricular policy that applies to schools within its
JURISDICTION, but local and individual variations
occur according to the degrees of freedom allowed
by the basic policy.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 459
Authority over Educational Curricula
Some may be surprised to learn that the federal
government does not determine what students
should know and be able to do in any subject at any
level of schooling. Instead, implementing standards
for students’ performance is left to state and local au-
thorities and to some extent with parents. There are
some 16,000 school districts in the United States.
Each one is administered and financed by a local
community and by one of 50 state departments of
education. This extensive local control, one of the
defining characteristics of American education, has
caused school standards to correlate with the socio-
economic status of the communities in which they
are located.
Federal Authority
As stated above, the federal government has his-
torically played a minor role in education. In fact, the
Constitution relegates most of the responsibility for
education to the states. Thus, until the 1960s, the
federal government largely stayed away from educa-
tion. While the trend for the federal government to
become involved in education issues has continued,
even today, the total spending by the federal govern-
ment accounts for less than 10 percent of the total
spent for K-12 education. But because of heavy feder-
al regulation, these federal dollars wield a dispropor-
tionate amount of influence.
Federal programs and regulations increased dra-
matically after 1965. As of 2002, the Department of
Education spends over $30 billion per year on K-12
and higher education expenses, and hundreds of ed-
ucation programs are scattered throughout many
other federal agencies. Most are designed to help
disadvantaged children, though their records of suc-
cess vary.
Perhaps the most prominent role of the federal
government in terms of curricula has been to enforce
and enhance rights to educational opportunities and
educational equality. This function has involved the
enforcement of constitutional rights to education
and an adequate curriculum. These federal efforts
have generally focused on guaranteeing equality of
access to educational content rather than the con-
tent or purpose of the instruction itself. Other than
these affirmative efforts, the federal government has
hesitated to establish or control a school’s curricu-
lum. Rather, the government’s role has been more
to encourage schools to modify and improve curricu-
lum, and currently, these suggestions are being
backed up with funding and do not merely rely on
persuasion.
State Authority
The states are the entities primarily responsible
for the maintenance and operation of public schools.
The states are also heavily involved in the establish-
ment, selection, and regulation of curriculum, teach-
ing methods, and instructional materials in their
schools.
Each state’s constitution requires it to provide a
school system where children may receive an educa-
tion. Many state constitutions also contain express
provisions for creating educational curricula. Some
state constitutions even empower state authorities to
select textbooks and educational materials. Besides
constitutional authority, state governments also have
authority to legislate in this area, or they can autho-
rize officials to establish, select, and regulate curricu-
lum.
State legislatures have frequently exercised their
authority to mandate specific courses to be taught in
public schools. They have also set mandatory re-
quirements for students to graduate. In cases where
state rules and regulations for courses do exist, they
must be followed. Local school districts may, howev-
er, offer courses and activities in the instructional
program beyond those required by state STATUTE.
Other states delegate more of their authority. They
usually prescribe a model curriculum framework, al-
lowing local authorities to develop their own curricu-
la based on the general state goals.
In many jurisdictions, state authorities adopt text-
books and instructional materials. Local boards and
educators then may select from among the pre-
approved materials. Generally, local authorities have
the authority to declare state-adopted instructional
materials unacceptable. States may mandate the use
of uniform, adopted textbooks within a school’s in-
structional program, but such exercise of power is
rare. Instead, local boards are usually allowed to se-
lect materials to supplement the state-selected mate-
rials.
Local Authority
It is well established that local school boards or
districts hold a great deal of authority over the curric-
ula in their schools. Their authority is paramount ex-
cept when there are overriding federal and state con-
cerns. Otherwise, the local school board has
complete discretion to determine what courses to
offer, continue, or discontinue. Federal and state
governments may impose minimum standards with
which local boards must conform, but local boards
EDUCATION—CURRICULUM
460 GALE ENCYCLOPEDIA OF EVERYDAY LAW
of education are generally permitted to supplement
or expand courses or activities and materials.
The history of LITIGATION with respect to curricula
shows that courts rarely interfere with a local board’s
authority to select and regulate the curriculum with-
in its jurisdiction. By comparison, there are limits on
the relative authority of teachers, students, parents,
and the rest of the community. Local school boards
have discretion over issues relating to the curriculum
that it deems most suitable for students. This ex-
tends to the teaching methods that are to be em-
ployed and include the books and other educational
tools to be used.
Parental Authority
Parents are free to direct the education of their
children, including the choice of a private school.
However, states have the power to regulate private
schools, with the exception of religious institutions.
Parents are particularly active in issues relating to
special education which is available for children with
disabilities. A child’s DISABILITY must adversely affect
the child’s educational performance in order for the
child to receive special education assistance. The In-
dividuals with Disabilities Education Act (20 U.S.C. §§
1400 et seq.) is a federal law that contains a process
for evaluating a child’s special needs and for pre-
scribing an individualized education program for
children with special needs. Most states have enact-
ed their own laws that parallel the Act.
Homeschooling—legal in all fifty states—is an in-
creasingly popular option for some families. It is per-
haps the greatest expression of parental control over
the curriculum issues that affect their children.
Homeschooling requires a large time commitment
on the part of the family. There may be additional re-
quirements as well. For example, in some states par-
ents need to register their intent to homeschool with
the state’s department of education or the parent’s
local district school board. Furthermore, many states
require annual EVIDENCE of home-schooled chil-
dren’s progress.
Ideological Content
Schools may decide upon curricula based upon
local community views and values as to educational
content and methodology. Even so, school boards
are limited in their ability to remove materials from
the curriculum, especially when a removal is based
exclusively on ‘‘ideological content.’’ Decisions
about the curriculum cannot be used to dictate views
on politics, nationalism, religion, or other matters of
opinion.
When trying to insure the school board’s discre-
tion is being exercised in a constitutionally permissi-
ble manner, people need to examine the intent of
the board members. Courts are not limited to exam-
ining the objective motivation of the board but may
consider individual motives and even the mental
processes of individual board members.
Curriculum and Free Speech
Activities in the classroom are supervised by facul-
ty and are designed to teach or convey particular
knowledge or skills to students. Consequently,
school boards and educators must have broad con-
trol over the approval of the materials used. In view
of school board responsibilities in this respect, state
laws have almost uniformly required the obedience
of subordinate employees, including the classroom
teacher, to follow the board’s curriculum choices
and related mandates. Teachers certainly enjoy a de-
gree of academic freedom and First Amendment
rights; these rights do not give teachers the authority
to disregard the curriculum directives of the board.
In sum, the courts have declared that individual
teachers may not simply teach what they please.
A school board authority almost always extends to
classroom expression. Thus, public schools may limit
classroom speech to promote certain educational
goals. This also touches on the use of public school
facilities by groups that promote a certain agenda or
otherwise exercise their right to free speech. Al-
though a school may occasionally open a classroom
for other purposes, there is no doubt that during in-
structional periods the classrooms are reserved for
other intended purposes: the teaching of a particular
course for credit. In such periods, classroom speech
and expression may be reasonably restricted.
As we have seen, a school’s curriculum includes
actual instruction as well as classroom materials. For
example, textbooks, lab equipment, and other rou-
tine instructional materials are used to support a
school’s curriculum. These are subject to the school
board’s control. Additionally, displays in or around
the classroom or the school may be curricular in na-
ture. These materials are therefore subject to broad
control by school authorities.
EDUCATION—CURRICULUM
GALE ENCYCLOPEDIA OF EVERYDAY LAW 461
Making Curriculum Decisions
Decisions about a school’s curriculum must be
based upon legitimate pedagogical concerns. On oc-
casion, these concerns have included teaching mate-
rial, classroom expression, or other matter criticized
on the grounds of the following issues:
• Advocacy of political or similar matters
• Bias or prejudice
• Conformity or nonconformity to shared or
community values
• Distracting from an educational atmosphere
• Inability to teach prescribed curriculum be-
cause of disagreements with course content
• Lack of neutrality on religious matters
• Quality or professionalism
• Sexually harassing speech
• Suitability or unsuitability for intended stu-
dents
• Vulgarity, PROFANITY, nudity, sexuality, drug
use, violence or other inappropriate themes
The definition of ‘‘legitimate pedagogical concerns’’
may be outlined in state statutes or regulations. State
Education Board policies also may be relevant.
An important consideration is the age, maturity,
and sophistication of the students to which educa-
tional material is to be provided. A school’s oversight
or authority over curriculum matters is greater
where younger students are involved.
Schools need to identify pedagogical concerns be-
fore making decisions about a curriculum. Curricular
decisions should not be made after a parent or some-
one else makes a complaint about ideological issues,
and when there has been no pedagogical review.
Such decisions are as suspect as the self-serving com-
ments that attempt to justify those decisions made
after the fact and not based on the previous record.
National Education Goals
At an education summit held in 1989, President
George H. Bush and every state governor agreed
upon 6 national education goals for the United States
to achieve by the year 2000. Two more goals were
added in 1994, and Congress passed legislation
known as the National Education Goals. The goals
created a framework for improving student achieve-
ment and refocusing the objectives of education. At
the same time, the goals left specific tactics to state
and local governments and to schools. Basically, the
goals describe a general set of standards toward
which all Americans should strive.
The National Educational Goals to be achieved by
the year 2000 are:
1. All children in the United States will start
school ready to learn.
2. The high school graduation rate will in-
crease to at least 90 percent.
3. U.S. students will leave grades 4, 8, and 12
having demonstrated competency in chal-
lenging subject matters, including English,
mathematics, science, foreign languages,
civics and government, economics, arts,
history, and geography; every school will
ensure that all students learn to use their
minds well, so they may be prepared for
responsible citizenship, further learning,
and productive employment in our na-
tion’s modern economy.
4. The nation’s teaching force will have ac-
cess to programs for the continued im-
provement of their professional skills and
the opportunity to acquire the knowledge
and skills needed to instruct and prepare
all students for the next century.
5. U.S. students will be first in the world in
mathematics and science achievement.
6. Every adult American will be literate and
will possess the knowledge and skills nec-
essary to compete in a global economy
and to exercise the rights and responsibili-
ties of citizenship.
7. Every school in the United States will be
free of alcohol and other drugs, violence,
and the unauthorized presence of firearms
and will offer a disciplined environment
conducive to learning.
8. Every school will promote partnerships
that will increase parental involvement
and participation in promoting the social,
emotional, and academic growth of chil-
dren.
The Goals 2000: Educate America Act codified the
goals and established federal support for voluntary,
EDUCATION—CURRICULUM
462 GALE ENCYCLOPEDIA OF EVERYDAY LAW
state-based systemic reform. These include the de-
velopment and implementation of high academic
standards. The Act calls for state plans to include:
• The development and implementation of
content standards in core subjects
• Student assessments linked through perfor-
mance standards
• Opportunity-to-learn standards or strategies
The Act also funds states’ efforts to support sys-
tematic state reform based on state-developed plans.
Also as a part of the Act, Congress established the
Goals Panel as a new independent federal agency.
The 18-member bipartisan panel consists of 8 gover-
nors, 4 members of Congress, 4 state legislators, the
secretary of U.S. Department of Education, and the
assistant to the president for Domestic Policy.
The Goals Panel functions in the following ways:
• Monitors and reports progress towards the
goals
• Builds a national consensus for the reforms
necessary to achieve education improve-
ment
• Reports on promising or effective actions
being taken at the national, state, and local
levels to achieve the goals
• Identifies actions that federal, state, and
local governments should take to enhance
progress towards achieving the goals and to
provide all students with fair opportunity to
learn
• Collaborates with the National Education
Standards and Improvement Council to re-
view the criteria for voluntary content, per-
formance, and opportunity-to-learn stan-
dards
The dialogue about national goals among legisla-
tors, educators, and school board members through-
out the United States is focused on improving educa-
tion standards for all students in U.S. schools. This
dialogue and the directives and funding embodied in
federal legislation have led nearly every state to de-
sign and implement curricular frameworks or guide-
lines. Many states have even developed or are in the
process of developing ASSESSMENT instruments to
monitor their schools’ progress towards higher stan-
dards.
National Standards
In terms of national trends, the consensus has
been moving toward establishing a set of national
standards for education. So far, there are voluntary
national standards for math, science, and history.
There are standards being developed for other sub-
jects as well.
Many factors that go into decisions about the de-
velopment and implementation of curriculum in U.S.
schools. Some of these are:
• Whether the state and/or district have curric-
ulum guidelines
• Whether state and local guidelines conflict
with each other
• Whether there are a large number of stu-
dents requiring bilingual education
• Whether the state or district requires
schools to follow their guidelines or allows
them to develop their own curricula
• For schools that retain local autonomy over
curricular decisions, whether they may
choose to adopt or ignore state or district
guidelines
For the latter, the school’s choice is likely to be influ-
enced by the school’s history of achievement, com-
munity standards, financial resources, and how it un-
derstands the relationship between these factors and
the curriculum guidelines being provided by the
state or district.
The issue of standards for learning and teaching
has developed in the United States in recent years as
policymakers, legislators, educators, parents, and
community leaders have all shown an increasing con-
cern with students’ achievement levels. The word
‘‘standards’’ has been used in many ways during pub-
lic discussions. Sometimes the term has been used
to represent established levels of achievement; in
other cases it refers to commonly shared sets of aca-
demic subject content, such as those embodied in
state curriculum guidelines.
Curricular guidelines have been used to set stan-
dards in many states and have been linked to state-
administered achievement tests. But standards in the
United States also include more informal means by
which schools maintain and promote the desired le-
vels of achievement for their students. These
achievement levels for schools and for students have
usually been extrapolated from community expecta-
EDUCATION—CURRICULUM
GALE ENCYCLOPEDIA OF EVERYDAY LAW 463
tions, and local communities continue to greatly in-
fluence curriculum and instructional decisions made
at the school level. In the end, standards are partly
a result of local decisions, such as those governing
the selection of textbooks and those affecting a
school’s policy on the promotion or retention of stu-
dents. The guides to standards have developed sig-
nificantly, and school districts are feeling their influ-
ence.
Additional Resources
Education and the Law: A Dictionary. Taylor, Bonnie B.,
ABC-Clio, 1996.
Educational Policy and the Law, Fourth Edition. Yudof,
Mark G., David L. Kirp, Betsy Levin, and Rachel F.
Moran, Wadsworth Group, 2002.
Education Law. Rapp, James A., LexisNexis, 2001.
‘‘Mid-continent Research for Education and Learning.’’
http://www.mcrel.org/. McREL, 2002.
‘‘Rethinking Schools Online’’ Rethinking Schools, 2002.
Available at http://www.rethinkingschools.org/.
‘‘U.S. Department of Education’’ U.S. Department of Edu-
cation, 2002. Available at http://www.ed.gov/.
Organizations
The Alliance for Parental Involvement in
Education (ALLPIE)
P.O. Box 59
East Chatham, NY 12060 USA
Phone: (518) 392-6900
E-Mail: allpie@taconic.net
URL: http://www.croton.com/allpie/
American Association of School
Administrators (AASA)
1801 N. Moore St.
Arlington, VA 22209-1813 USA
Phone: (703) 528-0700
Fax: (703) 841-1543
E-Mail: Info@aasa.org
URL: http://www.aasa.org/
Education Law Association (ELA)
300 College Park 0528
Dayton, OH 45469 USA
Phone: (937) 229-3589
Fax: (937) 229-3845
E-Mail: ela@udayton.edu
URL: http://www.educationlaw.org/
National Institute on Student Achievement,
Curriculum, and Assessment (NISACA)
555 New Jersey Avenue NW, Room 510
Washington, DC 20208-5573 USA
Phone: (202) 219-2079
Fax: (202) 219-2135
E-Mail: sai@ed.gov
URL: http://www.ed.gov/offices/OERI/SAI/
National School Boards Foundation (NSBF)
1680 Duke Street
Alexandria, VA 22314-3493 USA
Phone: (703) 838-6722
Fax: (703) 548-5516
E-Mail: info@nsba.org
URL: http://www.nsba.org/index.htm
U. S. Department of Education (USDE)
400 Maryland Avenue, SW
Washington, DC 20202 USA
Phone: (800) USA-LEARN
Fax: (202) 401-0689
E-Mail: customerservice@inet.ed.gov
URL: http://www.ed.gov
EDUCATION—CURRICULUM
464 GALE ENCYCLOPEDIA OF EVERYDAY LAW
EDUCATION
DESEGREGATION/BUSING
Sections within this essay:
• Background
• Before Desegregation
- The Fourteenth Amendment
- Plessy v. Ferguson
- Brown v. Board of Education
• Desegregation in Theory and Practice
- Busing and ‘‘White Flight’’
- The Needs of the Children
• Innovative Approaches
- Magnet Schools
- Using Criteria Other than Race
• Additional Resources
Background
One of the most important rights Americans have
is the right to a free public education. No child in the
United States, whether native- or foreign-born, can
be denied access to a public school for elementary
and secondary education. While in theory this means
that everyone is entitled to the same educational ex-
perience, in fact that is not necessarily the case. Pub-
lic schools can vary dramatically from community to
community simply because some districts have more
money to spend on education than others.
For years, SEGREGATION of black and white stu-
dents was quite common. In some places, it was
common because local and state laws mandated seg-
regation in one form or another. In other places it
was common because neighborhoods were segregat-
ed (often by choice) and students went to the closest
schools. From the late nineteenth century to the
mid-twentieth century, segregated schools were pro-
tected by the concept of ‘‘separate but equal,’’ up-
held by the U.S. Supreme Court in 1896. SEPARATE BUT
EQUAL was overturned in 1954 in the famous Brown
v. Board of Education decision, but segregation in
the schools continued. In the 1960s and 1970s, ef-
forts were made to desegregate schools across the
country. Many of these efforts succeeded, but many
failed. A number of desegregation efforts, begun with
the best of intentions, turned out to be more divisive
than inclusive.
Desegregation is one of the most complex issues
educators and parents face. In the 1950s, desegrega-
tion was about blacks and whites. When people used
the word ‘‘minority,’’ they meant blacks. As of 2002,
the entire concept of minorities and diversity has
shifted. Minorities can include blacks, Central and
South Americans, Southeast Asians (Vietnamese,
Cambodian, Laotian), Arabs, and a host of others.
This sort of multiple ethnicity existed in large cities
for decades, but in the 21st century people are more
mobile and even small communities can have a
dozen or more ethnic minorities. Consequently,
communities cannot merely take a ‘‘one size fits all’’
approach. Finding the right approach to desegrega-
tion, or rather, to encouraging diversity in the
schools, is an ongoing challenge to school districts
across the country.
Before Desegregation
Education was not always the universally accepted
right that it is today in the United States. Although
some communities did make education a priority,
GALE ENCYCLOPEDIA OF EVERYDAY LAW 465
the United States was primarily an agricultural soci-
ety until the twentieth century. Children might learn
to work the land or be apprenticed to a tradesman
after having only a few years of formal schooling.
Many children had no formal education. Slave chil-
dren had only as much education as their masters al-
lowed or tolerated; most slave owners did not en-
courage their slaves even to learn to learn to read or
write.
The Fourteenth Amendment
The Thirteenth Amendment to the U.S. Constitu-
tion, ratified shortly after the end of the Civil War
prohibited slavery and involuntary servitude. But it
did not specifically grant citizenship to freed slaves,
and Southern states took advantage of this omission.
Congress redressed the balance with the Fourteenth
Amendment, which was ratified in 1868. The amend-
ment stated that all citizens, whether by birth or by
naturalization, were guaranteed EQUAL PROTECTION
under the law, and called for Federal intervention if
states failed to comply. Former Confederate states
that wished to rejoin the United States were required
to sign the Fourteenth Amendment before being re-
admitted.
What the Fourteenth Amendment did not do was
guarantee equal rights. Southern states used the
‘‘separate but equal’’ argument, which allowed them
to keep blacks and whites separate as long as they
did not deprive them of basic legal rights. Eventually,
this arrangement led to a series of discouraging de-
velopments that relegated blacks in the South to in-
ferior status.
Plessy v. Ferguson
One of the factors affected by while Southern un-
willingness to recognize blacks as equals was public
transportation. In 1890 the General Assembly of Lou-
isiana passed a law requiring railroads to provide sep-
arate cars for whites and blacks, with the stipulation
that the separate cars be of equal quality and com-
fort. The law was immediately attacked by CIVIL
RIGHTS groups, and to force the question of whether
it was constitutional, a black man, Adolph Plessy, de-
liberately broke it by taking a seat in a whites-only
car. The law was found constitutional by regional and
state courts and went to the U.S. Supreme Court in
1896. The Court ruled seven to one against Plessy
and thus established as constitutional the concept of
‘‘separate but equal.’’ This concept was a spring-
board for what was called the ‘‘Jim Crow’’ system.
Named for a character in a black minstrel show, the
Jim Crow laws made segregation not merely accept-
able but mandatory. Over the next several decades,
‘‘separate but equal’’ became pervasive, particularly
in the South. Although there were some civil rights
gains for blacks in the ensuing years, a definitive vic-
tory against Jim Crow did not come until 1954.
Brown v. Board of Education
‘‘Separate but equal’’ may have seemed uncon-
scionable to many, but it was the law in many states.
In the 1950s 17 states and the District of Columbia
had laws prohibiting SCHOOL DESEGREGATION. It was
clear to most educators, parents, and children that
there could be no such thing as a separate but equal
education. Several cases appeared before the U.S.
Supreme Court to challenge the constitutionality of
segregated schools, and the Court’s unanimous rul-
ing on Oliver Brown et al. v. Board of Education of
Topeka, Kansas on May 17, 1954 turned the doctrine
of school segregation on its head. ‘‘Separate educa-
tional facilities,’’ said the Court, ‘‘are inherently un-
equal.’’
Although the Brown decision marked the begin-
ning of the end for sanctioned segregation in the
schools, segregation’s end did not come immediate-
ly. In fact, in the late 1950s and early 1960s, several
Souther governors, notably Orval Faubus of Arkan-
sas, Ross Barnett of Mississippi, and George Wallace
of Alabama, vigorously defended segregation. Not
until President Lyndon B. Johnson signed the Civil
Rights Act of 1964 was desegregation dealt a defini-
tive blow throughout the United States.
Desegregation in Theory and Practice
Throughout the 1960s it became evident that de-
segregation was not a clear-cut issue by any means.
As communities struggled with finding the best ways
to desegregate, the racial divide seemed to grow
rather than diminish.
Southern states, which had borne the brunt of the
negative publicity about segregation, began to point
out that the Northern states were equally culpable,
albeit in a different way. For years the South had de
jure segregation—in other words, segregation man-
dated by law. In the North, while there were no seg-
regation laws on the books, most blacks and whites
lived in separate enclaves; often the groups did not
mix, and their children attended local schools. Thus,
in the North there was de facto segregation in the
schools because neighborhoods were segregated.
EDUCATION—DESEGREGATION/BUSING
466 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Busing and ‘‘White Flight’’
Among the methods communities tried to deseg-
regate the schools was the busing of black students
to predominantly white schools. Since the black
schools tended to be in poorer neighborhoods and
had fewer resources, it seemed to make sense to bus
black students to white schools until a balance of
black and white students was attained. The case in
the U.S. Supreme Court that set the ground rules for
all future busing decisions in the courts was Swann
v. Charlotte-Mecklenburg Board of Education,
which was decided in 1970. Two years earlier, the
Court had ruled in Green v. County School Board
that the school board had the responsibility to inte-
grate the schools and to do so promptly. The Char-
lotte-Mecklenburg (Virginia) school board was found
to be out of compliance and was assigned a plan
known as the Finger Plan (named for the man who
devised it). Under the Finger Plan, schools through-
out the district were to work to attain more racial bal-
ance in the schools by busing children into the
schools.
Busing is one illustration of how difficult it is to
achieve true desegregation. In the decades after
Swann, other communities implemented busing. In-
variably, busing is not well-received by blacks or
whites. Legislating action is one thing, but legislating
attitude is quite another. In many large urban cities,
whites who could afford to move to the suburbs,
where the population (and consequently the
schools) were predominantly white, left inner-city
schools with dwindling white student populations.
In Denver, the school district was found to be prac-
ticing ‘‘subtle racism’’ by the U.S. Supreme Court in
Keyes v. School District No. 1. A busing program was
implemented, but the way the system was initially set
up many elementary school students spent half a day
in a de facto segregated school and half a day in an
integrated school.
The 1974 case of Milliken v. Bradley addressed
the issue of ‘‘white flight’’ to the suburbs by suggest-
ing that one remedy would be to bus suburban chil-
dren into the inner city schools in which whites were
the minority. The U.S. Supreme Court ruled that sub-
urban students could not be used to desegregate
inner city schools. White flight continued. Because
most of the people left behind were poor or work-
ing-class, cities lost a tax base. As cities became
poorer, less money was spent on education. Blacks
and other minorities who could afford to move did
so, and the inner city populations became statistical-
ly poorer. By the end of the twentieth century, many
of the largest cities in the United States had public
schools that were racially imbalanced and sadly in
need of funding for maintenance, basic supplies, and
more teachers.
The Needs of the Children
Lost in many of these contentious proceedings
was the simple question of what was best for the
child. Children are not born with a predisposition to
racial prejudice, but they are forced to live with the
decisions of adults. In the inner cities, public educa-
tion has not improved, and in affluent communities,
de facto segregation is still common. While some see
desegregation efforts such as busing as a positive
move, others argue that the money spent on busing
programs would be better spent in revitalizing poor
neighborhoods and schools so that children could
get a good education in their own neighborhood.
But that brings back the question of segregated
neighborhoods. Many people from all ethnic and ra-
cial backgrounds look at desegregation with a mix of
cynicism and resignation.
Innovative Appoaches
Educators, government officials, and parents have
all sought approaches to desegregation that are not
merely superficial. Thinking up these approaches
and implementing them is a challenge, but the fact
that people are willing to seek alternatives to court-
order remedies that may have inherent weaknesses
is a start.
Magnet Schools
Many communities have created ‘‘magnet
schools’’ in which students from across a community
attend. These schools often emphasize particular
courses of study—science or the arts, for example.
Magnet schools, properly funded, can provide edu-
cational and social opportunities for children across
a wide spectrum of racial and ethnic lines. Magnet
schools do not keep people from moving out of the
cities, however. In some places school districts have
attempted to lure suburban students into inner city
magnet schools. In Connecticut, cities such as Hart-
ford and New Haven have created magnet schools
that have been well received. One of the goals of
these schools is to draw students from the predomi-
nantly white suburbs. As part of the state’s desegre-
gation efforts, suburban students can take part in a
program called Open Choice that allows them to
transfer to the inner city schools at no additional
cost. Under normal circumstances, a student who
goes to a district other than his or her own would
EDUCATION—DESEGREGATION/BUSING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 467
have to pay tuition and transportation costs. In Con-
necticut, those costs are underwritten by the state.
Magnet schools are seen by many as a better way
to achieve integration than charter schools, which
are often created specifically to serve the needs of
local neighborhoods and may not have racial or eth-
nic diversity as their prevailing goal (although as pub-
lic entities they are subject to anti-discrimination
laws).
Using Criteria Other than Race
One intriguing idea that some school districts
have begun to implement is integrating schools on
the basis of income rather than race. The idea was
first explored in the early 1990s, and as of 2002 sever-
al high-profile districts use it, including Wake Coun-
ty, North Carolina (which includes the capital city of
Raleigh) and Cambridge, Massachusetts. The idea be-
hind income-based desegregation is that income
may play a more critical role in a child’s educational
experience than race. If parents have enough money
to make educational choices for their children, then
it matters little what color they are; they can take
their children out of the public school system or
move to a more affluent community with better pub-
lic schools. Wealthier schools and school districts will
have more and better resources than inner-city
schools, and all the students who attend will benefit.
In contrast, no student benefits from attending an
inner-city school with limited funds and overflowing
classrooms.
Cambridge is best known as the home of Harvard
University and the Massachusetts Institute of Tech-
nology (MIT). Like many college communities, its
population is racially and economically mixed. There
is no one ethnic majority group. As an article in Edu-
cation Week noted in January 2002, ‘‘in a city with
enclaves of working-class whites and upper-class Afri-
can Americans, the lack of diversity in some schools
had little to do with skin color or national origin. In-
stead, students from wealthier families tended to at-
tend the same schools, and needier children were
clumped together in other schools who tended to
struggle academically.’’ Approximately 40 percent of
the 7,300 students qualify for free or reduced-priced
school lunches. As of January 2002, the percentages
of these students in various schools ranged from 21
percent to 72 percent.
Innovative approaches such as this one may pro-
vide a different frame of reference that meets the
needs of students and communities better. They will
also keep current in the minds of parents and school
administrators the need to improve educational facil-
ities across the board. As racial and ethnic groups be-
come less clearly defined, it may become harder to
justify any kind of desegregation plan. That said, it
will also become harder to justify helping certain
schools or school districts thrive at the expense of
others.
Additional Resources
Beyond Desegregation: The Politics of Quality in African-
American Schooling. Mwalimu J. Shujaa, editor, Corwin
Press, 1996.
Politics, Race, and Schools: Racial Integration 1954-1994.
Watras, Joseph, Garland Publishing, 1997.
The Schools We Deserve: Reflections on the Educational
Crises of Our Times. Ravitch, Diane, Basic Books, 1985.
Separate but Not Equal: The Dream and the Struggle.
Hasking, James, Scholastic, 1998.
The Strange Career of Jim Crow. Woodward, C. Vann, Ox-
ford University Press, 1974.
The Struggle for Equal Education. Lusane, Clarence,
Franklin Watts, 1992.
Swann’s Way: The School Busing Case and the Supreme
Court. Schwartz, Bernard, Oxford University Press,
1986.
Organizations
Center for Education Reform
1001 Connecticut Avenue NW, Suite 204
Washington, DC 20036 USA
Phone: (202) 822-9000
Fax: (202) 822-5077
URL: http://www.edreform.com
Primary Contact: Jeanne Allen, President
National Association for the Advancement of
Colored People (NAACP)
4805 Mt. Hope Drive
Baltimore, MD 21215 USA
Phone: (877) 622-2728
URL: http://www.naacp.org
Primary Contact: Kwesi Mfume, President
National Center for Education Statistics
(NCES)
1990 K Street NW
Washington, DC 20006 USA
Phone: (202) 502-7300
URL: http://www.nces.ed.gov
Primary Contact: Gary W. Phillips, Acting
Commissioner
EDUCATION—DESEGREGATION/BUSING
468 GALE ENCYCLOPEDIA OF EVERYDAY LAW
National Education Association (NEA)
1201 16th Street NW
Washington, DC 20036 USA
Phone: (202) 833-4000
URL: http://www.nea.org
Primary Contact: Bob Chase, President
U. S. Department of Education
400 Maryland Avenue SW
Washington, DC 20202 USA
Phone: (800) 872-5327
URL: http://www.ed.gov
Primary Contact: Rod Paige, Secretary of Education
U. S. Department of Justice, Educational
Opportunities Section, Civil Rights Division
950 Pennsylvania Avenue NW, PHB
Washington, DC 20530 USA
Phone: (202) 514-4092
Fax: (202) 514-8337
URL: http://www.usdoj.gov
Primary Contact: Jeremiah Glassman, Chief
EDUCATION—DESEGREGATION/BUSING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 469
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EDUCATION
DISCIPLINE AND PUNISHMENT
Sections within this essay:
• Background
- Current Issues
- Definition
- Origin of Corporal Punishment
• History
• Codes of Conduct
- Creating Codes of Conduct
- Content of Codes
- Students’ Constitutional Rights and
Sample Cases
- Columbine and Its Aftermath: Zero
Tolerance
- The Learning Moment
• Additional Resources
Background
Current Issues
At the beginning of the new millennium, educa-
tors, law enforcement agencies, governments,
courts, parents, and the general citizenry in the Unit-
ed States considered questions pertaining to student
conduct which were new and troubling. The
late1990s witnessed a number of spectacular on-
campus crimes by juveniles, acts of murder, suicide,
ASSAULT, and massive property damage. The serious-
ness of these events brought attention to the prob-
lems public schools face in managing students who
act out in life-threatening criminal ways. Clamp-
down reaction to enhance security and student pro-
tection competed with legal concerns about student
Constitutional rights, particularly the right to due
process. Other widespread crimes in schools, such
as physical conflicts between students and student
drug use, weapon possession, and theft, disrupted
the academic setting and all too often frustrated the
true goals of education: teaching and learning.
Definition
The word, discipline, is akin to the word, disciple.
Discipline, in its first definition, means learning, just
as the word, disciple, refers to one who learns. Addi-
tional meanings of the word, discipline, suggest the
complexity of the subject as it pertains to individuals
(in this case specifically minors) and the U.S. public
school system. Discipline refers to training and expe-
rience that corrects, molds, and strengthens individ-
uals’ mental faculties and moral character. It also re-
fers to punishment which intends to correct and
which is enforced by those in authority or may be
self-imposed. Discipline refers to the control gained
by enforcing obedience, and it refers to the systemat-
ic orderly behavior defined by codes or rules set
forth by institutions for their members. Discipline
also refers to self-control, to the development of
skills that help individuals resist temptation, act posi-
tively, and function both independently and cooper-
atively in ways which enhance personal development
and community life. All of these definitions have
been central to educators’ efforts to find the most ef-
fective and useful way to support child development
and learning.
Origin of Corporal Punishment
In the colonial era, the Puritan belief that human-
kind is innately tainted by the Original Sin of Adam
and Eve led adults to see children as contaminated
by an evil element which needed to be driven out by
GALE ENCYCLOPEDIA OF EVERYDAY LAW 471
force. Puritans believed that all disobedience and ac-
ademic error was the work of Satan, and children’s
innate proclivity for evil had to be destroyed through
pain and humiliation. The idea that suffering corrects
became fundamental to institutional design, whether
that design was the stocks in which prisoners were
displayed for public abuse or the raised stools and
dunce caps intended to correct student misbehavior
or ignorance through humiliation. ‘‘To spare the
rod.’’ it was believed, led inevitably to spoiling the
child, so slapping, spanking, and whipping were gen-
erally understood as beneficial educational tools.
These beliefs persisted. Indeed, as late as 1977, in In-
graham v. Wright, the U.S. Supreme Court ruled that
spanking did not violate students’ rights, noting the
widespread use of corporal punishment to maintain
discipline in educational settings. Corporal punish-
ment remained legal thereafter in over twenty states.
History
The U.S. Constitution does not address the sub-
ject of public education. Apparently the founding fa-
thers thought the implementation of schools ought
to be the sole responsibility of the States. Initially, ed-
ucation was for the wealthy, and a belief persisted
through the eighteenth century that poor individuals
were not educable or were not worthy of being edu-
cated. In 1852, however, then secretary of state of
Massachusetts Horace Mann urged that States be
obliged to offer public education to all children. The
revolutionary idea behind this PLEA was that all indi-
viduals could and should be educated irrespective of
economic class.
During the middle of the nineteenth century,
some U.S. educators studied European models, for
example, the theories of Philipp Emanuel von Fellen-
berg (1771-1844) who urged that corporal punish-
ment not be used for academic errors and suggested
that learning occurred best with encouragement and
kindness. Francis Parker introduced European ideas
into the public school system in Quincy, Illinois.
What came to be known as the progressive Quincy
Movement attached kindergarten to elementary edu-
cation and extended into the early grades the idea of
learning through play. These pedagogical develop-
ments examined connections between education
and discipline and considered teachers’ roles in cre-
ating environments conducive to learning.
By 1910 attendance at public school was mandato-
ry; children were thus absent on a daily basis from
parental direction and placed under the authority of
educators. This transfer extended teachers’ roles to
parental disciplinarians; teachers functioned in loco
parentis, meaning in the place of parents. During the
first decades of the 1900s as teachers were stepping
further into these parental roles, State legal systems
were beginning to evolve ways to handle juvenile of-
fenders which intended to distinguish them from
adult perpetrators. One value attached to this devel-
opment asserted that while adults should be pun-
ished for their crimes, children should be rehabilitat-
ed for theirs, thus formalizing a beginning to the
separation between juvenile misconduct and suffer-
ing as its remedy.
At the beginning of the twentieth century, good
discipline was evinced as students sitting quietly
while they learned by rote. The conventional wisdom
saw education as a process of controlling student be-
havior while information was transferred from teach-
er to student. This model continues to shape con-
cepts about classroom activities and goals.
Challenging this model, however, were the increas-
ingly popular post-World War II theories of Benjamin
Spock (1903-1998) who disapproved of rigid child-
rearing techniques and urged adults, parents and
teachers alike, to be more affectionate and flexible.
Some critics of Spock’s theories asserted that they
contributed to a growing attitude of permissiveness
and relativity which blurred children’s understand-
ing of right and wrong and encouraged self-defeating
traits like selfishness, indolence, or noncompliance.
Additionally, in the second half of the twentieth cen-
tury, healthcare professionals and educators became
more informed about how student misbehavior may
be connected to physiological or psychological prob-
lems, like attention deficit disorder, hyperactivity, or
emotional disturbance. Changes in the family unit,
increase in the Hollywood celebration of violence,
and effects of illegal drug use also affected students’
ability and willingness to learn in school. Finally, in
the 1990s, juveniles committed serious felonies on
school property, some of which converted schools
temporarily to war zones. Reactions to these events
caused many people to advocate for a return to more
stringent controls of students, which in some circles
acquired to the label, zero tolerance.
Codes of Conduct
In taking charge of students and teaching them,
twentieth-century educators repeatedly faced the
challenge of designing codes of conduct. Doing so
required attention to multiple and sometimes seem-
EDUCATION—DISCIPLINE AND PUNISHMENT
472 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ingly conflicting issues: school organizational needs,
the goals of education, and the nebulous area of per-
sonal rights both for those in charge and for those
being controlled. Educators had to identify features
conducive for learning and then set forth rules and
consequences for misconduct which would allow
problem children to be handled constructively while
the behaving majority of students continued to learn
without disruption. In short, educators had to define
ways to support classroom productivity, encourage
student academic progress, and bring misbehaving
individuals back to positive conduct so they could re-
sume learning. In this task, educators, administra-
tors, and staff became increasingly conscious of legal
issues connected to students’ rights, juvenile legal
status, and the handling of student crime. All of these
issues were addressed independently by different
school boards across the nation and handled differ-
ently by school boards and courts over time.
Creating Codes of Conduct
The issues involved in the process of developing
these codes of conduct constitute an important part
of pedagogical debate and ongoing courtroom delib-
eration. For example, in Blackwell v. Issaquene Co.
Board (5th Cir Miss 373 f2d 749) and Baker v. Dow-
ney Board (California Dist. Ct 307 F supp517), court
decisions attempted to define those school require-
ments and regulations which a court would deem
‘‘reasonable.’’ A properly written document had to
meet four criteria in order to carry a legal presump-
tion of validity:
• The rules had to be in writing: Regulations
students had to obey without a specific ver-
bal command must be in writing.
• The rules had to be specific: Policies had to
clearly stated to students, and without refer-
ring to an outside source or document the
rules had to explain what was expected and
what was prohibited.
• The writing had to be authorized: The writer
of the rules had to have the authority to de-
fine them.
• The written rules had to be published: The
code of conduct had be printed and distrib-
uted, for example in student handbooks, in
letters home to parents, in public announce-
ments during class time and assemblies, and
in postings on bulletin boards.
Richard Curwin, a professor of Education at San
Francisco State University, devised criteria for mak-
ing codes of conduct more effective. His suggestions
were:
• To use positive rather than negative state-
ments
• To be definite about proper and prohibited
behavior
• To be brief
• To spell out consequences
Thus, the courts began the process of educating
the educators on how to arrange the business of
school so that when it responded to misbehavior its
rulings would be deemed valid in the legal setting.
Content of Codes
In light of their wisdom, experience, and training,
educators devised these codes to meet their schools’
particular goals and challenges. Some school codes
employed step programs which distinguished first
offenders from repeat offenders and which handed
down mild penalties for first-offense students but
then graduated the penalties for the misconduct of
repeat offenders. In these cases, students faced con-
sequences determined by their records of behavior.
Thus for a repeat offender a minor INFRACTION might
carry the serious PENALTY of suspension while the
same infraction might elicit only a verbal reminder
for the first offender. Some schools set aside special
classrooms for extra training in matters of self-
control, conflict resolution, and cooperation.
Schools elicited parents’ participation and support in
encouraging their children back to positive behavior
and academic progress.
Discipline policies stated clearly that rules benefit-
ed everyone in the educational community and were
in effect inside school buildings, on school property,
inside school-owned vehicles, and at school-
sponsored activities on or off campus. Codes includ-
ed rules about attendance, absence, and tardiness.
They outlined steps for parents to take in excusing
their children from class and required teachers in
how to keep records of student attendance. Patterns
of unexcused absence or tardiness were quantified
and carried penalties or repercussions which corre-
lated to the extent of the patterns of absence. Misbe-
having students might be detained in the classroom
after other students were free to go on to non-
classroom activities, or they might be required to at-
tend a Saturday detention period. During these
times, students might be given extra academic work
or required to perform maintenance chores on
EDUCATION—DISCIPLINE AND PUNISHMENT
GALE ENCYCLOPEDIA OF EVERYDAY LAW 473
school property. Repeat offenders were subject by
degrees to removal from school; they were removed
from class to a study room; placed in an on-sight sus-
pension area; suspended for a specified time; and ex-
pelled. Thus, for the benefit of the majority, those in-
dividuals who acted out, arguably the ones most in
need of education and support, tended to be increas-
ingly marginalized.
When students break the law on school property,
police officers must take over for educators. Stu-
dents who use alcohol or other drugs, who have in
their possession or deliver to others controlled sub-
stances, who carry weapons, who assault others, are
all subject to the same laws they would face else-
where in the community. Therefore, these forms of
misconduct are not within the school’s JURISDICTION
solely. Students can be charged for crimes commit-
ted on school property; they can go to court and face
court decisions that place them in juvenile detention
centers. Clearly, school codes must address a vast
range of conduct, take into consideration innumera-
ble factors that lie in or beyond the education set-
ting. The codes must respond legally, in line with
community, state, and federal laws on issues con-
nected to DISCRIMINATION, harassment, gender, and
DISABILITY. Academic codes of conduct aim to sup-
port educational goals and be in line with criminal
and civil laws. Often times the courts have had the
task of deciding if the codes achieve this end.
Students’ Constitutional Rights and
Selected Cases
Educators have to negotiate the complicated ter-
rain of competing entities, managing difficult stu-
dents yet remaining mindful of their constitutional
rights, for example, their rights to privacy, JUST
CAUSE, and due process. When crime in schools in-
volve police, certain subjects, conflicts, and events
may come before the courts. Courts elucidate legal
issues but not once and for all: these judgments can
be subsequently redefined, upheld, or found uncon-
stitutional. Questions recur pertaining to the applica-
tion of Fourteenth Amendment protections to stu-
dents as these individuals are subjected to school
regulations.
Issues pertaining to a student’s right to privacy, to
reasonable cause for SEARCH AND SEIZURE, and techni-
calities about Miranda rights, all were examined in
New Jersey v. T. L. O. (1985) 105 S Ct 733, in which
a juvenile (known only by her initials) who was sus-
pected of smoking and then whose purse was found
to contain cigarettes, rolling paper, a bag of hashish,
and some file cards containing what appeared to be
a list of amounts received for drug sales. The Su-
preme Court had to evaluate the relative rights of the
student’s right to privacy against the school’s need
to enforce an orderly environment. One of its con-
clusions was that education requires a disciplined en-
vironment and that means the authority to educate
entails the authority to discipline.
In the 1986 case of IN RE William G., 221 Cal. Rptr.
118, a California court decided that students as a
group have the right to be protected by school offi-
cials from dangerous items or substances and to have
enforced an environment conducive for learning. In
many cases, the courts have to balance competing
entities or claims to rights by opposite parties. In Be-
thel v. Fraser (1986) 478 U.S. 675 and again in Veron-
ica v. Acton (1995) 115 S Ct 2386, courts decided
that students’ rights are secondary to students’ safe-
ty. In Georgia v. Combs (1989) 382 SE2d 691 Ga App
625, the court ruled PROBABLE CAUSE resulted from ar-
ticulated facts which led to a high degree of certainty
that a search would produce EVIDENCE indicating in-
nocence or guilt. These and many other cases pro-
duce the body of court decisions which evolve social
understanding of the law as it applies in ever-
changing circumstances.
Columbine and Its Aftermath: Zero
Tolerance
On April 20, 1999 at Columbine High School in Lit-
tleton, Colorado, two heavily armed students killed
twelve students and one teacher and seriously
wounded nearly two dozen others before killing
themselves. The following month in Conyers, Geor-
gia, a 15-year-old student wounded six other stu-
dents. In December an Oklahoma middle-school stu-
dent took a semiautomatic handgun to school and
wounded five students. In March 2001 a California
student killed two classmates and wounded thirteen
others.
These and other murders perpetrated by children
against classmates and teachers caused a furor of re-
active security measures, precaution taking, and a
new commitment to stringent control. Zero toler-
ance, which initially referred to students carrying
weapons to school, fueled provisions for suspension
and expulsion and increased them. In Chicago, in the
wake of commitment to zero tolerance, suspensions
and expulsions jumped to an average of 90 per week,
mostly Latinos and African Americans. Proponents of
EDUCATION—DISCIPLINE AND PUNISHMENT
474 GALE ENCYCLOPEDIA OF EVERYDAY LAW
more stringent codes pointed to the staggering fact
that every day in the United States twelve children
are killed by gunshot. The fact that one day they
were gathered together in their deaths at Columbine
brought national consciousness to a new level. Many
schools nation-wide, particularly in urban settings,
instigated entry-area body and bag searches, stricter
dress codes, and random drug testing. Yet critics of
this stringent disciplinary action urged educators to
return to a positive vision of students and search for
punishments that teach rather than using those that
increase the drop-out rate.
The Learning Moment
Many theories about discipline shift attention
from external punishment and reward systems to in-
ternalization of socialization skills and moral sense.
For example in Schools without Failure, William
Glasser explains the short-term value of external
punishment and the limitations of trying to control
others through fear tactics. Theorists like Abraham
Maslow, in Motivation and Personality, and W. Ed-
wards Deming, in Out of the Crisis, suggest a return
to humane education principles and affirmation of
human goodness. Many thinkers want educational
institutions to finds their path into a new way of
being which creates the learning moment, which
sees misbehavior as an opportunity and instills faith
in human nature as it pursues learning and instructs
through misconduct. Marvin Marshall, in Discipline
without Stress, Punishment, or Rewards, urges peo-
ple to remember that so long as they are manipulat-
ed by outward threats of punishment or hopes of re-
ward, they may be neglecting intrinsic values which
in the end are the ones that satisfy, induce self-
control, and energize toward self-improvement.
These affirmations have to be balanced with the seri-
ousness of turn-of-the-millennium juvenile crimes
and the awesome responsibility of educators to keep
children safe while they engage in learning.
Additional Resources
Discipline without Stress, Punishments, or Rewards: How
Teachers and Parents Promote Responsibility and
Learning. Marshall, Marvin. Piper Press, 2001.
Encyclopedia of American Education. 2nd ed. Unger,
Harlow. G. Facts on File, 2001.
Safety, Order, and Discipline in American Schools: Defin-
ing the Authority of Educators and Law Enforcement
Personnel. Avery, Gary. Law Advisory Group, Inc.,
2001.
Schools without Failure. Glasser, William, Harper & Row,
1969.
Zero Tolerance: Resisting the Drive for Punishment in our
Schools. Eds. Ayers, William, Bernardine Dohrn, Rick
Ayers. The New Press, 2001.
Organizations
National Association of Elementary School
Principals (NAESP)
1615 Duke St.
Alexandria, VA 22314 USA
Phone: (800) 386-2377
National Education Association (NEA)
1201 16th St., NW
Washington, DC 20036 USA
Phone: (202) 833-4000
EDUCATION—DISCIPLINE AND PUNISHMENT
GALE ENCYCLOPEDIA OF EVERYDAY LAW 475
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EDUCATION
DRUG TESTING
Sections within this essay:
• Background
• Federal Court Decisions
- Mandatory Suspicionless Testing of
Student Athletes Ruled Constitu-
tional
- Lower Court Disagreement over
Broader Extracurricular Student
Testing
• State Court Decisions
• Additional Resources
Background
Mandatory drug testing in public schools is a rela-
tively new issue for the law. Introduced during the
late 1980s and expanding over the next decade, the
practice of analyzing student urine for illegal drugs
is carried out in a small but growing percentage of
schools nationwide. In 2001, the New York Times es-
timated that hundreds out of the nation’s 60,000
school districts require some form of testing. Thus
students in thousands of individual schools are af-
fected, and more districts have indicated their inter-
est in adopting testing, too. Currently, the practice
has been ruled constitutional in one form by the U.S.
Supreme Court.
School drug-testing grew out of the so-called war
on drugs. Prior to the 1980s, citizens were rarely test-
ed for drugs except by law enforcement officers and
primarily when there were grounds for suspicion. Ex-
ceptions existed in a few areas, notably in the routine
testing of college and pro athletes and prison in-
mates. But along with other sweeping social
changes, the drug war introduced the idea of so-
called mandatory suspicionless testing in the work-
place. After spreading from the public to the private
sector, the trend reached public high schools in lim-
ited form—in the testing of student athletes—in the
late 1980s.
Legally, mandatory suspicionless drug testing has
proved controversial both in the workplace and
school. The practice raises questions about how to
balance a perceived social need for health and safety
with privacy concerns. Not surprisingly, in light of its
rulings favorable to workplace testing, the U.S. Su-
preme Court upheld suspicionless student drug test-
ing in 1995. The Court already viewed the privacy
rights of public school students as being lower than
those generally enjoyed by adult citizens. Now, the
majority saw an important social need for schools to
combat drug usage, viewing the loss of student priva-
cy as inconsequential.
However, the legal status of student drug-testing
is cloudy. In large part, this is due to dramatic
changes following the 1995 decision. School districts
correctly saw the Supreme Court’s decision as a
green light, but some took the practice much fur-
ther. Not merely student athletes but a range of stu-
dent activities, such as band and choir, began requir-
ing students to pass drug tests as a condition for
eligibility. This trend has brought new lawsuits and
divergent verdicts from the federal courts. As a re-
sult, the Supreme Court is expected to clarify certain
limits on school drug testing in 2002.
Important legal milestones include the following:
GALE ENCYCLOPEDIA OF EVERYDAY LAW 477
• The Supreme Court defined students’ re-
duced Fourth Amendment rights in New Jer-
sey v. T.L.O. (1985), where it ruled that
schools do not have to follow the customary
requirements of having PROBABLE CAUSE or a
WARRANT in order to carry out searches. In-
stead, school authorities must follow only a
simple standard based on ‘‘the dictates of
reason and common sense.’’
• In its first landmark drug-testing ruling, the
Supreme Court upheld the suspicionless
drug-testing of railroad employees who are
involved in accidents in Skinner v. Railway
Labor Executives’ Ass’n (1989). The court
held that the government has a compelling
interest in public safety that overrides
Fourth Amendment rights of the employees.
• In a second critical ruling on drug-testing,
the Court upheld the suspicionless drug
testing of U.S. Customs Service employees
in sensitive positions that involve extraordi-
nary safety and national security hazards in
National Treasury Employees Union v. Von
Raab (1989).
• The Supreme Court upheld the constitu-
tionality of mandatory suspicionless drug-
testing of student athletes in Vernonia v.
Acton (1995). Applying its rulings in Skinner
and Von Raab, the Court found that the stu-
dents’ Fourth Amendment rights were out-
weighed by the government’s interest in
drug-free schools when it approved a
school’s policy of random suspicionless test-
ing of student athletes. In the wake of its
landmark ruling, hundreds of school dis-
tricts nationwide adopted similar policies.
• With the expansion of student drug testing
beyond athletics, some schools began re-
quiring random drug-testing as a condition
for participation in other extracurricular ac-
tivities. A panel of the Seventh Circuit Court
of Appeals upheld the constitutionality of
such a school program in Todd v. Rush
County Schools (1998), and the Supreme
Court refused to hear the case, letting the
verdict stand.
• In contrast, another circuit court disap-
proved of broad extracurricular drug testing.
A panel of the Tenth Circuit Court of Ap-
peals overturned a school drug policy in
Earls v. Tecumseh (2001), holding that ex-
tracurricular testing went further than what
is permitted under Vernonia. With the two
circuits in obvious disagreement, the Su-
preme Court accepted the case for review in
2002.
• A federal judge in Texas struck down what
had been the nation’s first school district
policy requiring drug testing of all junior
high school students in Tannahill v. Lock-
ney School District (2001).
At both the federal and state level, the future of
drug-testing policies is in question. In 2001, legal ob-
servers began to note a trend in the courts toward
rejecting student drug testing as more cases ended
in verdicts for plaintiffs who challenged their school
policies. Although some viewed this as a shift in pub-
lic attitudes, it was too early to say definitively what
impact the cases would have on this developing area
of law.
Federal Court Decisions
Mandatory Suspicionless Testing of Student
Athletes Ruled Constitutional
The legal foundation for suspicionless student
drug testing rests upon Vernonia v. Acton (1995). In
that landmark decision, the Supreme Court upheld
the constitutionality of a school policy requiring stu-
dent athletes to pass random urinalysis tests as a
ground for participation in interscholastic sports.
The Court rejected a Fourth Amendment claim as-
serting that such tests are an unconstitutional inva-
sion of privacy. Closely watched nationwide, the de-
cision effectively opened the door for school districts
to institute similar policies of their own.
In the late 1980s, school authorities in the small
logging community of Vernonia, Oregon, noticed a
sharp increase in illegal drug usage and a doubling
in student disciplinary problems. They observed that
student athletes were leaders of the drug culture. Of-
ficials responded by offering anti-drug classes and
presentations, along with conducting drug sweeps
with dogs. After these education and interdiction ef-
forts failed, a large segment of the student body was
deemed to be in ‘‘a state of rebellion,’’ according to
findings of the Oregon District Court.
With the support of some parents, school officials
next implemented a drug-testing policy for student
athletes in fall 1989. It had three goals: prevent ath-
lete drug use, protect student health and safety, and
EDUCATION—DRUG TESTING
478 GALE ENCYCLOPEDIA OF EVERYDAY LAW
provide drug assistance programs. It imposed strict
eligibility requirements: parents of student athletes
had to submit a consent form for drug testing of their
children, and the student athletes had to submit to
tests. Once weekly the school randomly tested 10
percent of all student athletes by taking urine sam-
ples that were analyzed for illegal drug usage—a pro-
cedure known as urinalysis.
A legal challenge to the policy arose when a stu-
dent and his parents refused to consent to drug test-
ing and he was denied the chance to play football.
Their lawsuit charged that the district violated his
Fourth Amendment right to be free from unreason-
able searches and seizures as well as his privacy
rights under the Oregon state constitution. The Dis-
trict Court rejected their claims, but they won on ap-
peal. The school district then appealed to the U.S.
Supreme Court.
In its 6-3 decision, the majority followed earlier
precedents. In particular, it looked back on its land-
mark decision regarding privacy for public school
students, New Jersey v. T.L.O. (1985). That decision
extended the great basis in U.S. law for privacy—
Fourth Amendment protections—to public school
students. It held that they, too, were protected from
‘‘unreasonable’’ searches and seizures of their per-
sons and property by authorities, since public school
authorities are agents of the government. But T.L.O.
set the standard that Fourth Amendment rights are
‘‘different in public schools than elsewhere.’’ In low-
ering student rights, the Court did so observing that
public school authorities have a compelling interest
in supervision and maintaining order that outweighs
individual student rights.
In Vernonia, the majority went further. First, it
distinguished the rights of student athletes from the
already reduced privacy rights of the public school
student body. Justice Antonin Scalia’s majority opin-
ion stated that student athletes have an even lower
expectation of privacy since they routinely undress
in locker rooms, noting that ‘‘school sports are not
for the bashful.’’ Second, it approved the particulars
of the Vernonia school district’s policy. The urinaly-
sis was performed under minimally intrusive condi-
tions similar to those in the schools’ restrooms.
There was no concern that school officials might ar-
bitrarily accuse certain students because every stu-
dent athlete was subject to being tested. Further-
more, participation was ultimately voluntary, since
no one was required to play sports. And finally, the
school’s goals in reducing a serious drug abuse and
disciplinary problem justified the testing.
Three justices dissented. Writing for the dissent-
ers, Sandra Day O’Connor observed that mass suspi-
cionless searches of groups had been found uncon-
stitutional throughout most of the court’s history,
except in cases where the alternative—searching
only those under suspicion—was ineffectual. She
concluded that the school’s policy was too broad and
too imprecise to be constitutional under the Fourth
Amendment.
Lower Court Disagreement over Broader
Extracurricular Student Testing
The practical effect of Vernonia was to clear the
way for student athlete drug-testing in schools na-
tionwide. But the decision did not envision what
happened next. By the mid-1990s, schools had
begun adopting even broader testing policies that
expanded the definition of testable extracurricular
activities to include activities such as band and choir
and, as in the extreme instance of Lockney, Texas,
the entire junior high school student body. This
broadening set the stage for the next constitutional
challenges, which resulted in conflicting verdicts
among federal circuit courts. Given these varying rul-
ings, there is as of 2002 no single standard in federal
caselaw for when public schools may require stu-
dents to pass drug tests.
Initially, one such policy passed constitutional ap-
proval. In 1998, a three-judge panel of the Seventh
Circuit Court of Appeals upheld a school system’s
broad drug testing program in Todd v. Rush County
Schools (1998). At issue was a policy by the Rush
County School Board of Indiana, which in 1996
banned a high school student from participation in
extracurricular programs unless the student first
passed negative for alcohol and other drugs, or to-
bacco in a random, unannounced urinalysis exam.
The policy covered students in activities ranging
from the Library Club to the Future Farmers of Amer-
ica Officers, as well as those who merely drove to and
from school. Any student failing the urinalysis lost eli-
gibility until such time as he or she successfully
passed.
In rejecting a challenge to the policy, the Seventh
Circuit found that the policy was consistent with the
Supreme Court’s ruling in Vernonia. Its brief opin-
ion found sufficient similarity between the intent of
the Indiana and Vernonia programs: deterring drug
use rather than punishing users. The broader scope
of the Indiana policy was not a constitutional prob-
lem, as the court observed that nonathletic extracur-
ricular activities also ‘‘require healthy students.’’ Its
own 1988 decision on drug-testing student athletes,
EDUCATION—DRUG TESTING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 479
Schaill v. Tippecanoe County School Corp., also sup-
ported the broader policy. The Supreme Court de-
clined to review the case. As with the earlier
Vernonia decision, the New York Times reported
that the Seventh Circuit’s decision ‘‘set off a wave of
such policies’’ nationwide. Ironically, however, the
Indiana policy was later struck down on state consti-
tutional grounds.
In 2001, a dramatically different verdict appeared.
A panel of the Tenth Circuit Court of Appeals ruled
that drug-testing for eligibility for extracurricular ac-
tivities violated Oklahoma public school students’
rights in Earls v. Tecumseh. Unlike the Seventh Cir-
cuit, the panel followed a very narrow reading of
Vernonia. It applied that decision’s facts and conclu-
sions to the circumstances of the Tecumseh School
District in Pottawatomie County, Oklahoma, and
found sharp differences. No widespread drug prob-
lem existed in the school, unlike the Vernonia dis-
trict. Moreover, the panel rejected the district’s con-
tention that drug testing was justified because
extracurricular activities involved safety risks for uns-
upervised students. Instead, the panel ruled that the
tests imposed unreasonable searches upon students
in violation of their Fourth Amendment rights.
The Tenth Circuit panel specifically addressed the
question of when a school drug testing policy was ap-
propriate. It expressly stated that it did not expect
schools to wait until drug abuse problems grew out
of control. However, if school officials faced no re-
quirements, they would be free to test students as a
condition of attending school—an outcome that the
justices did not believe the Supreme Court would
uphold.
Significantly, the Earls decisions signaled a deep
rift between two federal circuits in how to interpret
Vernonia. Presumably for this reason, the Supreme
Court accepted the case for review, with a decision
expected some time in 2002. Lingering questions
about the permissibility and scope of such policies
may also have inspired the Court to return to the
question. Indeed, in 2001, legal observers noted a
shift in federal opinions away from support for stu-
dent drug-testing policies. In addition to the Todd
case, a federal judge struck down the pervasive poli-
cy of testing all public school students in grades
seven through 12 in Tannahill v. Lockney School
District (2001), while state courts also ruled against
policies.
State Court Decisions
As a policy matter, student drug testing in public
schools is widely determined by school districts.
State legislatures have thus far not intruded, leaving
these determinations to the discretion of local
school boards. As such, policies vary widely nation-
wide, and even from district to district within given
states. Most schools still have no testing policy, but
those that have adopted policies tend to fall into two
categories: mandatory suspicionless testing is re-
quired of students who wish to play intramural ath-
letics, or, more broadly, it is required not only of ath-
letes but also of students wishing to participate in
extracurricular clubs and organizations.
Legal direction on school policies has come from
the courts. The highest-profile challenges to the poli-
cies have been brought in federal court on Fourth
Amendment grounds, but some cases have been
brought on state constitutional grounds, too. State
constitutions often have broader privacy protections
than are found under the federal constitution, thus
providing powerful legal grounds for plaintiffs who
want to challenge overly aggressive school policies.
The first state constitutional challenge against
mandatory testing of student athletes came in Wilson
v. Ridgefield Park Board of Education (1997). The
American Civil Liberties Union brought the case
against Ridgefield Park, New Jersey school board, ar-
guing that the policy violated state constitutional pri-
vacy rights. A state superior court judge agreed, addi-
tionally finding that the school had no EVIDENCE of
a severe drug problem among athletes, and tempo-
rarily blocked enforcement of the policy pending
trial. But before the case could be heard, the school
board dropped the policy in a 1998 SETTLEMENT.
State courts in Indiana, Oregon, and Pennsylvania
have also found constitutional problems with school
policies. Some state courts have addressed them-
selves to policies resulting from the expansion of stu-
dent testing to other extracurricular activities. In re-
jecting one such policy, the Colorado state supreme
court applied the U.S. Supreme Court’s 1995 stan-
dard from Vernonia v. Acton when it held that high
school marching band members have a higher ex-
pectation of privacy than student athletes who un-
dress in locker rooms, in Trinidad School District
No. 1 v. Lopez (1998). In other state LITIGATION,
school districts in Maryland and Washington discon-
tinued policies following lawsuits. These cases signal
that the legal future of suspicionless student drug
testing is far from certain.
EDUCATION—DRUG TESTING
480 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Additional Resources
Back to School—and a Test You Can’t Study. For Ameri-
can Civil Liberties Union. Available at http://
www.aclu.org/features/f083000a.html.
Constitutional Amendments: 1789 to the Present. Palmer,
Kris E., ed., Gale Group, 2000.
‘‘Court Rulings Signal a Shift on Random Drug Tests in
Schools.’’ Wilgoren, Jodi, The New York Times, March
25, 2001.
‘‘Random Drug Testing of Students Proving To Be a Popu-
lar Idea’’. Walsh, Mark. Education Week, January 28,
1998. Available at: http://www.edweek.org/ew/vol-17/
20drug.h17.
Vernonia School District 47J v. Wayne Acton. Supreme
Court opinion. Available at http://supct.law.cornell.edu/
supct/html/94-590.ZO.html.
West Encyclopedia of American Law. Lippert, Theresa J.,
ed., West Group, 1998.
Organizations
American Civil Liberties Union (ACLU)
125 Broad Street, 18th Floor
New York, NY 10004 USA
Phone: (212) 549-2500
URL: http://www.aclu.org
Primary Contact: Nadine Strossen, President
Drug-Free Schools Coalition
203 Main St., PMB 327
Flemington, NJ 08822 USA
Phone: (908) 284-5080
Primary Contact: David G. Evans, Executive
Director
National School Boards Association
1680 Duke Street
Alexandria, VA 22314 USA
Phone: (703) 684-7590
URL: www.nsba.org
Primary Contact: Anne L. Bryant, Executive
Director
EDUCATION—DRUG TESTING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 481
This Page Intentionally Left Blank
EDUCATION
FINANCE/FUNDING
Sections within this essay:
• Background
• What is Funded?
• Sources of Funding
- Federal Revenues
- State Funding
- Local Funding
• Sources of Information
• Additional Resources
Background
More than half a century ago Adlai Stevenson said,
‘‘The most American thing about America is the free
common school system.’’ The public school system
in the United States is free only in the sense that all
students have a right to attend. According to the Na-
tional Center for Education Statistics (NCES), it cost
an average of just over $6,500 per student to keep
public elementary and high schools (known in the
education community as ‘‘el-hi’’) operating in aca-
demic year 1998-99. Overall the revenues raised for
that school year totaled over $347 billion.
These revenues came from the federal govern-
ment, state governments, and local government.
(Local government includes individual towns as well
as larger municipalities and county governments.)
The bulk of that money (nearly half) came from the
states. The federal government contributed only 7.1
percent of the revenues. That may seem low, but in
fact the federal government has historically contrib-
uted only a small portion of public education funds.
Funding for education has always been a conten-
tious issue. Some people believe that education
funding should be much higher than it is to ensure
that students get the best education they can with
the best resources and the most motivated teachers.
Others believe that educational expenses should be
kept in check so that schools will focus on teaching
students instead of adding educational ‘‘bells and
whistles’’ that do little to provide real educational
value. What constitutes bells and whistles, of course,
makes the debate more challenging. In the early and
mid 1980s many education experts argued that com-
puters in the classroom were a waste of tax dollars.
By the mid 1990s it was clear that computers were
in the classroom to stay, a necessary and essential el-
ement in the education process.
Still, there are many other issues for people to de-
bate. For example, does increased funding increase
student achievement? How long should school
equipment last before it is replaced? Do school dis-
tricts need to fund extracurricular activities, such as
athletic teams? The issue of school vouchers (dis-
cussed in detail in a separate entry) has raised enor-
mous questions in some communities. The idea of
allowing parents to earmark some of their tax dollars
for private schooling has generated much controver-
sy. Clearly, taking money away from the public
schools puts them at a greater financial disadvantage
than they already are. Yet it does children little good
to know that the public school they attend is in the
first year of a turnaround that may last several more
years. Regardless of the many controversies sur-
rounding public education funding, it remains vitally
important and guarantees that all children in the
United States have access to school.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 483
What Is Funded?
Educational funding covers a wide variety of ex-
penditures, all of which are necessary to keep school
systems running. The U.S. Department of Education
defines current expenditures as those that take care
of a schools’ day-to-day operations. Current expendi-
tures include instruction (for example, teacher sala-
ries, textbooks and other equipment), non-
instruction (such as cafeteria services and in-school
bookstores), and support services (including nurses,
libraries, administration, and maintenance). Other
expenditures include facilities equipment and con-
struction, which covers new school construction in-
cluding renovation and expansion of older buildings.
It also includes the purchase of land on which to
build new school structures. Replacement equip-
ment includes expenditures for items that are pur-
chased for the long term (furniture, for example).
School districts also spend money on programs such
as adult education, community colleges, and various
other programs that are not actually a part of public
el-hi education. School districts often have to borrow
money to meet major expenses (such as new school
construction) even after they receive government
funding. Along with the other expenditures, schools
also have to figure in interest expenses as they pay
back long-term debt.
Sources of Funding
Before reading about federal, state, and local
funding, it is important to remember that each state
has a different breakdown of funds, based on such
factors as how much federal funding it gets. The per-
centages below are average figures for the 50 states
and U. S. territories. Using the 1998-99 figures listed
above, some states get more in federal funding (in
Mississippi the figure was 14 percent), while others
got significantly less (in New Jersey the number was
3.7 percent). Likewise, state contributions can vary
significantly. In Vermont, 74.4 percent of school
funding came from the state, while in New Hamp-
shire only 8.9 percent came from state funding.
Much of these rates are based on the types of pro-
grams that exist within each state or the internal tax
structure. A state that has more federal education
programs for children may end up with a higher per-
centage of federal funds overall. In general, the
breakdowns tend to work. That said, whenever one
source cuts back, it has an effect on the other
sources. If, for example, the federal government
were to decrease its educational contribution across
the board by two percent, that would mean states
and local communities would have to make up the
shortfall. If either of those sources made cutbacks,
the remaining source would feel more pressure to
contribute more. If the necessary funding was simply
not there, the result would either be higher taxes or
reduced services.
Federal Revenues
The federal government contributes money to
schools directly and indirectly. Part of this funding
comes from the U. S. Department of Education, but
other agencies contribute as well. The U. S. Depart-
ment of Health and Human Services, for example,
contributes to education through its Head Start pro-
gram, while the U. S. Department of Agriculture
funds the School Lunch program for students who
cannot afford to pay for their own lunches. Even with
these added contributions, the federal government
accounts for less than 10 percent of school revenues.
Using its own words, the Department of Education
has long seen its role as ‘‘a kind of emergency re-
sponse system’’ that fills gaps when state and local
sources are inadequate to meet key needs. (For ex-
ample, the 1944 GI BILL, a post-secondary program
rather than el-hi program, helps fund college educa-
tions for nearly eight million World War II veterans.)
The Education Department’s measures are not al-
ways merely stop-gap. During and after World War II
Congress passed the LANHAM ACT (1941) and the Im-
pact Aid laws (1950) to compensate school districts
that housed military and other nontaxable federal in-
stallations. Today, the federal government continues
to compensate communities that house such institu-
tions. Moreover, Title I of the Elementary and Sec-
ondary Education Act of 1965 guaranteed aid to dis-
advantaged children in poor urban and rural
communities. The Higher Education Act, passed the
same year, provided financial aid programs to help
qualifying students meet college expenses.
State Funding
The states provide most of the funding that keeps
public el-hi schools running in the U.S. For the aca-
demic year 1998-99, state sources accounted for 48.7
percent of total school revenues. The states raise this
money through a variety of means including various
taxes. Some states raise money for education
through state-sponsored lottery games. Doing so is
somewhat controversial because, while the schools
may benefit from the added revenue, some see the
lottery as nothing more than state-sponsored gam-
bling, a potentially addictive activity that particularly
affects poorer individuals.
EDUCATION—FINANCE/FUNDING
484 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Each state has an Education Department that
oversees state programs (such as state university sys-
tems) as well as individual school districts. In some
states a governing body, such as the Board of Re-
gents in New York, plays a significant role. The New
York Board of Regents provides a series of examina-
tions for students to establish proficiency in various
subjects based on established state standards. Many
students in New York receive a Regents diploma as
well as their regular school diploma when they grad-
uate high school.
State funding for education can cause huge dis-
agreements among communities with the state. The
question state governments face constantly is how to
distribute the revenues evenly to ensure that each
school district gets its fair share. New York and Penn-
sylvania offer two examples of how state funds can
be fought over. New York City holds nearly half the
population of the state, yet it receives proportionally
less per student from the state government than
other districts in New York. Residents of upstate New
York have little desire to see their state tax dollars
sent to New York City schools, which they see as too
bureaucratic and wasteful. Residents of central Penn-
sylvania feel the same about education expenditures
in Philadelphia and Pittsburgh.
Urban and rural areas have separate needs and
challenges. A large city may have an established infra-
structure that allows its school officials to approach
private companies for assistance. A local computer
company may donate computer equipment to the
city schools, for example. Yet city schools are often
decrepit (many school buildings in New York City are
heated by coal furnaces), classes are crowded, and
teacher turnover is high. In rural areas, classes are
unlikely to be overcrowded, and teachers may stay
longer in one place. But having fewer students can
also mean having access to fewer resources, and
there may not be enough students in a given district
to justify the expense of, for example, a special edu-
cation program for developmentally disabled chil-
dren.
Local Funding
Local sources make up nearly as much revenue as
state sources. Local sources includes intermediate
revenues from county or township governments, but
the bulk of local funding comes from individual com-
munity school districts. Some of the local revenues
come from sources such as revenues from student
activities and food services. Most of the money
comes from property taxes, which are raised to cover
all community services as well as education. All
homeowners pay taxes based on a local ASSESSMENT
of their houses. Local school budgets are mapped
out by elected officials, including mayors and council
members, as well as the local board of education.
Residents are able to vote on local school budgets in
regularly scheduled elections.
Funding schools with local dollars has benefits
and drawbacks. The primary benefit of local funding
is accountability. Taxpayers can see exactly how their
money is being spent. They can see the new cafeteria
at the high school, the new science lab equipment,
the new textbooks. The local elected officials who
submit school budgets to the voters know that if they
fail to keep the promises they make, those same vot-
ers will remove them from office in the next election.
Members of the community also have more say in
how local dollars are spent. Those who have children
in the school system will be particularly interested in
how tax dollars are spent. Some of them may be-
come quite active in school affairs by participating in
the Parents Teachers Association (PTA) or on the
local board of education.
This arrangement can be a drawback to local fund-
ing as well as a benefit. Because members of the
community know they have a say in the school bud-
getary process, they may be more likely to examine
each expenditure carefully. This scrutiny is not the
problem. What creates difficulties is when local resi-
dents perceive expenses as unnecessary. Those who
no longer have children in the school system may be
reluctant to see their property taxes increase for pro-
grams that will bring them little if any benefit. Senior
citizens likewise may be reluctant to support tax in-
creases (even though in many communities they get
a property tax break). People who feel that teacher
salaries are already too high or that the old gym is
perfectly fine for the students or that new instru-
ments for the marching band are an extravagance,
may vote down any school budget increases.
Local elected officials need to be able to show
community residents the positive side of spending
more money on the schools. Better-equipped
schools attract better teachers. Better teachers pre-
pare students better, and more students achieve suc-
cess. This improvement in turn means more young
families, since for young families the quality of the
schools is the most important factor when they
choose a place to live. As the community becomes
more attractive to outsiders, property values will go
up; often the rise in value far more than offsets the
EDUCATION—FINANCE/FUNDING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 485
extra cost incurred by taxes. Of course, higher prop-
erty values may also mean higher tax assessments, so
for the homeowner who has no children and who
has no plans to move, the process of increased val-
ues may feel like a personal financial burden rather
than tax dollars at work. For these and other reasons
local funding is more complex than it would appear
to be.
Sources of Information
The federal government offers a number of
sources of revenue information through the U. S. De-
partment of Education (which oversees NCES), and
other sources. Each state has its own education de-
partment, which can provide information about state
education funding. Because education is such a criti-
cal issue to so many people, elected officials are a
good source of statistical information on school reve-
nues. Local government sources and boards of edu-
cation are useful resources for information about
local funding. Most public libraries compile informa-
tion about local school revenue issues as well.
Additional Resources
Funding Sources for K-12 Schools and Adult Basic Educa-
tion. Oryx Press, 1998.
Goals 2000: A Progress Report. U. S. Department of Educa-
tion, 1995.
Organizations
National Center for Education Statistics
(NCES)
1990 K Street, NW, Room 9103
Washington, DC 20006 USA
Phone: (202) 502-7350
Fax: (202) 502-7475
URL: http://www.nces.ed.gov
Primary Contact: Gary W. Phillips, Acting
Commissioner
National Education Association (NEA)
1201 16th Street, NW
Washington, DC 20036 USA
Phone: (202) 833-4000
Fax: (202) 822-7170
URL: http://www.nea.org
Primary Contact: Robert F. Chase, President
National School Boards Association (NSBA)
1680 Duke Street
Alexandria, VA 22314 USA
Phone: (703) 838-67220
Fax: (703) 683-7590
URL: http://www.nsba.org
Primary Contact: Anne L. Bryant, Executive
Director
EDUCATION—FINANCE/FUNDING
486 GALE ENCYCLOPEDIA OF EVERYDAY LAW
EDUCATION
SCHOOL PRAYER/PLEDGE OF
ALLEGIANCE
Sections within this essay:
• Background
• School Prayer
- Constitutional basis for ban
- Types of Prayer Banned
- Permissible private prayer and secu-
lar study of religion
- Permissible ‘‘Minute of Silence’’
- Congressional Action
• Limits on Pledge of Allegiance
• State and Local Laws
• Additional Resources
Background
Prayer and the pledge of allegiance in public
schools remain controversial legal issues. Since the
mid-twentieth century, the federal courts have
placed limits upon state power to require or even
permit these popular cultural practices. Two land-
mark Supreme Court decisions in the 1960s banned
prayer in public school, and subsequent decisions
have mostly strengthened the ban. By comparison,
the courts have held since the 1940s that the pledge
of allegiance is permissible, provided that it is volun-
tary. Massive public dissatisfaction with these con-
straints is ongoing.
Prayer was a common practice in colonial Ameri-
can schools, which were often merely offshoots of a
local Protestant church. Along with Bible study, this
tradition continued after U. S. independence and
flourished well into the nineteenth century. But his-
torical forces changed education. As IMMIGRATION
multiplied the ethnic and religious identities of
Americans, modernization efforts led by education
reformers like Horace Mann gradually minimized re-
ligious influences in schools. Although this secular
reform swept cities, where diverse populations often
disagreed on what religious practice to follow in
schools, much of the United States retained school
prayer.
As the twentieth century brought legal conflicts,
the stage was set for even more far-reaching changes.
From 1910 onward, lawsuits challenged mandatory
Bible reading in public schools on the ground that
students should not be forced to practice a faith
other than their own. By the mid-century, social and
religious tensions had pushed LITIGATION through
the federal courts. Subsequently, the Supreme Court
ruled repeatedly that school prayer, Bible reading,
and related religious practices are violations of the
First Amendment. The decisions stand as critical
modern mileposts in the contest between federalism
and states’ rights:
• The Supreme Court first ruled against public
school prayer in the 1962 case of Engle v. Vi-
tale. The decision struck down a New York
State law that required public schools to
begin the school day either with Bible read-
ing or recitation of a specially-written, non-
denominational prayer.
• One year later, in Engle v. Vitale (1963), the
Supreme Court struck down voluntary Bible
readings and recitation of the Lord’s Prayer
in public schools.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 487
• In 1980, in Stone v. Graham, the Supreme
Court ruled against a Kentucky law that re-
quired the posting of the Ten Command-
ments in all public school classrooms.
• In 1981, the Supreme Court ruled in Widmar
v. Vincent that a state university could not
prohibit a religious group from using facili-
ties that were made open for use by organi-
zations of all other kinds. Congress respond-
ed three years later with the Equal Access
Act, guaranteeing religious student groups
the same rights of access to school facilities
as other student groups.
• In the 1980s and 1990s, some states enacted
so-called ‘‘moment of silence’’ or ‘‘minute of
silence’’ laws with the intent of allowing stu-
dents to conduct private prayer or spiritual
reflection in the classroom. Although the Su-
preme Court found an early Alabama law un-
constitutional in Wallace v. Jaffrey (1985),
subsequent laws have generally survived
legal challenges.
• In 1992, in Lee v. Weisman, the Supreme
Court ruled that school officials violated the
First Amendment by inviting clergy to give
an invocation and a benediction at a public
high school graduation.
• In Santa Fe Independent School District v.
Doe (2000), the Supreme Court ruled
against a Texas school district policy of facili-
tating prayers over the public address sys-
tem at football games and holding popular
elections to choose the student selected to
deliver the prayer.
The Pledge of Allegiance is one of the nation’s most
honored secular symbols, viewed by many in the
same light as the National Anthem. Written in 1892
by the socialist Francis Bellamy, the Pledge of Alle-
giance first appeared in a national family magazine,
Youths’ Companion, and later was modified by Con-
gress and President Dwight D. Eisenhower in 1954
to include a reference to God. Many public schools
featured the pledge as part of the school day
throughout the mid-twentieth century.
Legal controversy in public schools grew out of a
dispute over religious freedom. In the 1930s, West
Virginia mandated compulsory saluting of the flag
and recitation of the pledge. After members of Jeho-
vah’s Witnesses objected on religious grounds, stu-
dents were expelled from school. The Supreme
Court first upheld the state law but reversed itself
three years later in West Virginia State Board of Edu-
cation v. Barnette (1943). The court held that
schools may not coerce or force students into recit-
ing the pledge, observing the existence of an individ-
ual right of conscience to sit silently while others re-
cited. Most schools responded by making the pledge
voluntary.
Much less than the prayer controversy, contem-
porary legal challenges involving the pledge have
been sporadic. Yet they are still passionate. High-
profile cases in the late 1990s involved lawsuits
against schools that instituted mandatory require-
ments and punished students who did not comply.
Interest in the issue intensified again in 2001 follow-
ing terrorist attacks upon the United States, which
prompted states and school districts to revive long-
dormant laws requiring students to recite the pledge.
School Prayer
Constitutional Basis for Ban
Since 1962, the Supreme Court’s rejection of
school prayer has rested upon its interpretation of
the First Amendment. That interpretation has hardly
varied, even in the face of public outrage, political
opposition, and scholarly criticism. The court’s deci-
sions have remained largely consistent across several
cases for four decades.
As one of the constitution’s most powerful and
sweeping guarantees of freedom, the First Amend-
ment is generally thought to contain two contrasting
principles with respect to religion. These are an-
nounced in the opening words of the amendment,
which contains two clauses: ‘‘Congress shall make no
law respecting an establishment of religion, or pro-
hibiting the free exercise thereof.’’ In constitutional
law, the first clause is referred to as the Establish-
ment Clause, and the second as the Free Exercise
Clause.
Broadly general in their language, the two clauses
say nothing more—and neither does the Constitu-
tion itself—about how to apply them. Thus their
practical meaning is chiefly known through the ways
courts interpret them in individual cases. Under the
Establishment Clause, courts have generally held
that government is forbidden to enact laws aiding
any religion or creating an official religion. Under the
Free Exercise Clause, courts have usually held that
government is also forbidden to interfere with an in-
dividual’s free exercise of religion, including the
areas of belief, practice, and propagation.
EDUCATION—SCHOOL PRAYER/PLEDGE OF ALLEGIANCE
488 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Both principles require a position of government
neutrality toward religion but of a different and
seemingly contradictory kind. In practice, the two
principles easily overlap. Advocates of school prayer
have long argued that banning the practice is a viola-
tion of religious freedom guaranteed by the Free Ex-
ercise Clause. Opponents have argued that the rights
to free exercise are outweighed by the prohibition
laid out in the Establishment Clause. How the ten-
sion between these principles is resolved lies at the
heart of the school prayer ban.
In school prayer cases, the Supreme Court has re-
peatedly given the Establishment Clause prece-
dence. From the earliest case, Engel v. Vitale, which
the Court reaffirmed in 1992, it has held that public
school prayer is ‘‘wholly inconsistent’’ with the Es-
tablishment Clause. The majority opinion went out
of its way to stress that the Court did not oppose reli-
gion itself. Instead, the opinion stated that ‘‘each
separate government in this country should stay out
of the business of writing or sanctioning official
prayers and leave that purely religious function to
the people themselves and to those the people
choose to look to for religious guidance.’’
Types of Prayer Banned
To date, the Supreme Court has never sanctioned
any form of prayer spoken aloud in classrooms under
the direction of officials in public schools. In a variety
of decisions, it has repeatedly held or affirmed lower
court rulings that several types of prayer are uncon-
stitutional:
• Voluntary
• Mandatory
• Sectarian, as in the Lord’s Prayer
• Non-sectarian or non-denominational, as in
the state-authored prayer at issue in Engel v.
Vitale
• Teacher or student-led classroom prayer
• Invocations or benedictions
From the start, these decisions have shown no tol-
erance for attempts to tailor prayers to make them
more acceptable to a majority of citizens. In fact, the
very first prayer case arose after the State of New
York commissioned the writing of an original twenty-
two word prayer that it determined would cover a
broad spectrum of religious belief; the prayer was ap-
proved by Protestant, Catholic, and Jewish leaders
who stated their goal was to avoid causing sectarian
disputes. Yet the Supreme Court ruled that the
prayer’s non-denominational nature gave it no con-
stitutional protection.
On Establishment Clause grounds similar to the
prayer ban, the Supreme Court has also struck down
related activities and practices involving religious
worship in schools:
• Religious invocations at graduation ceremo-
nies
• Prayers read by religious representatives
• Student-led prayers at assemblies and sport-
ing events
• Posting of the Ten Commandments in
schools
Permissible Private Prayer and Secular
Study of Religion
Although the prayer ban has proven largely com-
prehensive, the Supreme Court has not banned reli-
gion from schools. Instead, it has held that context
is critical in determining what is permissible and im-
permissible.
The Supreme Court has never banned students
from praying voluntarily and privately on their own,
provided there is no state intervention. Students sim-
ply must do so without the guidance or COERCION of
school authorities. Religious student groups may
meet after school like other student clubs, as guaran-
teed by the federal Equal Access Act, and pray on
their own.
Study of religion is also constitutionally permitted.
Even in its earliest prayer cases, the Supreme Court
noted that schools were free to discuss religion with-
in the context of a secular course of instruction, such
as, for instance, a history course.
Between 1971 and 1990 the Supreme Court used
a three-part test to determine whether state pro-
grams involving religion were permitted under the
Establishment Clause. Following the standard first
announced in Lemon v. Kurtzman (1971), the Court
upheld a challenged religious program if it met all
three conditions:
• It has a secular purpose
• It has a primary effect that neither advances
nor inhibits religion
• It does not excessively entangle government
with religion
This test began losing validity in the 1990s as the Su-
preme Court refused to apply it. Shifts in the court’s
EDUCATION—SCHOOL PRAYER/PLEDGE OF ALLEGIANCE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 489
analytical approach did not signal a reversal on doc-
trine, however; in fact, in 1992, the majority upheld
its original school prayer ruling of thirty years earlier,
and subsequent decisions extended the ban to
prayers at public school events. By 2001, the test for
compliance with the Establishment Clause generally
required that a school policy demonstrate a secular
purpose that neither advances nor inhibits religion
in its principal effect. Courts continued to carefully
scrutinize such policies to see that they did not en-
dorse, show favoritism toward, or promote religious
ideas.
Permissible ‘‘Minute of Silence’’
During the 1980s, school prayer advocates were
in search of new approaches that might prove consti-
tutional. The so-called moment of silence has proven
the most successful strategy, despite an early setback
in which Alabama’s requirement that school children
be required to observe a moment of silence each day
was held unconstitutional by the Supreme Court in
Wallace v. Jaffrey (1985).
However, states subsequently crafted laws that
did survive constitutional review. One example is Vir-
ginia’s minute of silence law, which requires children
to begin the school day with a minute to ‘‘meditate,
pray or engage in silent activity.’’ In July 2001, a panel
of the 4th U. S. Circuit Court of Appeals upheld the
constitutionality of the law, noting that it ‘‘intro-
duced at most a minor and nonintrusive accommo-
dation of religion’’ and, because it allowed any type
of silent reflection, served both religious and secular
interests. The U. S. Supreme Court declined to hear
an appeal in the case, thus upholding Virginia’s law.
Legal observers predicted the law’s success would
lead to more such legislation in other states; as many
as 18 states already permit moments of silence under
law.
Congressional Action
Responding to public demand for school prayer,
federal lawmakers have occasionally sought a reme-
dy of their own. Few advocates of school prayer be-
lieve legislation can survive JUDICIAL REVIEW. Thus,
the chief proposal to enjoy perennial favor is the idea
of a CONSTITUTIONAL AMENDMENT.
Following the first 1962 prayer ruling, lawmakers
flooded Congress with such proposals but never
passed any. Attempts were revived over the decades,
with the most serious coming in the late 1990s. But
constitutional amendments face difficult legal hur-
dles. Even before a proposed amendment can be
sent for a state-by-state vote on RATIFICATION, it must
pass by a two-thirds majority in the House of Repre-
sentatives. Historically, lawmakers are significantly
reluctant to tamper with the Constitution. Thus in
June 1998, House members voted 224 to 203 in favor
of a school prayer amendment, but that simple ma-
jority fell far short of the two-thirds majority needed
for approval.
Another Congressional effort has borne some suc-
cess for school prayer advocates. In 1984, with strong
backing from conservative religious groups, Con-
gress passed and President Ronald Reagan signed
the Equal Access Act. The law requires any federally-
funded public secondary school to allow all school
clubs, including religious organizations, equal access
to facilities. As representatives of the state, teachers
and officials are instructed not to encourage or solicit
participation in these activities.
Limits on Pledge of Allegiance
In West Virginia State Board of Education v. Bar-
nette, the Supreme Court ruled that requiring the
Pledge of Allegiance in public schools violated the
First and Fourteenth Amendments. The case grew
out of West Virginia’s passage of legislation requiring
the pledge and flag-saluting. Lawmakers had intend-
ed them to be part of instruction on civics, history,
and the Constitution, and they defined non-
compliance as insubordination that was punishable
by expulsion from school. Parents of expelled stu-
dents were also subject to fines. After Jehovah’s Wit-
nesses students were expelled, their parents brought
suit contending that the law infringed upon their reli-
gious beliefs, which they said required them not to
engage in these secular practices.
The Supreme Court found two constitutional vio-
lations. The state law violated the Fourteenth
Amendment’s requirement of due process and the
First Amendment’s requirements of religious free-
dom and free speech upon the state. At heart, said
the Court, were the principles of freedom of thought
and government by consent. Critically, the majority
observed a right of individuals to be free from official
pressure to state a particular opinion, including that
they honor their government. The opinion declared
that ‘‘no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or
other matters of opinion or force citizens to confess
by word or act their faith therein.’’
The decision’s practical effect is to permit volun-
tary recitation of the Pledge of Allegiance but to for-
EDUCATION—SCHOOL PRAYER/PLEDGE OF ALLEGIANCE
490 GALE ENCYCLOPEDIA OF EVERYDAY LAW
bid mandatory requirements that students partici-
pate. The decision itself has not been challenged in
court, but its requirements have not always been ob-
served. In the 1990s, the American Civil Liberties
Union (ACLU) repeatedly defended students in
school districts who suffered reprisals for failing to
participate in the Pledge of Allegiance. In 1998, for
instance, the ACLU filed a federal lawsuit against the
Fallbrook Union High School District of San Diego,
California, after school officials required a dissenting
student to stand silently during the pledge, leave the
classroom, or face detention; settling the case out of
court, the school district agreed to change its policy.
Although not officially required, presidents have
traditionally led students in an annual nationwide
Pledge of Allegiance. Schools may choose to partici-
pate, as many did when U. S. Secretary of Education
Rod Paige urged participation in October 2001 fol-
lowing terrorist attacks upon the United States.
State and Local Laws
Despite many Supreme Court rulings against pub-
lic school prayer, the legal picture in states is far from
uniform. In some states and cities, politicians and
school officials have simply ignored the Court’s
prayer decisions. Some school districts continue to
allow classroom prayer in the absence of any direct
legal challenge. Still others invite litigation, seeing in
each lawsuit an opportunity to press the judiciary to
reconsider the four-decade-old ban. Thus while fed-
eral judicial decisions may say one thing, the practi-
cal reality is widely acknowledged to be another: on-
going litigation, for years, has been the norm, with
school prayer lawsuits frequently seeing national
legal organizations representing both sides in what
originate as local disputes.
The situation for the Pledge of Allegiance in public
schools is also mixed. Most states, in fact, still have
decades-old laws relating to the pledge. Thirty-two
states mention some form of school participation in
their laws, while twenty states require students to re-
cite it. Enforcement of the laws was irregular or non-
existent; however, as the Christian Science Monitor
observed in March 2001. Following the September
11, 2001, terrorist attacks upon the United States,
however, outpourings of patriotism and strong re-
newed interest in having students recite the pledge
pushed the issue back to the forefront, with some
governments declaring they would use old laws and
others vowing to pass new ones.
In 2001, states and cities with laws, policies, and
practices under legal challenge, or which enacted
new legislation, included the following:
ALABAMA: For over a quarter century, lawsuits have
been fought over the state’s school prayer laws. Con-
temporary battles date to 1992, when the Supreme
Court struck a law mandating prayers led by clergy
at public school graduation ceremonies. In response,
state lawmakers passed the ‘‘Student-Initiated Prayer
Law’’ requiring schools to allow students to initiate
prayer at sporting events, assemblies, and gradua-
tions. That law has been contested ever since, with
seesawing victories for both sides. In 1997, a district
court judge ruled the law unconstitutional and is-
sued a broad injunction against it. Amidst high ten-
sions, Governor James Fob vowed to use the state
national guard to protect school prayer. Then in
1999, the law’s supporters won on appeal to the Elev-
enth Circuit. In 2000, the Supreme Court vacated the
Eleventh Circuit and sent the case back to it for fur-
ther EXAMINATION, essentially restoring the force of
the district court injunction. The case is still being
contested.
ILLINOIS: In May of 2001, a U. S. district court or-
dered the Washington Community High School in
Chicago not to use school-sanctioned prayers at a
graduation ceremony. The order came in response
to a lawsuit by the ACLU filed on behalf of the
school’s valedictorian and her parents.
FLORIDA: Since the early 1990s, lawsuits have con-
tested the policy of the Jacksonville public school
board to allow prayer at graduation ceremonies. In
1998, students and parents in the Duval County Pub-
lic School District successfully sued to block the
practice. The full Eleventh Circuit, however, declared
that student-led prayers at graduation are constitu-
tional. In 2000, the Supreme Court vacated the deci-
sion and sent it back to the appeals court for recon-
sideration.
NEBRASKA: In November of 2001, the Board of Edu-
cation voted to require that schools follow the state’s
1949 patriotism law. The law mandates that schools
teach the lyrics to ‘‘The Star-Spangled Banner’’ and
other patriotic songs, teach reverence for the flag,
and discuss the dangers of communism.
NEW YORK CITY: In October of 2001, the New York
City Board of Education adopted a resolution requir-
ing all public schools to begin the school day, as well
as all assemblies and events, with the Pledge of Alle-
giance.
EDUCATION—SCHOOL PRAYER/PLEDGE OF ALLEGIANCE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 491
VIRGINIA: The state requires public schools to begin
each day with a minute of silence to be used by stu-
dents for meditation or prayer, under a law upheld
in July 2001 by a panel of the 4th U. S. Circuit Court
of Appeals and declined review by the Supreme
Court. The decision is binding only in Virginia, Mary-
land, West Virginia and the Carolinas. Beginning with
the 2001 fall school year, Virginia state law also re-
quires public schools to teach and start each day with
the pledge; participation is optional.
WISCONSIN: Under a law effective September 1,
2001, the state requires schools in grades 1-12 to
allow students to voluntarily recite the Pledge of Alle-
giance or sign the national anthem. The law states
that children cannot be forced to participate. In the
state capital of Madison, national controversy fol-
lowed a late September decision by the city’s school
board to allow local schools only to use an instru-
mental version of the national anthem and barred
them from using the pledge. In response to public
outcry, the board rescinded the rule, thus imple-
menting the state law.
Additional Resources
A Call for Mandatory Pledge in Schools. Rein, Lisa, The
Washington Post, January 25, 2001.
Constitutional Amendments: 1789 to the Present. Gale
Group, Inc., 2000.
Fighting the Establishment (Clause). Bradley, Jennifer,
The American Prospect, September 1, 1996. Available
at: http://www.prospect.org/print/V7/28/bradley-j.html
Religion in the Public Schools: A Joint Statement of Cur-
rent Law. The American Civil Liberties Union, 1996.
Available at: http://aclu.org/issues/religion/relig7.html
West Encyclopedia of American Law. West Group, 1998.
Organizations
American Civil Liberties Union (ACLU)
125 Broad Street, 18th Floor
New York, NY 10004 USA
Phone: (212) 549-2500
URL: http://www.aclu.org
Primary Contact: Nadine Strossen, President
American Family Association
P.O. Box 2440
Tupelo, MS 38803 USA
Phone: (662) 844-5036
Fax: (662) 842-7798
URL: http://www.afa.net
Primary Contact: Donald E. Wildmon, President
Americans United for Separation of Church
and State
518 C Street, NE
Washington, DC 20002 USA
Phone: (202) 466-3234
Fax: (202) 466-2587
URL: http://www.au.org
Primary Contact: Barry Lynn, Executive Director
Eagle Forum
316 Pennsylvania Avenue, Ste. 203
Washington, DC 20003 USA
Phone: (202) 544-0353
Fax: (202) 547-6996
URL: http://www.eagleforum.org
Primary Contact: Lori Cole, Executive Director
EDUCATION—SCHOOL PRAYER/PLEDGE OF ALLEGIANCE
492 GALE ENCYCLOPEDIA OF EVERYDAY LAW
EDUCATION
SPECIAL EDUCATION/DISABILITY
ACCESS
Sections within this essay:
• Background
• Individuals with Disabilities Education Act
- Free and Appropriate Public Educa-
tion
- State Educational Agencies
- Local Educational Agencies
- Individualized Education Programs
- Parental Involvement
• Additional Legislation Protecting Children
with Disabilities
- Section 504 of the Rehabilitation Act
of 1973
- Americans with Disabilities Act
• Definition of Disability and Eligibility for
Special Education Services
• Placement of Children with Disabilities
• Procedures for Alleging Violations of Stat-
utes Protecting Disabled Children
• State Provisions Regarding Special Educa-
tion and Disability Access
• Additional Resources
Background
Students with mental and physical disabilities in
the United States were historically segregated from
other students in most educational systems. While
special programs were modified to provide different
types of training for disabled children, these children
were ordinarily separated from the mainstream stu-
dents, not only to protect the children in special edu-
cation but also to avoid disruption among other stu-
dents without disabilities. The majority of disabled
children did not attend school at all.
The move toward the recognition of rights for dis-
abled students began with the famous 1954 case,
Brown v. Board of Education, which established
that ‘‘separate but equal’’ accommodations in educa-
tion were not, in fact, equal. As other CIVIL RIGHTS
movements gained momentum throughout the
1960s, proponents for rights of disabled individuals
also began to assert the rights of these individuals.
Two landmark federal district court decisions in 1971
and 1972, PARC v. Pennsylvania and Mills v. Board
of Education, established that denying education to
children with disabilities and denying the proper
procedures in such cases violated protections under
the Fourteenth Amendment to the United States
Constitution. A number of other cases since then
have further established rights of disabled children.
A number of federal statutes have formed the
basis for guaranteeing rights of disabled children
since the mid-1970s. The following is a summary of
these statutes:
• Rehabilitation Act of 1973: This act estab-
lished that those who receive federal finan-
cial assistance cannot discriminate on the
basis of a DISABILITY.
• Education for All Handicapped Children Act
(EAHCA): Passed in 1975, this act provided
support to state special education programs
to provide free appropriate public education
to disabled children.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 493
• Perkins Act: Passed in 1984, this act required
that ten percent of federal funding for voca-
tional education must support the educa-
tion of disabled students.
• Handicapped Children’s Protection Act of
1986: This act amended the EAHCA to pro-
vide attorney’s fees and costs to be awarded
to parents who prevailed in an EAHCA case.
• Education to the Handicapped Act Amend-
ments of 1986: These acts added early inter-
vention services for three- to five-year-olds,
with incentive programs for younger chil-
dren with disabilities.
• Individuals with Disabilities Education Act
(IDEA): Passed in 1990, this act amended the
EAHCA by modifying a number of the provi-
sions in the original STATUTE.
• Americans with Disabilities Act (ADA):
Passed in 1990, this major piece of legisla-
tion set forth broad prohibitions against
DISCRIMINATION of disabled individuals by
most employers, public agencies, and those
who provide public accommodations. Two
titles in the Act apply specifically to schools.
Individuals with Disabilities Education
Act
The Individuals with Disabilities Education Act
(IDEA) is primarily a funding statute. It requires that
each state educational authority develop a policy that
ensures free appropriate public education is being
provided to all children with disabilities by local
agencies. The amount of funding is determined on
a state-by-state basis by the number of disabled chil-
dren between the ages of three and 21 who are re-
ceiving special education and/or other related ser-
vices. At the center of IDEA is a requirement that a
local educational agency develop on at least an annu-
al basis an individualize education program for each
disabled child. This plan states the current educa-
tional status of the child and sets forth goals and ob-
jectives for the child to meet. Room for parental con-
sent or involvement is provided at each step in the
child’s education.
Free and Appropriate Public Education
IDEA defines free appropriate public education as
special education and related services that are pro-
vided at public expense, under public supervision
and direction. Free appropriate public education
must also meet standards set forth by state educa-
tional agencies; must include appropriate education
at the preschool, elementary, and secondary levels;
and must be provided in conformity with individual-
ized education programs required under IDEA.
State Educational Agencies
IDEA shifts responsibility for ensuring that educa-
tional programs are in compliance with the provi-
sions of IDEA to state education agencies. These
agencies are required to promulgate a complaint
procedure that provides the following services:
• Receive and resolve complaints against state
or local education agencies
• Review appeals from decisions regarding a
local education agency complaint
• Conduct independent on-site investigations
• Set forth a 60-day time limit to investigate
and resolve complaints
• Allow time extensions only in exceptional
circumstances
• Review relevant information and issue writ-
ten decisions
• Provide an enforcement mechanism
Local Educational Agencies
As the primary entity required to develop individ-
ualized educational programs for each disabled child
in a particular locality, local educational agencies are
at the center of the provision of IDEA. Residency of
each child is the primary consideration for determin-
ing which local educational agency has responsibility
for developing these educational programs. In some
cases, determining the appropriate local agency can
become difficult, particularly if the child’s parents
live in different districts. Many states have included
provisions providing that the child’s residency is that
of the parent.
Individualized Education Programs
Local educational agencies must include a num-
ber of components in each individualized education
program for each disabled child in its district. Among
these components are the following:
• Descriptions of each child’s current educa-
tional status, which describes the disabled
child’s cognitive skills, linguistic ability, emo-
tional behavior, social skills and behavior,
and physical ability
• Details of ‘‘measurable annual goals, includ-
ing benchmarks or short-term objectives’’
EDUCATION—SPECIAL EDUCATION/DISABILITY ACCESS
494 GALE ENCYCLOPEDIA OF EVERYDAY LAW
related to the specific needs of each child,
according to the provisions in IDEA
• Description of the instructional setting or
placement of each disabled child
• Details of developmental, corrective, and
other services designed to facilitate place-
ment in a regular class or designed to allow
disabled children to benefit from special ed-
ucation
• Additional specific statements required by
IDEA, which relate to each child’s progress,
needs, advancement, and goal.
Parental Involvement
Parents are involved in each stage of the develop-
ment of a child’s individualized education program.
Such participation in this process includes the fol-
lowing:
• Parents must approve each stage of the im-
plementation of the individualized educa-
tion program
• Parents participate in initial meetings and
annual meetings reviewing the programs es-
tablished for their children
• Parents and school districts must sign an in-
dividualized education program before each
school year begins
• School districts must redevelop a new pro-
gram for a disabled child at the request of a
parent
• Parents are entitled to request a meeting at
any time regarding the individualize educa-
tion program
Additional Legislation Protecting
Children with Disabilities
Section 504 of the Rehabilitation Act of 1973
Prior to the enactment of the American with Dis-
abilities Act, the statute that provided the most com-
prehensive rights to disabled children other than
IDEA was the Rehabilitation Act of 1973. This act for-
bids any entity that receives federal financial funding
from discriminating on the basis of disability. The act
protects all individuals with physical or mental im-
pairments that substantially limit their major life ac-
tivities and are regarded as having such impairments.
Major life activities under this description include an
individual’s ability to care for himself or herself, per-
formance of manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working. If an enti-
ty, such as a school, violates the provisions of the Re-
habilitation Act, the Department of Education will in-
vestigate. The most likely remedy for these violations
is termination of federal financial assistance to the
entity.
Americans with Disabilities Act
The American with Disabilities Act (ADA), passed
by Congress in 1990, provides many of the same pro-
tections for disabled children as the Rehabilitation
Act of 1973. However, unlike the Rehabilitation Act,
the prohibitions under the ADA are not limited to
those that receive federal financial assistance. The
ADA is applicable in other areas as well where the
provisions of the Rehabilitation Act may not provide
protection. This is particularly true with respect to ar-
chitectural barriers to a building. Part II of the ADA,
which is applicable to public schools, requires acces-
sibility for the entire program. Part III, applicable to
private schools, contains similar provisions.
Definition of Disability and Eligibility for
Special Education Services
All school districts in the United States are re-
quired by law to identify, locate, and evaluate chil-
dren with disabilities. Once this has occurred, school
districts have a duty to evaluate whether the children
are eligible for special education and then begin to
develop individualized education programs for
them. IDEA and the corresponding regulations de-
fine ‘‘children with disabilities’’ as those suffering
from at least one of the following conditions:
• Mental retardation
• Hearing impairment
• Speech or language impairment
• Visual impairment
• Serious emotional disturbance
• Orthopedic impairment
• Autism
• Traumatic brain injury
• Specific learning disability
• Other health impairments
These disabilities must have adverse effects on
disabled children in order for the children to be eligi-
ble for special education and services. The definition
of disability and the application of this definition is
EDUCATION—SPECIAL EDUCATION/DISABILITY ACCESS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 495
broader under other statutes. The Americans with
Disabilities Act, for example, employs a three-part
definition of ‘‘disability.’’ For the ADA to apply to an
individual, the individual’s physical or mental impair-
ment must substantially limit the individual’s major
life activities. This individual must also have a record
of such an impairment and be generally regarded as
having such an impairment. Physical impairment can
include any physiological disorder or condition, cos-
metic disfigurement, or anatomical loss affecting one
or more of several major body systems, as defined by
the statute. Mental impairment may include any
mental or psychological disorder, such as mental re-
tardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities. Since
the definition is broader under the ADA, a child with
a disability may request accommodation under the
ADA, but the same child may not be eligible for spe-
cial education under the provisions of IDEA.
Like the ADA, the provisions of the Rehabilitation
Act of 1973 regarding the definition of disability are
broader than those of IDEA. For example, a child
with Acquired Immune Deficiency Syndrome may
not be eligible for special education under IDEA.
However, the same child may not be discriminated
against on the basis if his or her disease, since AIDS
and other diseases are considered disabilities under
the Rehabilitation Act.
Placement of Children with Disabilities
Placement of children with disabilities under IDEA
occurs after the development of an individualized
education program, described above. Local agencies
must take into account a variety of factors, many of
which are described in relevant regulations concern-
ing the implementation of IDEA. Such consider-
ations include the child’s performance on aptitude
and achievement tests; parental input; recommenda-
tions from teachers; the physical condition of the
child; the social and cultural background of the child;
and the adaptive behavior of the child. If the local
agency fails to provide appropriate placement, the
child’s parent(s) may place the child unilaterally and
seek reimbursement from the agency.
Several requirements under IDEA apply to the
placement of a child. Although placement should be
as close to the child’s home as possible, there is no
absolute requirement that the school selected is the
closest to the child’s home. If the closest school
would not provide what would be considered free
appropriate public education, the agency may select
a more suitable school, even if it is farther away. The
placement must be in the least restrictive environ-
ment, which generally restricts the ability of a school
to segregate children with special education needs.
Only in cases where the disability is so severe that
regular classroom attendance would not be appro-
priate can complete SEGREGATION occur. This provi-
sion is often referred to as a mainstreaming require-
ment.
The placement of a child must be reviewed annu-
ally. If placement is changed, an existing individual-
ized education program must support it, since place-
ment itself is based on the IEP. Parents must be
notified under IDEA requirements, and several states
require that parental consent must be obtained be-
fore a local agency can make a change in placement
for a disabled child.
Procedures for Alleging Violations of
Statutes Protecting Disabled Children
Since IDEA is a funding statute, if a local agency
fails to provide free appropriate public education to
a disabled child, the remedy is that the agency loses
its federal funding. Many parents of disabled chil-
dren, however, seek judicial and other remedies
when they feel the education being provided to their
child is not sufficient. The initial body required
under IDEA and other statutes to hear a complaint
is the state education authority, which must hold an
IMPARTIAL hearing. Specific procedures that must be
followed are set forth in IDEA regulations. Once the
state education authority makes its decision, a parent
may appeal to another state-level agency. Parents
should consult their own state’s laws to determine
which is the appropriate agency for such an appeal.
Judicial bodies, including either a federal or a state
court, may review administrative proceedings. Judi-
cial action may not take place until the parties have
exhausted each of their administrative remedies. The
most typical remedy sought by parents in cases in-
volving special education is injunctive or declaratory
relief, although in some cases, monetary damages
may be appropriate.
Complaints for INFRINGEMENT of the ADA in
schools should be filed with the Department of Edu-
cation. Once administrative remedies have been ex-
hausted, parties may seek JUDICIAL REVIEW. Like the
remedies under IDEA, most parents seek injunctive
or declaratory relief, such as a court order requiring
that a school provide the requested access.
EDUCATION—SPECIAL EDUCATION/DISABILITY ACCESS
496 GALE ENCYCLOPEDIA OF EVERYDAY LAW
State Provisions Regarding Special
Education and Disability Access
Special education and disability access have be-
come controlled primarily by federal STATUTORY
schemes. This is true even though most educational
regulation is governed by state statute. Under IDEA,
if a state or local agency fails to provide the minimum
provisions required by the statute, the state or local
entity may lose federal funding. States may, however,
provide greater protection than is afforded by the
federal statutes.
Parents with disabled children should consult
with the state educational agencies, as well as appli-
cable state laws, to determine what rights their chil-
dren may have in their particular state. The following
is a listing of the appropriate agencies in each state.
ALABAMA: The primary state educational agency is
the Special Education Services division of the Ala-
bama State Department of Education.
ALASKA: The primary state educational agency is the
Alaska Department of Education Special Education
Programs.
ARKANSAS: The primary state educational agency is
the Special Education Section of the Arkansas De-
partment of Education.
CALIFORNIA: The primary state educational agency
is the Special Education Division of the California De-
partment of Education.
COLORADO: The primary state educational agency
is the Special Education Services Unit of the Colora-
do Department of Education.
CONNECTICUT: The primary state educational agen-
cy is the Bureau of Special Education and Pupil Ser-
vices of the Connecticut Department of Education.
DELAWARE: The primary state educational agency is
the Exceptional Children Department of the Dela-
ware Department of Education.
FLORIDA: The primary state educational agency is
the Education for Exceptional Students Department
of the Florida Department of Education.
GEORGIA: The primary state educational agency is
the Division of Exceptional Students of the Georgia
Department of Education.
HAWAII: The primary state educational agency is the
Special Education Section of the Department of Edu-
cation.
IDAHO: The primary state educational agency is the
Bureau of Special Education of the Idaho State De-
partment of Education.
ILLINOIS: The primary state educational agency is
the Special Education Department of the Illinois
State Board of Education.
INDIANA: The primary state educational agency is
the Division of Special Education of the Department
of Education.
IOWA: The primary state education agency is the Bu-
reau of Children Family and Community Services of
the Department of Education.
KANSAS: The primary state educational agency is the
Student Support Services of the Kansas State Depart-
ment of Education.
KENTUCKY: The primary state educational agency is
the Office of Special Instructional Services of the
Kentucky Department of Education.
LOUISIANA: The primary state educational agency is
the Division of Special Populations of the Louisiana
Department of Education.
MAINE: The primary state educational agency is the
Special Education Department of the Maine Depart-
ment of Education.
MARYLAND: The primary state educational agency is
the Division of Special Education of the Maryland
State Department of Education.
MASSACHUSETTS: The primary state educational
agency is the Special Education Programs division of
the Massachusetts State Department of Education.
MICHIGAN: The primary state educational agency is
the Office of Special Education and Early Interven-
tion Services.
MINNESOTA: The primary state educational agency
is the Office of Special Education of the Minnesota
Department of Children, Families, and Learning.
MISSISSIPPI: The primary state educational agency is
the Office of Special Education of the Mississippi
State Department of Education.
MISSOURI: The primary state educational agency is
the Division of Special Education of the Missouri
State Department of Education.
MONTANA: The primary state educational agency is
the Special Education Division of the Montana Office
of Public Instruction.
EDUCATION—SPECIAL EDUCATION/DISABILITY ACCESS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 497
NEBRASKA: The primary state educational agency is
the Special Populations Office of the Nebraska De-
partment of Education.
NEVADA: The primary state educational agency is
the Division of Special Education of the Nevada De-
partment of Education.
NEW HAMPSHIRE: The primary state educational
agency is the Bureau of Special Education of the New
Hampshire Department of Education.
NEW JERSEY: The primary state educational agency
is the Office of Specialized Populations of the New
Jersey State Department of Education.
NEW MEXICO: The primary state educational agency
is the Special Education Office of the State of Mexico
Department of Education.
NEW YORK: The primary state educational agency is
the Vocational and Educational Services for Individu-
als with Disabilities of the New York State Education
Department.
NORTH CAROLINA: The primary state educational
agency is the Special Education Division of the North
Carolina Department of Public Instruction.
NORTH DAKOTA: The primary state educational
agency is the Director of Special Education of the
North Dakota Department of Public Instruction.
OHIO: The primary state educational agency is the
Special Education Division of the Ohio Department
of Education.
OKLAHOMA: The primary state educational agency
is the Special Education Services Division of the
Oklahoma State Department of Education.
OREGON: The primary state educational agency is
the Office of Special Education of the Oregon De-
partment of Education.
PENNSYLVANIA: The primary state educational agen-
cy is the Bureau of Special Education of the Pennsyl-
vania Department of Education.
RHODE ISLAND: The primary state educational
agency is the Office of Special Needs Services of the
Rhode Island Department of Education.
SOUTH CAROLINA: The primary state educational
agency is the Office of Special Education of the South
Carolina Department of Education.
SOUTH DAKOTA: The primary state educational
agency is the Office of Special Education of the Divi-
sion of Education Resources and Services.
TENNESSEE: The primary state educational agency
is the Division of Special Education of the Tennessee
Department of Education.
TEXAS: The primary state educational agency is the
Office for the Education of Special Populations of the
Texas Education Agency.
UTAH: The primary state educational agency is the
At Risk and Special Education Services division of the
Utah State Office of Education.
VERMONT: The primary state educational agency is
the Special Education Division of the Vermont De-
partment of Education.
VIRGINIA: The primary state educational agency is
the Division of Special Programs of the Virginia De-
partment of Education.
WASHINGTON: The primary state educational agen-
cy is the Special Education Section of the Office of
Superintendent of Public Instruction.
WEST VIRGINIA: The primary state educational
agency is the Special Education Division of the West
Virginia Department of Education.
WISCONSIN: The primary state educational agency
is the Division for Learning Support, Equity and Ad-
vocacy of the Department of Public Instruction.
WYOMING: The primary state educational agency is
the Special Education Programs Division of the Wyo-
ming Department of Education.
Additional Resources
The Complete IEP Guide: How to Advocate for Your Spe-
cial Ed Child. Siegel, Lawrence M., Nolo Press, 1999.
Education Law. Rapp, James A., Lexis Publishing, 2001.
Special Education Law. 2nd ed., Guernsey, Thomas F.,
and Kathe Klare, Carolina Academic Press, 2001.
Special Education Law. 3rd ed., Rothstein, Laura F., Addi-
son, Wesley, Longman, Inc., 2000.
U. S. Code, Title 20: Education, Chapter 33, Education of
Individuals with Disabilities. U. S. House of Represen-
tatives, 1999. Available at http://uscode.house.gov/title_
20.htm.
Organizations
The Council for Exceptional Children (CEC)
1110 North Glebe Road
Suite 300
EDUCATION—SPECIAL EDUCATION/DISABILITY ACCESS
498 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Arlington, VA 22201-5704 USA
Phone: (703) 620-3660
Fax: (703) 264-9494
MAX Foundation
P.O. Box 22
Rockville Centre, NY 11571 USA
Phone: (516) 763-4787
E-Mail: Kaleipin@aol.com
U. S. Department of Education, Office of
Special Education Programs
330 ‘‘C’’ Street, S.W., Mary Switzer Building
Washington, DC 20202 USA
Phone: (202) 732-1007
U. S. Department of Education, Office for
Civil Rights
330 Independence Avenue, S.W.
Washington, DC 20201 USA
Phone: (202) 732-1213
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EDUCATION
STUDENT RIGHTS/FREE SPEECH
Sections within this essay:
• Background
• Free Speech Rights in Public Schools
- West Virginia State Board of Educa-
tion v. Barnette
- Tinker v. Des Moines Independent
Community School District
- Bethel School District No. 403 v. Fra-
ser
- Hazelwood School District v. Kuhl-
meier
- Elementary and Secondary Student
Rights Since Hazelwood
• Higher Education Free Speech Issues
- Recognizing Student Groups
- Mandatory Student Fees
- Hate Speech Codes
• Additional Resources
Background
Sixty years ago, when the U. S. Supreme Court de-
cided its first free speech case involving students and
the public schools, the idea that students had any
right to free speech would have been considered
laughable at best, dangerous at worst. At that time,
school was considered a privilege to attend, and
rules or regulations the school sought to enforce
were untouchable. This generalization was collec-
tively true at the elementary, secondary and college
levels of education.
Student rights to free speech did not really be-
come an issue until the Vietnam War, when more
and more students found themselves at opposite
ends of the political spectrum from their teachers
and school administrators. The Supreme Court’s
1969 decision in Tinker v. Des Moines Independent
School District opened the floodgates to school free
speech LITIGATION, and while court decisions have
certainly gone back and forth between the right to
free speech and the need to impose discipline and
respect the feelings of all students, there has never
been any attempt to go back to the strict free speech
restrictions of the pre-Vietnam War era.
Public school free speech rights for students can
be divided into those applying to elementary and
secondary students and those dealing with college is-
sues. Since college students are adults, the First
Amendment situations dealt with are substantially
different. Analyzing student free speech rights in this
way can give a cohesive picture of those rights for
students today.
Free Speech Rights in Public Schools
Free speech rights in public elementary and sec-
ondary schools have undergone a remarkable trans-
formation in the past 30 years, from nonexistence to
a perpetual tension between those rights and the
need for schools to control student behavior in order
to preserve the sanctity of the learning environment.
Today, it would be most accurate to say that public
schools students have some First Amendment rights
in schools, but certainly not as many as adults do in
the real world. Although Tinker v. Des Moines Inde-
pendent School District was the landmark case that
set forth the standards which current student free
speech cases are judged, the first case that suggested
students had some First Amendment rights was de-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 501
cided much earlier—during World War II, to be
exact.
West Virginia State Board of Education v.
Barnette
This 1943 case marked the first time the Supreme
Court ever conceded students had First Amendment
rights. During World War II, the West Virginia State
Board of Education passed a law requiring all stu-
dents to salute the flag and recite the Pledge of Alle-
giance. Several students and their parents who were
members of the Jehovah’s Witnesses challenged the
policy, arguing their religion prevented them from
swearing allegiance to anyone but God, and so they
could not recite the Pledge of Allegiance. The Su-
preme Court decided the students were in the right,
and on First Amendment grounds struck down the
West Virginia ORDINANCE as violating the right of free
expression.
‘‘ Educating the young for citizenship is reason for
scrupulous protection of constitutional freedoms of
the individual,’’ said the Court, ‘‘if we are not to
strangle the free mind at its source and teach youth
to discount important principles of our government
as mere platitudes.’’ The Court determined that stu-
dents had the right not to be coerced by school ad-
ministrators to doing something that disagreed with
their religious beliefs. Free speech in this case meant
the right not to say something, in this case, the
Pledge of Allegiance.
Tinker v. Des Moines Independent
Community School District
After Barnette, the student First Amendment
rights front was quiet in the courts, until the case of
Tinker v. Des Moines Independent Community
School District in 1969 shattered the peace and
made sure there would be controversy for a long
time to come. The Vietnam War was raging full force
when the students at a Des Moines, Iowa, high
school decided to wear black armbands to school
one day to protest what they saw as an unjust strug-
gle. The school administrators learned of their plan
and passed a rule banning black armbands from the
school and suspending any student caught wearing
one. The students wore the armbands anyway, and
as a result were suspended. They sued the school
district.
In writing in favor of the students for the majority,
Justice Abe Fortas wrote these iconic words: ‘‘It can
hardly be argued that either students or teachers
shed their constitutional rights to FREEDOM OF SPEECH
or expression at the schoolhouse gate... School offi-
cials do not possess absolute authority over their stu-
dents. Students in school as well as out of school are
‘persons’ under our Constitution. They are pos-
sessed of fundamental rights which the State must
respect... In the absence of specific showing of con-
stitutionally valid reasons to regulate their speech,
students are entitled to freedom of expression of
their views.’’
But Fortas added an important CAVEAT: conduct
that ‘‘materially disrupts classwork or involves sub-
stantial disorder or invasion of the rights of others is,
of course, not immunized by the constitutional guar-
antee of freedom of speech.’’ In other words, not all
student conduct is First Amendment protected, only
that which does not disturb the classroom environ-
ment or invade the rights of others. This standard,
also known as the ‘‘material and substantial disrup-
tion test,’’ has basically remained the standard in
which the school’s right to prescribe free speech is
examined at the secondary rank as well as at public
colleges and universities.
After Tinker, a host of cases were brought at the
lower court level litigating public school free speech
issues. Many of these came down on the side of free-
dom of expression for students. Many lower courts
found themselves asking, after Tinker, what student
speech can in fact be regulated.
Bethel School District No. 403 v. Fraser
The Supreme Court finally attempted to set some
limits on student First Amendment rights in the 1986
case of Bethel School District No. 403 v. Fraser. Mat-
thew Fraser made a speech at an assembly full of ob-
scenities and innuendoes. When school officials at-
tempted to discipline him for his speech, he sued.
The Supreme Court sided with the school.
The Court found that Fraser had failed the ‘‘sub-
stantial disorder’’ part of the Tinker test. CHIEF
JUSTICE Warren Berger, writing for the majority, said
that schools have a responsibility to instill students
with ‘‘habits and manners of civility as values.’’ The
effect of Fraser’s speech, suggested Berger, was to
undermine this responsibility; therefore, he did not
receive First Amendment protection for it. Not only
can schools take into account whether speech is of-
fensive to other students, said Berger, ‘‘the undoubt-
ed freedom to advocate unpopular and controversial
views in schools and classrooms must be balanced
against the society’s countervailing interest in teach-
ing students the BOUNDARIES of socially appropriate
behavior.’’ Bethel served notice that the Supreme
Court saw limitations on student free speech rights.
EDUCATION—STUDENT RIGHTS/FREE SPEECH
502 GALE ENCYCLOPEDIA OF EVERYDAY LAW
The next big school First Amendment case decided
by the court served to emphasize that point.
Hazelwood School District v. Kuhlmeier
The school newspaper at Hazelwood East High
School in Missouri was courting controversy when it
decided to publish an article on pregnancy among
students naming names, as well as an article on stu-
dents of divorced parents. The principal of the
school censored both articles from the school paper.
The student editors of the newspaper sued.
In 1988, the Supreme Court handed down its de-
cision: a complete defeat for the students. The ma-
jority of the court claimed Tinker did not apply to
this case, since the school newspaper was a school-
sponsored activity. According to the Court, when an
activity is school sponsored, school officials may cen-
sor speech as long as such CENSORSHIP is reasonably
related to legitimate educational concerns. The
Court went on to define these concerns broadly, stat-
ing that school officials would have the right to cen-
sor material that is ‘‘ungrammatical, poorly written,
inadequately researched, biased or prejudiced, vul-
gar or profane, or unsuitable for immature audi-
ences, or inconsistent with shared values of a civi-
lized social order.’’
Hazelwood did distinguish between school-
sponsored publications and other activities, and pub-
lications and activities that were not school spon-
sored, which the Court suggested would be given
greater free-speech leeway. Nevertheless, the Hazel-
wood decision was clearly a defeat for student free
speech rights. School officials were now allowed to
censor school newspapers, as well as other school
sponsored activities such as theatrical productions,
in ‘‘any reasonable manner.’’
Elementary and Secondary Student Rights
Since Hazelwood
Since Hazelwood, the Supreme Court has not
tackled a non-religious free speech issue involving a
public elementary or high school. Lower courts that
have dealt with these issues have tended to follow
Hazelwood’s ruling pretty closely: a if a free speech
case involves a school sponsored activity, school offi-
cials are given wide latitude. Since all but a few stu-
dent free speech cases involve a school-sponsored
activity, the effect has been that most free speech
cases have gone against students, with some minor
exceptions.
Lower courts have also determined that school of-
ficials have broad discretion at the elementary school
level in controlling student speech, ruling in several
cases that Tinker does not apply. However, most
legal commentators believe that despite these devel-
opments, Tinker still remains in force, at least for
high school students. School administrators are still
required to show ‘‘material and substantial disrup-
tion’’ before limiting student speech in non-school
sponsored activities.
Higher Education Free Speech Issues
Institutions of higher education have generally
been held to have less control over student free
speech rights than elementary and high school
teachers and administrators. In part, this position re-
flects the fact that college students are adults. How-
ever, there have still been areas of controversy in
post-secondary student free speech rights, generally
having to do with funding issues. The latest area of
controversy has been with so-called ‘‘hate codes,’’
which ban certain types of speech considered offen-
sive from college campuses.
Recognizing Student Groups
One way in which colleges and universities have
traditionally imposed free speech restrictions on stu-
dents is by determining which student groups they
will recognize. Such recognition traditionally allows
these groups to share in mandatory fees and receive
space for offices and to hold meetings on college
campuses. Generally speaking, colleges are held to
have made available a ‘‘limited public forum’’ to such
groups, and as such are limited in the restrictions
they can impose.
In the 1973 case of Healy v. James, the Supreme
Court established that a college or university could
not refuse to recognize an organization simply be-
cause university officials had an unproven fear of
school disruption. Healy applied the material and
substantial disruption test of Tinker to the college
environment and found that unless the school had
a compelling reason to believe that a group, in this
case, Students for a Democratic Society, would seri-
ously interfere with learning on the campus environ-
ment, it could not deny recognition.
In 1981, the Court went further in the case of Wid-
mar v. Vincent. Involving the decision by the Univer-
sity of Missouri to refuse to recognize and grant ac-
cess to university property to a religious group, the
Court ruled that the University’s decision to do so,
while allowing access to several secular based
groups, violated the First Amendment. The Court’s
EDUCATION—STUDENT RIGHTS/FREE SPEECH
GALE ENCYCLOPEDIA OF EVERYDAY LAW 503
decision in Widmar effectively meant that any deci-
sion by a college to deny recognition to a particular
group was going to be analyzed with strict scrutiny
and most likely struck down.
While none of these cases has reached the Su-
preme Court, one of the most litigated issues of the
past thirty years involving recognition of student
groups has involved recognition of homosexual
groups. Generally speaking, nearly all attempts by
colleges to refuse to recognize gay groups have been
held to violate these groups First Amendment rights.
Mandatory Student Fees
Mandatory student fees constitute another area in
which colleges and universities have faced free
speech issues. These fees are generally collected by
colleges as part of student tuition, and then distribut-
ed to a wide variety of groups.
Colleges usually do not impose restrictions in
terms of ideology on which groups receive these
fees, but they have in the past denied funding to
groups promoting a religious viewpoint. However, in
1995 in Rosenberger v. Rector of the University of
Virginia, the Supreme Court struck down these re-
strictions at the University of Virginia and ruled the
University could not silence the expression of select-
ed viewpoints by denying the groups student fee
money. The Rosenberger decision stated colleges
have to be rigidly neutral in distributing student fee
money and cannot discriminate on the basis of con-
tent or viewpoint without violating the First Amend-
ment.
A related issue concerning mandatory student
fees has been whether it violates a student’s First
Amendment rights to be forced to pay fees that fund
groups with which the student disagrees. In 2000, in
the case of Board of Regents v. Southworth, the Su-
preme Court determined that it does not, as long as
the money is distributed in a viewpoint neutral fash-
ion, and does not favor one viewpoint over another.
Hate Speech Codes
The most recent free-speech issue to hit college
campuses involves so-called hate speech codes.
These are codes passed by colleges that restrict
speech considered offensive to other groups on cam-
pus, particularly speech that is believed to be racist
or sexist.
While a case involving these hate speech codes
has not yet reached the Supreme Court, lower courts
have been undecided about allowing them to stand.
For example, in Doe v. University of Michigan, in
1993, the United States Court for the Eastern District
of Michigan struck down a policy passed by the Uni-
versity of Michigan regulating hate speech. The court
found the policy overbroad and unconstitutionally
vague. The university could not regulate speech ‘‘be-
cause it disagreed with the ideas or the messages
sought to be conveyed,’’ said the court, ‘‘nor be-
cause the speech was found to be offensive, even
gravely so, by large numbers of people.’’ Added the
court: ‘‘These principles acquire a special signifi-
cance in the university setting, where the free and
unfettered interplay of competing views is essential
to the institution’s educational mission.’’ This has
been the fate of speech codes that have been litigat-
ed, and as of this writing, not one has passed muster
at the federal court level.
Additional Resources
‘‘The First Amendment and Higher Education Students:
Part I: The Religion Cases.’’ Zirkel, Perry, West Educa-
tion Law Reporter, December, 1999.
‘‘The First Amendment and Higher Education Students:
Part II: The Secular Cases.’’ Zirkel, Perry, West Educa-
tion Law Reporter, April 2000.
‘‘How Free is the Speech of Public School Students?’’ Rohr,
Marc, Florida Bar Journal, June 2000.
‘‘Injustice In Our Schools: Students’ Free Speech Rights are
not Being Vigilantly Protected.’’ Lloyd, Heather K.,
Northern Illinois University Law Review, Spring, 2001.
The Law of Schools, Students and Teachers. Alexander,
Kern, M. David Alexander, West Group, 1995.
‘‘What’s Next for Wayne Dick? The Next Phase of the De-
bate Over College Hate Speech Codes.’’ Ohio State Law
Journal, 2000.
Organizations
Coalition For Student And Academic Rights
(COSTAR)
Post Office Box 491
Solebury, PA 18963 USA
Phone: (215) 862-9096
Fax: (215) 862-9097
URL: http://www.co-star.org/index.html
Freedom Forum First Amendment Center
1207 18th Ave. South
Nashville, TN 37212 USA
Phone: (615) 727-1600
Fax: (615) 727-1319
EDUCATION—STUDENT RIGHTS/FREE SPEECH
504 GALE ENCYCLOPEDIA OF EVERYDAY LAW
E-Mail: info@fac.org
URL: http://www.freedomforum.org/first/default.asp
Primary Contact: Kenneth Paulson, Executive
Director
Student Press Law Center (SPLC)
1815 N Fort Myer Drive, Suite 900
Arlington, VA 22209-1817 USA
Phone: (703) 807-1904
URL: http://splc.org/
Primary Contact: Mark Goodman, Executive
Director
EDUCATION—STUDENT RIGHTS/FREE SPEECH
GALE ENCYCLOPEDIA OF EVERYDAY LAW 505
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EDUCATION
TEACHER’S UNIONS/COLLECTIVE
BARGAINING
Sections within this essay:
• Background
• Constitutional Considerations Regarding
Unions
• Forming and Joining a Union to Bargain Col-
lectively
- Bargaining Units
- Representation Procedures
• Obligations and Resolution of Conflicts in
Collective Bargaining
- Exclusivity and Good Faith in Bar-
gaining Agreement
- Terms of the Collective Bargaining
Agreement
- Impasse
- Strikes
• Collective Bargaining in Higher Education
• State and Local Provisions Governing Collec-
tive Bargaining
• Additional Resources
Background
In 1935 Congress passed the National Labor Rela-
tions Act (Wagner Act), which guarantees the right
of private employees to form and join unions to bar-
gain collectively. The vast majority of states have ex-
tended this right to public employees, including
teachers at public school districts. Many states re-
quire school districts to bargain collectively with
teachers who have formed a union. Other states re-
quire districts to meet with teachers’ representatives.
Some states expressly prohibit COLLECTIVE
BARGAINING by public school teachers or other public
employees.
A wide range of provisions may be negotiated in
collective bargaining between teachers’ unions and
school districts. Some subjects are mandatory, while
others are merely permitted or even prohibited.
State law governs the appropriateness of subjects to
be bargained. The following are some of the matters
that are often the subject of this bargaining:
• Academic freedom
• Curriculum
• Wages and salaries
• Training
• Hours, workload, and teaching responsibili-
ties
• Tenure and probationary period
• Promotion
• Reappointment
• Reclassification and reduction
• Evaluation procedures
• Grievance procedures
• Personnel files
• Student discipline
• Retirement benefits
• Sick leave
• Leaves and sabbaticals
GALE ENCYCLOPEDIA OF EVERYDAY LAW 507
Constitutional Considerations Regarding
Unions
The First Amendment of the BILL OF RIGHTS pro-
vides: ‘‘Congress shall make no law . . . prohibiting
. . . the right of people peaceably to assemble.’’ This
right, as applied to the states through the Fourteenth
Amendment of the Constitution, has been interpret-
ed to give teachers and other employees the right to
free association, including the right to join a union,
such as the National Education Association or the
American Federation of Teachers. However, the
Constitution does not grant teachers the right to bar-
gain collectively with employers. This right is based
on applicable provisions in state constitutions, feder-
al statutes, or state statutes. Similarly, teachers do
not have a constitutional right to strike, though other
federal law or state law may permit teachers to strike.
Forming and Joining a Union to Bargain
Collectively
Laws governing the representation process are
often quite complex. This process prefaces the col-
lective bargaining process and involves numerous
considerations, including types of employees that
will constitute a ‘‘bargaining unit,’’ as well as the se-
lection of an appropriate union to represent teach-
ers. In the public school sector, state law affects both
of these determinations. Some states exclude certain
employees from a bargaining unit, including supervi-
sors and individuals in management positions.
Bargaining Units
Teachers seeking to join for collective bargaining
must define an appropriate bargaining unit. Under
most labor relations statutes, only those individuals
who share a ‘‘community of interests’’ may comprise
an appropriate bargaining unit. Community of inter-
ests generally means that the teachers have substan-
tial mutual interests, including the following:
• Wages or compensation
• Hours of work
• Employment benefits
• Supervision
• Qualifications
• Training and skills
• Job functions
• Contact with other employees
• Integration of work functions with other em-
ployees
• History of collective bargaining
Many state statutes prescribe certain require-
ments or considerations with respect to bargaining
units in the public sector. For example, some stat-
utes require labor boards to avoid over-proliferation
of bargaining units. Moreover, some statutes also set
forth specific bargaining units, such as those for fac-
ulty, staff, maintenance, and similar distinctions.
Representation Procedures
The National Labor Relations Act and most state
statutes provide formal processes for designation
and recognition of bargaining units. If a dispute
arises with respect to union representation, many
states direct parties to resolve these dispute with the
public employment relations board in that state.
After the bargaining units are organized, members
may file a petition with the appropriate labor board.
The labor board will generally determine that
JURISDICTION over the bargaining unit is appropriate,
that the proposed bargaining unit is appropriate, and
that a majority of employees approve the bargaining
unit through an election. Several procedures are usu-
ally in place in the STATUTE and rules of the labor
board to ensure that the vote is uncoerced and oth-
erwise fair. After this election, the labor board will
certify the union as the exclusive representative of
the bargaining unit. Once a union is certified, usually
for a one-year period, neither employees nor anoth-
er union may petition for a new election.
Obligations and Resolution of Conflicts
in Collective Bargaining
Exclusivity and Good Faith in Bargaining
Agreement
Once a union has been elected, both public and
private school boards are bound to deal exclusively
with that union. The elected union must bargain for
the collective interests of the members of the bar-
gaining unit. Both the school district and the union
representing teachers must bargain in GOOD FAITH.
The duty of parties to bargain in good faith is impor-
tant in the collective bargaining process, since nego-
tiations between school districts and unions can be-
come intense and heated.
Interpretations of the term ‘‘good faith’’ under
the National Labor Relations Act typically focus on
openness, fairness, mutuality of conduct, and coop-
eration between parties. Many state statutes define
‘‘good faith’’ similarly, though some states provide
more specific guidance regarding what constitutes
EDUCATION—TEACHER’S UNIONS/COLLECTIVE BARGAINING
508 GALE ENCYCLOPEDIA OF EVERYDAY LAW
good faith bargaining. Some states also provide a list
of examples that are deemed instances of bargaining
in BAD FAITH. Refusal to negotiate in good faith con-
stitutes an UNFAIR LABOR PRACTICE under the National
Labor Relations Act and many state statutes.
Terms of the Collective Bargaining
Agreement
Most state statutes do not require schools to bar-
gain on issues involving the educational policy of the
school board. Many states require school boards and
unions to bargain on ‘‘wages, hours, and terms and
conditions of employment.’’ Some states limit bar-
gaining to such mandatory issues as benefits, insur-
ance, or sick leave. When a state statute includes
mandatory subjects, these subjects must be bar-
gained over at the request of either the school board
or the teachers’ union. If either party refuses to ne-
gotiate over a mandatory subject, state statutes gen-
erally deem this a refusal to negotiate in good faith
and, thus, an unfair labor practice.
In the absence of STATUTORY language specifying
the scope of collective bargaining, teacher unions
and school boards must consult relevant CASE LAW in
that state to determine if the courts have set forth pa-
rameters. Other limitations to collective bargaining
may also be present. A COLLECTIVE BARGAINING
AGREEMENT, for example, cannot violate or contradict
existing statutory law or constitutional provisions.
Similarly, the collective bargaining agreement should
recognize contract rights that may already exist
through other agreements.
Impasse
Negotiations may fail to lead to a completed
agreement between a teachers’ union and a school
board. When good faith efforts fail to resolve the dis-
pute or disputes between the parties, a legal impasse
occurs. At the time impasse occurs, active bargaining
between the parties is usually suspended.
Parties usually go through a series of options once
an impasse has occurred, though public and private
school teachers’ options may differ. The first step
after an impasse is declared is usually MEDIATION.
When parties employ a mediator, the mediator acts
as a neutral third party to assist the two sides in
reaching a compromise. Mediators lack power to
make binding decisions, and they are employed only
as advisors. Many state statutes require use of media-
tors in the public sector upon declaration of an im-
passe. Private sector unions and schools may employ
a federal mediator, though federal labor laws do not
prescribe further options regarding dispute resolu-
tion.
If mediation fails, many state statutes require the
parties to employ a fact-finder, who analyzes the facts
of the bargaining process and seeks to recognize a
potential compromise. The parties are not bound by
the recommendations of the fact-finder, though it
may influence public opinion regarding the appro-
priate resolution of the dispute. The recommenda-
tions are particularly influential in the public sector,
where the school board is a government body con-
sisting of elected officials, and teachers and other
staff are public employees. However, this step in the
process may not bring resolution to the dispute. In
some states, fact-finding is the final stage of impasse
resolution, leaving the parties to bargain among
themselves.
A third option is ARBITRATION, though this is gen-
erally only employed in the public education sector.
An arbitrator is a third party who performs functions
similar to a fact-finder, yet the arbitrator’s decision is
binding on both parties. In several states, arbitration
is permissive, meaning parties may submit their dis-
pute to an arbitrator after fact-finding if they so de-
sire. Some states mandate use of binding arbitration,
often as an alternative to the right to strike.
Strikes
If efforts for impasse resolution fail between a
teachers’ union and a school district, teachers may
choose to strike to persuade or coerce the board to
meet the demands of the union. A lockout by an em-
ployer is the counterpart to a strike. The right to
strike in the private sector is guaranteed under the
National Labor Relations Act. However, only about
half of the states have extended this right to teachers
in the public sector. These states usually limit this
right under the respective labor laws. Where teach-
ers do not have the right to strike, state statutes often
impose monetary or similar penalties on those who
strike illegally.
In states where strikes are permitted in the public
sector, teachers often must meet several conditions
prior to the strike. For example, a state may require
that a bargaining unit has been certified properly,
that methods for impasse resolution have been ex-
hausted, that any existing collective bargaining
agreement has expired, and that the union has pro-
vided sufficient notice to the school board. The pur-
pose of such conditions is to give the parties an op-
portunity to avoid a strike, which is usually
unpopular with both employers and employees.
EDUCATION—TEACHER’S UNIONS/COLLECTIVE BARGAINING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 509
Collective Bargaining in Higher
Education
Collective bargaining in higher education differs
somewhat from bargaining by primary and second-
ary school teachers. The National Labor Relations Act
applies to many private institutions of higher educa-
tion, which usually have much higher revenues and
many more employees than private schools at the
primary or secondary level. In many states, the same
statutes that govern bargaining at the primary or sec-
ondary level govern collective bargaining in higher
education. In other states, however, the statutes pre-
scribe different rules with respect to state universi-
ties than they do with school districts. Governance
of a public university is often much more complex
than governance at a primary or secondary school,
and the interests of the employees is often much
more diverse among university faculty members and
other employees than the interests of high school,
middle school, or elementary school teachers and
employees. Whereas a primary or secondary school
may require only a minimal number of bargaining
units, a large university may require several bargain-
ing units to represent the various interests of the em-
ployees of the university.
State and Local Provisions Governing
Collective Bargaining
The National Labor Relations Act (NLRA) governs
labor relations in private schools, subject to some
limitations. A teachers’ union of a private schools
should determine whether the NLRA applies to its
school. State labor statutes generally govern labor re-
lations between public school districts and teachers’
unions. These provisions are summarized below.
Collective bargaining statutes differ considerably
from state to state, with some states providing much
more guidance and specific rules than others.
ALABAMA: Teachers have a general right to join or
refuse to join a labor organization.
ALASKA: Certified employees and school boards
must follow specific procedures set forth in the stat-
ute. Under the state’s Public Employment Relations
Act, student representatives must be permitted to at-
tend meetings and have access to documents in ne-
gotiations between a postsecondary education insti-
tution and a bargaining representative. The statute
also permits a strike, with some limitations, by public
school employees after mediation if a majority of em-
ployees vote by secret ballot to do so.
ARIZONA: Arizona has not enacted a collective bar-
gaining statute governing public schools. Teachers in
this state should consult relevant case law to deter-
mine when collective bargaining is permitted.
ARKANSAS: Teachers have a general right to organize
and bargain collectively.
CALIFORNIA: An extensive statutory scheme is pro-
vided for governing collective bargaining between
public schools and bargaining representatives, under
the Public School Employee Relations Act. The stat-
ute limits the scope of representation to matters re-
lated to wages, employment hours, and other terms
and conditions of employment. Employer and em-
ployee representatives are required to ‘‘meet and ne-
gotiate.’’ If impasse is declared, mediation and, if
necessary, fact-finding are required. Arbitration is
permitted, but it is not required by statute.
COLORADO: Collective bargaining is permitted by
statute. Teachers have a limited right to strike.
CONNECTICUT: A statute permits collective bargain-
ing by members of the teaching profession. Howev-
er, the state prohibits professional employees from
striking and allows courts to enforce this prohibition.
DELAWARE: Public school employees are permitted
to bargain collectively. Majority vote is required for
union representation from all eligible members of
the bargaining unit. The state prohibits strikes by
teachers.
FLORIDA: The state constitution guarantees the
right to collective bargaining but prohibits strikes by
public employees. State statute defines ‘‘good faith
bargaining,’’ requiring parties to meet at reasonable
times and places with the intent to reach a common
accord.
HAWAII: Statute permits bargaining by all public em-
ployees. Statute defines certain bargaining units, in-
cluding some supervisory employees. Mediation,
fact-finding, and arbitration are provided in the stat-
ute. Strikes are permitted, but only in certain narrow
circumstances.
IDAHO: Statute prescribes procedures for bargain-
ing between a school board and certificated school
employees.
ILLINOIS: Educational employees at all levels permit-
ted to bargain under the Illinois Educational Labor
Relations Act. However, several types of employees,
including supervisors, managers, confidential em-
EDUCATION—TEACHER’S UNIONS/COLLECTIVE BARGAINING
510 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ployees, short-term employees, and students, are ex-
cluded from bargaining by statute. Impasse proce-
dures include mediation and fact-finding. Arbitration
is permitted. Strikes are permitted after several con-
ditions set forth in the statute are met.
INDIANA: Certificated educational employees per-
mitted to bargain by statute. Statute prescribes cer-
tain subjects that may be bargained and certain sub-
jects that may be discussed. Strikes are prohibited.
IOWA: All public employees permitted to bargain
collectively. Mediation and fact-finding required for
impasse resolution. The state labor board at the re-
quest of the school board or union may order bind-
ing arbitration. Strikes are prohibited.
KANSAS: Statute permits bargaining by all public em-
ployees. Employer retains a number of rights, includ-
ing right to direct work of employees. Strikes are
prohibited.
LOUISIANA: No collective bargaining statute governs
public schools. Teachers in this state should consult
relevant case law to determine when collective bar-
gaining is permitted.
MAINE: Statute permits collective bargaining by all
public employees. Strikes by all state employees are
prohibited.
MARYLAND: Statute permits bargaining by all certi-
fied and noncertified public school employees.
MASSACHUSETTS: Statute permits bargaining by all
public employees. Strikes by public employees are
prohibited.
MICHIGAN: Statute permits bargaining by public em-
ployees. Negotiations by teachers limited under
some circumstances. Strikes by public employees are
prohibited.
MINNESOTA: Statute permits bargaining by all public
employees. State permits strikes only under certain
circumstances, including completion of impasse res-
olution.
MISSISSIPPI: Strikes by teaches are illegal by statute.
MISSOURI: Teachers at public schools have the right
to bargain collectively. Statute does not grant a right
to strike.
MONTANA: Statute permits bargaining by all public
employees. Courts have construed state statute to
permit the right to strike.
NEBRASKA: Statute permits bargaining by all public
employees. State restricts supervisors from joining a
bargaining unit but permits some administrators,
subject to restrictions, to join such a bargaining unit
with teachers. Strikes by teachers are prohibited.
NEVADA: Statute permits bargaining by all public
employees. Strikes by public employees are illegal by
statute.
NEW HAMPSHIRE: Statute permits bargaining by all
public employees. Impasse resolution procedures
must be implemented within the time period speci-
fied by the statute. Strikes by public employees are
illegal by statute.
NEW JERSEY: Statute permits bargaining by all public
employees but excludes standards of criteria for em-
ployee performance from the scope of negotiation.
NEW YORK: Statute permits bargaining by all public
employees. The statute limits the scope of negotia-
tions to matters related to wages, employment
hours, and other terms and conditions of employ-
ment. Arbitration is required by statute when an im-
passe is declared. Strikes by public employees are
prohibited.
NORTH CAROLINA: Statute prohibits collective bar-
gaining by all public employees. Statute also prohib-
its strikes by public employees.
NORTH DAKOTA: Statute permits bargaining by cer-
tificated school employees. Strikes by school em-
ployees are prohibited.
OHIO: Statute permits bargaining by public employ-
ees. Strikes by public employees are prohibited.
OKLAHOMA: Statute permits bargaining by all public
school employees. Strikes by teachers are prohibit-
ed.
OREGON: Statute permits bargaining by all public
employees. Impasse resolution procedures include
mediation and fact-finding. Strikes are permitted
after impasse resolution procedures have been im-
plemented.
PENNSYLVANIA: Statute permits bargaining by all
public employees under the Public Employee Rela-
tions Act. Statute limits which employees may be in-
cluded in a single bargaining unit. Public school dis-
tricts are not required to bargain over the ‘‘inherent
management policy’’ of the district. Strikes by public
employees are permitted after conditions set forth in
the statute are met.
RHODE ISLAND: Statute permits bargaining by all
certified public school employees. Strikes by public
school employees are prohibited.
EDUCATION—TEACHER’S UNIONS/COLLECTIVE BARGAINING
GALE ENCYCLOPEDIA OF EVERYDAY LAW 511
SOUTH DAKOTA: Statute permits bargaining by all
public employees. Strikes by public employees are
prohibited.
TENNESSEE: Negotiations by professional educators
governed by the Education Professional Negotiations
Act. Strikes by education professionals are prohibit-
ed.
TEXAS: Statute prohibits public employees from en-
tering into a collective bargaining agreement. Statute
also prohibits strikes by public employees.
UTAH: Statute permits union membership by public
employees.
VERMONT: Statute permits bargaining by public
school teachers, with representation election admin-
istered by the American Arbitration Association.
Strikes by state employees are prohibited by statute.
VIRGINIA: Strikes by public employees are prohibit-
ed by statute.
WASHINGTON: Statute permits bargaining by public
employees, including certified educational employ-
ees. Strikes by public employees are prohibited by
statute.
WEST VIRGINIA: No collective bargaining statute
governs public schools. Teachers in this state should
consult relevant case law to determine when collec-
tive bargaining is permitted.
WISCONSIN: Statute permits bargaining by munici-
pal employees. Impasse resolution procedures in-
clude mediation and arbitration. Strikes are permit-
ted after impasse resolution procedures have been
exhausted.
WYOMING: Statute permits right to bargain as a mat-
ter of PUBLIC POLICY.
Additional Resources
Deskbook Encyclopedia of American School Law. Oak-
stone Legal and Business Publishing, 2001.
Education Law. Rapp, James A., Lexis Publishing, 2001.
Education Law. Imber, Michael, and Tyll Van Geel, Law-
rence Erlbaum Associates, 2000.
The Law of Public Education. Reutter, E. Edmund, Jr.,
Foundation Press, 1994.
Private School Law in America. Oakstone Legal and Busi-
ness Publishing, 2000.
School Law and the Public Schools: A Practical Guide for
Educational Leaders. Essex, Nathan, Allyn and Bacon,
1999.
Teachers and the Law. Fischer, Louis, David Schimmel,
and Cynthia Kelly, Addison Wesley Longman, 1999.
U. S. Code, Title 29: Public Health and Welfare, Chapter
7: Labor-Management Relations. U. S. House of Repre-
sentatives, 1999. Available at http://uscode.house.gov/
title_29.htm
Organizations
American Arbitration Association (AAA)
335 Madison Avenue, Floor 10
New York, NY 10017 USA
Phone: (212) 716-5800
Fax: (212) 716-5905
URL: http://www.adr.org/
Primary Contact: William K. Slate II, President and
Chief Executive Officer
American Association of School
Administrators (AASA)
1801 N. Moore St.
Arlington, VA 22209 USA
Phone: (703) 528-0700
Fax: (703) 841-1543
URL: http://www.aasa.org/
Primary Contact: Paul Houston, Executive Director
American Federation of Teachers (AFT)
555 New Jersey Avenue, NW
Washington, DC 20001 USA
Phone: (202) 879-4400
URL: http://www.aft.org/
Education Law Association (ELA)
300 College Park
Dayton, OH 45469 USA
Phone: (937) 229-3589
Fax: (937) 229-3845
URL: http://www.educationlaw.org/
Primary Contact: R. Craig Wood, President
Education Policy Institute (EPI)
4401-A Connecticut Ave., NW
Washington, DC 20008 USA
Phone: (202) 244-7535
Fax: (202) 244-7584
URL: http://www.educationpolicy.org/
Primary Contact: Charlene K. Haar, President
National Education Association (NEA)
1201 16th Street, NW
Washington, DC 20036 USA
Phone: (202) 833-4000
URL: http://www.nea.org/
Primary Contact: Bob Chase, President
EDUCATION—TEACHER’S UNIONS/COLLECTIVE BARGAINING
512 GALE ENCYCLOPEDIA OF EVERYDAY LAW
EDUCATION
TEACHERS’ RIGHTS
Sections within this essay:
• Background
• Teacher Certification
- Certification Requirements
- Denial or Revocation of Teaching
Certificate
• Tenure and Dismissal of Teachers
- Tenure
- Dismissal for Cause
- Due Process Rights of Teachers
• Teacher Contracts
- Ratification of Contracts by School
Districts
- Teacher’s Handbook as a Contract
- Breach of Teacher Contract
- Remedies for Breach of Contract
- Collective Bargaining by Teachers
• Teacher Freedoms and Rights
- Freedom from Discrimination
- Academic Freedom
- Freedom of Expression
- Freedom of Association
- Freedom of Religion
- Privacy Rights
- Age
- Pregnancy
• State and Local Laws Regarding Teachers’
Rights
• Additional Resources
Background
Teachers in the United States enjoy a number of
rights pertaining to their employment, including rec-
ognition of certain freedoms, prohibition against cer-
tain forms of DISCRIMINATION, and significant protec-
tions against DISMISSAL from their position. These
rights are derived from state and federal constitu-
tional provisions, state and federal statutes, and state
and federal regulations.
Constitutional provisions provide protection to
teachers at public schools that are generally not avail-
able to teachers at private schools. Since public
schools are state entities, constitutional restrictions
on state action limit some actions that public schools
may take with respect to teachers or other employ-
ees. Rights that are constitutional in nature include
the following:
• Substantive and procedural due process
rights, including the right of a teacher to re-
ceive notice of termination and a right to a
HEARING in certain circumstances
• Freedom of expression and association pro-
vided by the First Amendment of the BILL OF
RIGHTS
• Academic freedom, a limited concept recog-
nized by courts based on principles of the
First Amendment
• Protection against unreasonable searches
and seizures by school officials of a teacher’s
PERSONAL PROPERTY provided by the Fourth
Amendment
Though private school teachers do not generally
enjoy as much of the constitutional protection as
GALE ENCYCLOPEDIA OF EVERYDAY LAW 513
public school teachers, statutes may provide protec-
tion against discrimination. The CIVIL RIGHTS Act of
1964, for example, protects teachers at both public
and private schools from racial, sexual, or religious
discrimination. Private school teachers may also
enjoy rights in their contracts that are similar to due
process rights, including the inability of a private
school to dismiss the teacher without cause, notice,
or a hearing.
Teacher Certification
Certification Requirements
Every state requires that teachers complete cer-
tain requirements to earn a teacher’s certificate in
order to teach in that state. Most states extend this
requirement to private schools, though some juris-
dictions may waive this for certain sectarian or de-
nominational schools. The requirements that must
be satisfied and the procedures that must be fol-
lowed to earn certification vary from state to state.
Requirements generally include completion of a cer-
tified education program, completion of a student
teaching program, acceptable performance on a
standardized test or tests, and submission of back-
ground information to the appropriate state agency
in charge of accreditation. Some states require more
extensive physical and mental testing of teachers and
a more extensive background check. Some states
also require drug testing of applicants prior to certifi-
cation. An increasing number of states now require
teachers to complete a satisfactory number of contin-
uing education credits to maintain certification.
Denial or Revocation of Teaching Certificate
Courts have held consistently that teaching certifi-
cates are not contracts. Thus, requirements to attain
or maintain a certificate may be changed and applied
to all teachers and prospective teachers. The certifi-
cation process is administered by state certifying
agencies in each state, and most of these agencies
have been delegated significant authority with re-
spect to the administration of these rules. Despite
this broad delegation, however, the state agencies
may not act arbitrarily, nor may these agencies deny
or revoke certification on an arbitrary basis. Some
state statutes provide that a certificate may be re-
voked for ‘‘just cause.’’ Other common STATUTORY
grounds include the following:
• Immoral conduct or indecent behavior
• INCOMPETENCY
• Violations of ethical standards
• Unprofessional conduct
• Misrepresentation or FRAUD
• Willful neglect of duty
Tenure and Dismissal of Teachers
Tenure
Most states protect teachers in public schools
from arbitrary dismissal through tenure statutes.
Under these tenure statutes, once a teacher has at-
tained tenure, his or her contract renews automati-
cally each year. School districts may dismiss tenured
teachers only by a showing of cause, after following
such procedural requirements as providing notice to
the teacher, specifying the charges against the teach-
er, and providing the teacher with a meaningful hear-
ing. Most tenure statutes require teachers to remain
employed during a probationary period for a certain
number of years. Once this probationary period has
ended, teachers in some states will earn tenure auto-
matically. In other states, the local school board must
take some action to grant tenure to the teacher,
often at the conclusion of a review of the teacher’s
performance. Tenure also provides some protection
for teachers against demotion, salary reductions, and
other discipline. However, tenure does not guaran-
tee that a teacher may retain a particular position,
such as a coaching position, nor does it provide in-
definite employment.
Prior to attaining tenure, a probationary teacher
may be dismissed at the discretion of the school dis-
trict, subject to contractual and constitutional restric-
tions. Laws other than those governing tenure will
apply to determine whether a discharge of a teacher
is wrongful. If a probationary teacher’s dismissal
does not involve discrimination or does not violate
terms of the teacher’s contract, the school district
most likely does not need to provide notice, summa-
ry of charges, or a hearing to the teacher.
In the absence of a state tenure STATUTE, a teacher
may still attain de facto tenure rights if the customs
or circumstances of employment demonstrate that a
teacher has a ‘‘legitimate claim of entitlement for job
tenure.’’ The United States Supreme Court recog-
nized this right in the case of Perry v. Sindermann,
which also held that where a teacher has attained de
facto tenure, the teacher is entitled to due process
prior to dismissal by the school district.
State laws do not govern the tenure process at pri-
vate schools. However, a contract between a private
EDUCATION—TEACHERS’ RIGHTS
514 GALE ENCYCLOPEDIA OF EVERYDAY LAW
school district and a teacher may provide tenure
rights, though enforcement of these rights is related
to the contract rights rather than rights granted
through the state tenure statute.
Dismissal for Cause
A school must show cause in order to dismiss a
teacher who has attained tenure status. Some state
statutes provide a list of circumstances where a
school may dismiss a teacher. These circumstances
are similar to those in which a state agency may re-
voke a teacher’s certification. Some causes for dis-
missal include the following:
• Immoral conduct
• Incompetence
• Neglect of duty
• Substantial noncompliance with school laws
• CONVICTION of a crime
• Insubordination
• Fraud or misrepresentation
Due Process Rights of Teachers
The Due Process Clause of the Fourteenth
Amendment, like its counterpart in the Fifth Amend-
ment, provides that no state may ‘‘deprive any per-
son of life, liberty, or property, without due process
of law.’’ This clause applies to public school districts
and provides the minimum procedural requirements
that each public school district must satisfy when dis-
missing a teacher who has attained tenure. Note that
in this context, due process does not prescribe the
reasons why a teacher may be dismissed, but rather
it prescribes the procedures a school must follow to
dismiss a teacher. Note also that many state statutory
provisions for dismissing a teacher actually exceed
the minimum requirements under the Due Process
Clause.
The United States Supreme Court case of Cleve-
land Board of Education v. Loudermill is the lead-
ing case involving the question of what process is
due under the Constitution. This case provides that
a tenured teacher must be given oral or written no-
tice of the dismissal and the charges against him or
her, an explanation of the EVIDENCE obtained by the
employer, and an opportunity for a fair and meaning-
ful hearing.
Teacher Contracts
The law of contracts applies to contracts between
teachers and school districts. This law includes the
concepts of offer, acceptance, mutual ASSENT, and
consideration. For a teacher to determine whether
a contract exists, he or she should consult authority
on the general law of contracts. This section focuses
on contract laws specific to teaching and education.
Ratification of Contracts by School Districts
Even if a school official offers a teacher a job and
the teacher accepts this offer, many state laws re-
quire that the school board ratify the contract before
it becomes binding. Thus, even if a principal of a
school district informs a prospective teacher that the
teacher has been hired, the contract is not final until
the school district accepts or ratifies the contract.
The same is true if a school district fails to follow
proper procedures when determining whether to
ratify a contract.
Teacher’s Handbook as a Contract
Some teachers have argued successfully that pro-
visions in a teacher’s handbook granted the teacher
certain contractual rights. However, this is not com-
mon, as many employee handbooks include clauses
stating that the handbook is not a contract. For a pro-
vision in a handbook to be legally binding, the teach-
er must demonstrate that the actions of the teacher
and the school district were such that the elements
for creating a contract were met.
Breach of Teacher Contract
Either a teacher or a school district can breach a
contract. Whether a breach has occurred depends on
the facts of the case and the terms of the contract.
Breach of contract cases between teachers and
school districts arise because a school district has ter-
minated the employment of a teacher, even though
the teacher has not violated any of the terms of the
employment agreement. In several of these cases, a
teacher has taken a leave of absence, which did not
violate the employment agreement, and the school
district terminated the teacher due to the leave of ab-
sence. Similarly, a teacher may breach a contract by
resigning from the district before the end of the con-
tract term (usually the end of the school year).
Remedies for Breach of Contract
The usual remedy for breach of contract between
a school district and a teacher is monetary damages.
If a school district has breached a contract, the teach-
er will usually receive the amount the teacher would
have received under the contract, less the amount
the teacher receives (or could receive) by attaining
alternative employment. Other damages, such as the
cost to the teacher in finding other employment,
may also be available. Non-monetary remedies, such
EDUCATION—TEACHERS’ RIGHTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 515
as a court requiring a school district to rehire a teach-
er or to comply with contract terms, are available in
some circumstances, though courts are usually hesi-
tant to order such remedies. If a teacher breaches a
contract, damages may be the cost to the school dis-
trict for finding a replacement. Many contracts con-
tain provisions prescribing the amount of damages
a teacher must pay if he or she terminates employ-
ment before the end of the contract.
Collective Bargaining by Teachers
Teachers’ contractual rights often arise through
COLLECTIVE BARGAINING through teachers’ unions. For
more information regarding collective bargaining by
teachers, see Education: Teacher’s Unions/Collective
Bargaining.
Teacher Freedoms and Rights
Freedom from Discrimination
The EQUAL PROTECTION Clause of the Fourteenth
Amendment of the Constitution protects teachers at
public schools from discrimination based on race,
sex, and national origin. These forms of discrimina-
tion are also barred through the enactment of Title
VII of the Civil Rights Act of 1964, which was amend-
ed in 1972 to include educational institutions. This
law provides that it is an unlawful employment prac-
tice for any employer to discriminate against an indi-
vidual based on the race, color, religion, sex, or na-
tional origin of the individual. Title IX of the
Education Amendments of 1972 provides protection
against discrimination based on sex at educational in-
stitutions that receive federal financial assistance.
Title VII and IX also prohibit SEXUAL HARASSMENT in
the workplace.
A teacher who has been subjected to discrimina-
tion has several causes of action, though proof in
some of these cases may be difficult. A teacher may
bring a cause of action under section 1983 of Title 42
of the United States Code for deprivation of rights
under the Equal Protection Clause (or other consti-
tutional provision). However, to succeed under this
cause of action, the teacher would need to prove that
the school had the deliberate intent to discriminate.
Similarly, a teacher bringing a claim under Title VII
must demonstrate that the reasons given by a school
for an employment decision were false and that the
actual reason for the decision was discrimination.
Academic Freedom
Teachers in public schools have limited freedoms
in the classroom to teach without undue restrictions
on the content or subjects for discussion. These free-
doms are based on rights to freedom of expression
under the First Amendment of the Bill of Rights.
However, the concept of academic freedom is quite
limited. The content taught by a teacher must be rel-
evant to and consistent with the teacher’s responsi-
bilities, and a teacher cannot promote a personal or
political agenda in the classroom. Factors such as the
age, experience, and grade level of students affect
the latitude in which a court will recognize the aca-
demic freedom of a teacher.
Freedom of Expression
A leading case in First Amendment JURISPRUDENCE
regarding protected forms of expression is Pickering
v. Board of Education. This case involved a teacher
whose job was terminated when he wrote to a local
newspaper an editorial critical of the teacher’s em-
ployer. The Supreme Court held that the school had
unconstitutionally restricted the First Amendment
rights of the teacher to speak on issues of public im-
portance. Based on Pickering and similar cases,
teachers generally enjoy rights to freedom of expres-
sion, though there are some restrictions. Teachers
may not materially disrupt the educational interest of
the school district, nor may teachers undermine au-
thority or adversely affect working relationships at
the school.
Freedom of Association
Similar to rights to freedom of expression, public
school teachers enjoy rights to freedom of associa-
tion, based on the First Amendment’s provision that
grants citizens the right to peaceful assembly. These
rights generally permit public school teachers to join
professional, labor, or similar organizations; run for
public office; and similar forms of association. How-
ever, teachers may be required to ensure that partici-
pation in these activities is completely independent
from their responsibilities to the school.
Freedom of Religion
The First Amendment and Title VII of the Civil
Rights Act of 1964 provide protection against reli-
gious discrimination by school districts against teach-
ers. Teaches may exercise their religious rights,
though there are certain restrictions to such rights.
This existence of restrictions is particularly relevant
to the public schools, since public schools are re-
stricted from teaching religion through the Establish-
ment Clause of the First Amendment. Thus, for ex-
ample, a teacher is free to be a practicing Christian,
yet the teacher cannot preach Christianity in the
classroom.
EDUCATION—TEACHERS’ RIGHTS
516 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Privacy Rights
Teachers enjoy limited rights to personal privacy,
though courts will often support disciplinary action
taken by a school district when a teacher’s private life
affects the integrity of the school district or the effec-
tiveness by which a teacher can teach. Thus, for ex-
ample, a teacher may be terminated from his or her
position for such acts as ADULTERY or other sexual
conduct outside marriage, and courts will be hesitant
to overrule the decisions of the school board.
Age
The Age Discrimination in Employment Act of
1967, with its subsequent amendments, provides
protection for teachers over the age of 40 against age
discrimination. Under this act, age may not be the
sole factor when a school district terminates the em-
ployment of a teacher. If a teacher charges a school
district with age discrimination, the school district
has the burden to show that some factor other than
age influenced its decision.
Pregnancy
The Pregnancy Discrimination Act of 1978 pro-
vides protection for teachers who are pregnant.
Under this act, a school district may not dismiss or
demote a pregnant teacher on the basis of her preg-
nancy, nor may a district deny a job or deny a promo-
tion to a pregnant teacher on the basis of her preg-
nancy.
State and Local Laws Regarding Teachers’
Rights
Each state provides laws governing education
agencies, hiring and termination of teachers, tenure
of teachers, and similar laws. Teachers should con-
sult with statutes and education regulations in their
respective states, as well as the education agencies
that enforce these rules, for additional information
regarding teachers’ rights. Moreover, teachers
should review their contracts, COLLECTIVE BARGAINING
AGREEMENT, and/or employee handbook for specific
provisions that may have been included in an agree-
ment.
The information below summarizes the grounds
on which a state may revoke or suspend a teaching
certificate or on which a district may dismiss or sus-
pend a teacher.
ALABAMA: Teacher’s certificate may be revoked for
immoral conduct, or unbecoming or indecent behav-
ior. Teachers may be dismissed or suspended on
similar grounds, except that tenured teachers may
not be suspended or terminated on political
grounds.
ALASKA: Teacher’s certificate may be revoked or sus-
pended for incompetency, immorality, substantial
noncompliance with school laws or regulations, vio-
lations of ethical or professional standards, or viola-
tions of contractual obligations. Teachers may be dis-
missed or suspended by local school boards on
similar grounds.
ARIZONA: Teacher’s certificate may be revoked or
suspended for immoral or unprofessional conduct,
evidence of unfitness to teach, failure to comply with
various statutory requirements, failure to comply
with student disciplinary procedures, teaching sec-
tarian books or doctrine, or conducting religious ex-
ercises. Teachers may be dismissed or suspended on
similar grounds. Probationary employees may be dis-
missed when they are unsuited or not qualified. Per-
manent employees may be discharged only for
cause, and are entitled to due process.
ARKANSAS: Teacher’s certificate may be revoked for
cause. Teachers may be dismissed for any cause that
is not arbitrary, capricious, or discriminatory.
CALIFORNIA: Permanent teachers may be dismissed
for immoral or unprofessional conduct, dishonesty,
incompetency, evident unfitness for service, a physi-
cal or mental condition unfitting for a teacher to in-
struct or associate with children, persistent violation
of school laws or regulations, conviction of a FELONY
or crime involving moral turpitude, or alcoholism or
drug abuse rendering teacher unfit for service.
Teacher’s certificate may be revoked or suspended
on the same grounds as those for dismissal or sus-
pension.
COLORADO: Teacher’s certificate may be annulled,
revoked, or suspended if certificate has been ob-
tained through fraud or misrepresentation; teacher
is mentally incompetent; teacher violates statutes or
regulations regarding unlawful sexual behavior, use
of controlled substances, or other violations. Teach-
ers may be dismissed on similar grounds.
CONNECTICUT: Teacher’s certificate may be re-
voked if certificate has been obtained through fraud
or misrepresentation; teacher has neglected duties
or been convicted of a crime involving moral turpi-
tude; teacher has been neglectful of duties; or other
due and sufficient cause exists. Teachers may be dis-
missed on similar grounds.
EDUCATION—TEACHERS’ RIGHTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 517
DELAWARE: Teacher’s certificate may be revoked for
immorality, misconduct in office, incompetency, will-
ful neglect of duty, or disloyalty. Teachers may be dis-
missed or suspended on similar grounds.
FLORIDA: Teacher’s certificate may be revoked or
suspended for obtaining certificate by fraud, incom-
petence, gross immorality or an act involving moral
turpitude, revocation of a teaching certificate in an-
other state, conviction of a crime other than a minor
traffic violation, breach of teaching contract, or delin-
quency in CHILD SUPPORT obligations. Teachers may
be dismissed or suspended on similar grounds.
GEORGIA: Teachers may be dismissed for incompe-
tency, insubordination, willful neglect of duties, im-
morality, encouraging students to violate the law,
failure to secure and maintain necessary educational
training, and any other good and sufficient cause.
HAWAII: Teacher’s certificate may be revoked for
conviction of crime other than traffic offense or if the
employer finds that teacher poses a risk to the
health, safety, or well being of children. Teacher may
be dismissed for inefficiency, immorality, willful vio-
lations of policies and regulations, or other good and
JUST CAUSE.
IDAHO: Teacher’s certificate may be revoked for
gross neglect of duty, incompetence, breach of con-
tract, making a false statement on application for cer-
tificate, conviction of a crime involving moral turpi-
tude or drugs or a felony offense involving children.
Grounds for revocation of a teacher’s certificate are
also grounds for dismissal.
ILLINOIS: Teacher’s certificate may be revoked or
suspended for immorality, health condition detri-
mental to students, incompetence, unprofessional
conduct, neglect of duty, willful failure to report CHILD
ABUSE, conviction of certain sex or narcotics offenses,
or other just cause. Teachers may be dismissed on
similar grounds.
INDIANA: Teacher’s certificate may be revoked for
immorality, misconduct in office, incompetency, will-
ful neglect of duty, or improper cancellation of a con-
tract. Permanent and semi-permanent teachers may
be dismissed on similar grounds.
IOWA: Teacher’s certificate may be revoked for any
cause that would have permitted refusal to grant the
certificate. Teachers may be dismissed for just cause.
KANSAS: Teacher’s certificate may be revoked for im-
morality, gross neglect of duty, annulling a written
contract, or any other cause that would have justified
refusal to grant the certificate.
KENTUCKY: Teacher’s certificate may be revoked for
immorality, misconduct in office, incompetency, will-
ful neglect of duty, or submission of false informa-
tion. Teachers may be dismissed or suspended on
similar grounds.
LOUISIANA: Permanent teachers may be dismissed
for incompetence, dishonest, willful neglect of duty,
or membership or contribution to an unlawful orga-
nization.
MAINE: Teacher’s certificate may be revoked for evi-
dence of child abuse, gross incompetence, or fraud.
Teachers may be dismissed on similar grounds.
MARYLAND: Teachers may be dismissed or suspend-
ed for immorality, misconduct in office, insubordina-
tion, incompetency, or willful neglect of duty.
MASSACHUSETTS: Teacher’s certificate may be re-
voked for cause. Teachers may be dismissed for inef-
ficiency, incapacity, conduct unbecoming of a teach-
er, insubordination, failure to satisfy teacher
performance standards, or other just cause.
MICHIGAN: Teacher’s certificate may be revoked or
suspended for conviction of SEX OFFENSES and crimes
involving children. Teachers may be dismissed for
reasonable and just causes or failure to comply with
school law.
MINNESOTA: Teacher’s certificate may be revoked
or suspended for immoral character or conduct, fail-
ure to teach the term of a contract without just
cause, gross inefficiency, willful neglect of duty, fail-
ure to meet requirements for licensing, or fraud or
misrepresentation in obtaining a license. Teachers
may be dismissed on similar grounds.
MISSISSIPPI: Teachers may be dismissed or suspend-
ed for incompetency, neglect of duty, immoral con-
duct, intemperance, brutal treatment of a pupil, or
other good cause.
MISSOURI: Teacher’s certificate may be revoked or
suspended for incompetency, cruelty, immorality,
DRUNKENNESS, neglect of duty, annulling a written
contract without consent from the local board, or
conviction of a crime involving moral turpitude.
Teachers may be dismissed on similar grounds.
MONTANA: Teacher’s certificate may be revoked or
suspended for false statements on an application for
the certificate, any reason that would have disquali-
EDUCATION—TEACHERS’ RIGHTS
518 GALE ENCYCLOPEDIA OF EVERYDAY LAW
fied the person from receiving a certificate, incompe-
tency, gross neglect of duty, conviction of a crime in-
volving moral turpitude, or nonperformance of an
employment contract. Teachers may be dismissed
on similar grounds.
NEBRASKA: Teacher’s certificate may be revoked for
just cause, including incompetence immorality, in-
temperance, cruelty, certain crimes, neglect of duty,
unprofessional conduct, physical or mental incapaci-
ty, or breach of contract. Teachers may be dismissed
for just cause, as defined by statute.
NEVADA: Teacher’s certificate may be revoked for
immoral or unprofessional conduct, unfitness for
service, physical or mental incapacity, conviction of
a crime involving moral turpitude or sex offenses, ad-
vocacy of the overthrow of the government, persis-
tent refusal to obey rules, or breach of a teaching
contracts. Teachers may be dismissed or suspended
on similar grounds.
NEW HAMPSHIRE: Teachers may be dismissed for
immorality, incompetence, failure to conform to reg-
ulations, or conviction of certain crimes.
NEW JERSEY: Teacher’s certificate may be revoked
if teacher is a noncitizen; certificate may be suspend-
ed if teacher breaches contract. Teachers may be dis-
missed on similar grounds.
NEW MEXICO: Teacher’s certificate may be revoked
or suspended for incompetency, immorality, or any
other good and just cause. Teachers may be dis-
missed for good cause.
NEW YORK: Teacher’s certificate may be revoked if
teacher is unfit to teach due to moral character or if
teacher fails to complete a school term without good
cause. Teachers may be dismissed on similar
grounds.
NORTH CAROLINA: Teachers may be dismissed for
inadequate performance, immorality, insubordina-
tion, neglect of duty, physical or mental incapacity,
HABITUAL or excessive use of alcohol or other con-
trolled substances, or conviction of a crime involving
moral turpitude.
NORTH DAKOTA: Teacher’s certificate may be re-
voked or suspended for any cause that would permit
refusal to issue the certificate, incompetency, immo-
rality, intemperance, cruelty, commission of a crime,
refusal to perform duties, violation of professional
codes, breach of teacher contract, or wearing reli-
gious garb. Teachers may be dismissed on similar
grounds.
OHIO: Teacher’s certificate may be revoked for in-
temperance, immorality, incompetence, NEGLIGENCE,
or other conduct unbecoming of the position.
Teachers may be dismissed on similar grounds, in-
cluding assisting a student to cheat on an achieve-
ment, ability, or proficiency test.
OKLAHOMA: Teachers may be dismissed for immo-
rality, willful neglect of duty, cruelty, incompetency,
teaching disloyalty to the U. S. government, moral
turpitude, or criminal sexual activity.
OREGON: Teacher’s certificate may be revoked or
suspended for conviction of certain crimes (includ-
ing sale or possession of a controlled substance),
gross neglect of duty, gross unfitness, or wearing reli-
gious dress at school. Teachers may be dismissed or
suspended on similar grounds.
PENNSYLVANIA: Teacher’s certificate may be re-
voked for incompetency, cruelty, negligence, immo-
rality, or intemperance. Teachers may be dismissed
on similar grounds.
RHODE ISLAND: Teacher’s certificate may be re-
voked, or teacher may be dismissed, for good and
just cause.
SOUTH CAROLINA: Teacher’s certificate may be re-
voked for just cause, including incompetence, willful
neglect of duty, willful violation of state board rules,
unprofessional conduct, drunkenness, cruelty,
crime, immorality, conduct involving moral turpi-
tude, dishonesty, evident unfitness, or sale or pos-
session of narcotics. Teachers may be dismissed on
similar grounds.
SOUTH DAKOTA: Teacher’s certificate may be re-
voked or suspended for any cause that would have
permitted issue of the certificate, violation of teach-
er’s contract, gross immorality, incompetency, fla-
grant neglect of duty; or conviction of a crime involv-
ing moral turpitude. Teachers may be dismissed on
similar grounds.
TENNESSEE: Teacher’s certificate may be revoked if
teacher is guilty of immoral conduct. Teachers may
be dismissed or suspended on similar grounds, in-
cluding incompetence, inefficiency, neglect of duty,
unprofessional conduct, and insubordination.
TEXAS: Teacher’s certificate may be revoked or sus-
pended if teacher’s activities are in violation of the
law, the teacher is unworthy to instruct the youth of
the state, the teacher abandons his or her contract,
or the teacher is convicted of a crime. Teachers may
be dismissed or suspended on similar grounds.
EDUCATION—TEACHERS’ RIGHTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 519
UTAH: Teacher’s certificate may be revoked or sus-
pended for immoral or incompetent conduct, or evi-
dence of unfitness for teaching. Teachers may be dis-
missed for cause.
VERMONT: Teacher’s certificate may be revoked for
cause. Teachers may be dismissed for just and suffi-
cient cause. Teachers may be suspended for incom-
petence, conduct unbecoming of a teacher, failure to
attend to duties, or failure to carry out reasonable or-
ders and directions of superintendent or board.
VIRGINIA: Teachers may be dismissed for incompe-
tency, immorality, noncompliance with school laws
or rules, certain DISABILITY, and convictions of certain
crimes. Teachers may be suspended for good and
just cause when the safety or welfare of children are
threatened.
WASHINGTON: Teacher’s certificate may be revoked
for immorality, violation of a written contract, intem-
perance, a crime involving child neglect or abuse, or
unprofessional conduct. Teachers may be dismissed
for sufficient cause.
WEST VIRGINIA: Teacher’s certificate may be re-
voked for drunkenness; untruthfulness; immorality;
unfitness due to physical, mental or moral defect; ne-
glect of duty; using FRAUDULENT, unapproved, or in-
sufficient credit; or other cause. Teachers may be dis-
missed or suspended on similar grounds.
WISCONSIN: Teacher’s certificate may be revoked
for incompetency, immoral conduct, or conviction of
certain felonies. Tenured teachers may be dismissed
on similar grounds.
WYOMING: Teacher’s certificate may be revoked or
suspended for incompetency, immorality, other rep-
rehensible conduct, or gross neglect of duty. Teach-
ers may be dismissed on similar grounds.
Additional Resources
Deskbook Encyclopedia of American School Law. Oak-
stone Legal and Business Publishing, 2001.
Education Law. Rapp, James A., Lexis Publishing, 2001.
Education Law, Second Edition. Imber, Michael, and Tyll
Van Geel, Lawrence Erlbaum Associates, 2000.
The Law of Public Education, Fourth Edition. Reutter, E.
Edmund, Jr., Foundation Press, 1994.
Private School Law in America, Twelfth Edition. Oak-
stone Legal and Business Publishing, 2000.
School Law and the Public Schools: A Practical Guide for
Educational Leaders. Essex, Nathan, Allyn and Bacon,
1999.
Teachers and the Law. Fischer, Louis, David Schimmel,
and Cynthia Kelly, Addison Wesley Longman, 1999.
U. S. Code, Title 42: Public Health and Welfare, chapter
21: Civil Rights. U.S. House of Representatives, 1999.
Available at: http://uscode.house.gov/title_42.htm
Organizations
American Association of School
Administrators (AASA)
1801 N. Moore Street
Arlington, VA 22209 USA
Phone: (703) 528-0700
Fax: (703) 841-1543
URL: http://www.aasa.org/
Primary Contact: Paul Houston, Executive Director
American Federation of Teachers (AFT)
555 New Jersey Avenue, NW
Washington, DC 20001 USA
Phone: (202) 879-4400
URL: http://www.aft.org/
Education Law Association (ELA)
300 College Park
Dayton, OH 45469 USA
Phone: (937) 229-3589
Fax: (937) 229-3845
URL: http://www.educationlaw.org/
Primary Contact: R. Craig Wood, President
Education Policy Institute (EPI)
4401-A Connecticut Ave., NW
Washington, DC 20008 USA
Phone: (202) 244-7535
Fax: (202) 244-7584
URL: http://www.educationpolicy.org/
Primary Contact: Charlene K. Haar, President
National Education Association (NEA)
1201 16th Street, NW
Washington, DC 20036 USA
Phone: (202) 833-4000
URL: http://www.nea.org/
Primary Contact: Bob Chase, President
EDUCATION—TEACHERS’ RIGHTS
520 GALE ENCYCLOPEDIA OF EVERYDAY LAW
EDUCATION
TRUANCY
Sections within this essay:
• Background
• The Rationale for Truancy Laws
• Extent of the Truancy Problem
• Correlates of Truancy
• Enforcing Truancy Laws
• Getting Tough on Parents
• Truancy and Home Schooling
• Examples of State Truancy Laws
• Additional Resources
Background
Truancy, also called skipping school, is defined by
all states as unexcused absences from school without
the knowledge of a parent or GUARDIAN. It has been
romanticized through literature and films by charac-
ters such as Tom Sawyer and Ferris Bueller as the
harmless mischief juveniles do on sunny days. But
the fact is juveniles who are school-aged are required
by all states to attend school, whether that school be
public, private, parochial, or some other educational
forum. Truancy is, therefore, a STATUS OFFENSE as it
only applies to people of a certain age. The school
age of a juvenile varies from state to state, with most
states requiring attendance either from age six to age
17 or from age five to 18. There are a number of ex-
ceptions, such as Pennsylvania, which denotes
school age as between eight and 17 and Illinois
which denotes school age as between seven and 16.
The number of days required in order for a juve-
nile to be labeled ‘‘truant,’’ varies by school, school
district, and state. State legislation tends to provide
some guidelines for school districts by setting a maxi-
mum number of absences allowed. School districts
then tighten these guidelines. For example, in Penn-
sylvania, a truant is a school-aged juvenile who is ab-
sent from school more than three times after a notice
of truancy has been sent to the juvenile’s home. In
Louisiana, a juvenile is deemed truant after the fifth
unexcused absence from school, provided the ab-
sences occur in a single month. Many school districts
define truancy as any unexcused absence, where un-
excused means the student has left school property
without parental or school permission.
The Rational for Truancy Laws
Compulsory education began about sixty years
ago and was strongly influenced by labor unions who
were trying to keep children from working. The par-
ticipation of children in the labor force kept adult
wages low. Compulsory attendance in schools also
lifted some authority of parents over their children
to the state, as parents could no longer force their
children to work. The state’s authority in school at-
tendance was underscored in Prince v. Massachu-
setts (1944). In this case, the Supreme Court decided
that the state had the right to uphold CHILD LABOR
LAWS and parents’ authority could not preempt that
of the state. Therefore, children had to attend school
whether their parents supported education or not.
In recent research conducted by the Office for Ju-
venile Justice and Delinquency Prevention (OJJDP,
2001), links between truancy and other, more seri-
ous forms of delinquency have been delineated. For
example, the links between truancy and substance
abuse, VANDALISM, auto theft, and gang behavior have
GALE ENCYCLOPEDIA OF EVERYDAY LAW 521
all been established in criminology literature (see
Loeber & Farrington, 2000 for details). The link be-
tween truancy and later, violent offending has been
established in studies that examine male criminality
(e.g., see Ingersoll & LeBoeuf, 1997). In turn, adults
who were truants as juveniles tend to exhibit poorer
social skills, have lower paying jobs, are more likely
to rely on welfare support, and have an increased
likelihood of INCARCERATION (Hawkins & Catalano,
1995).
Residents have also put pressure on schools and
lawmakers to tighten truancy laws as groups of
young people loitering in public during school hours
often appear threatening. In Tacoma, Washington,
an increase in truancy was associated with an in-
crease in juvenile perpetrated property crimes, such
as BURGLARY and vandalism. This increase in juvenile
daytime crime led to a program targeting the en-
forcement of truancy laws in this state.
Those school districts with the highest truancy
rates also have the lowest academic achievement
rates. This link is usually established through truancy
policies which deem automatic failure in courses
where students are regularly absent. Therefore, stu-
dents who do not attend school on a regular basis
are unlikely to graduate from high school. Between
1992 and 2002 there have been approximately three
million young adults each year aged between 16 and
24 who have either failed to complete high school or
not enrolled in high school (National Center for Edu-
cation Statistics, 2001). This number represents
about 11 percent of young adults in the United
States. Within this group, there are a disproportion-
ate number of minority students; for example, 30
percent of Hispanics are not completing high school
(NCES, 2001). This number increases to 44 percent
if the students counted were born outside of the
United States (NCES, 2001). Thus, the recency of
IMMIGRATION seems to have important implications
in the study of high school dropout rates. Research-
ers have linked this correlation to parental attitudes
toward education. However, coming from countries
where education is not highly valued, parents may
not encourage their children to attend school, in-
creasing the truancy rate and also increasing the
drop out rate (Alexander et al., 1997).
Failure at high school not only affects the individ-
ual, but it also affects society. Affected students can-
not attend college, are more likely to have low paying
jobs and feel political apathy; they then can consti-
tute a loss in tax revenue, may experience health
problems, and place a strain on social services
(Rosenfeld, Richman and Bowen, 1998). A recent U.
S. Department of Labor study shows that 6.7 percent
of adults with no high school diploma are likely to
be unemployed, while only 3.5 percent of adults with
a high school diploma are likely to be unemployed.
With a bachelor’s degree, only 1.8 percent of adults
are likely to be unemployed (U. S. Dept. of Labor,
1999).
Extent of the Truancy Problem
Although there are currently no national statistics
available on the extent of the truancy, many states
and cities do keep their own statistics which are
often used to influence policy. A recent national
study of school principals revealed that truancy was
listed as one of the top five concerns by the majority
of respondents (Heaviside, et al., 1998). In Chicago,
a study conducted during the 1995-1996 school year
indicated that the average 10th grader missed six
weeks of instruction (Roderick et. al., 1997). Recent
OJJDP research suggests that the number of truants
are highest in inner city, public schools, where there
are large numbers of students and where a large per-
centage of the student population participate in the
free lunch program (OJJDP, 2001).
In terms of court processing, the number of truan-
cy cases referred to juvenile courts is fairly small; for
example, in 1998, about 28 percent of referred status
offenses were truancies, which is an 85 percent in-
crease compared with the previous ten years. How-
ever, this number is expected to increase dramatical-
ly given recent changes to truancy laws. Interestingly,
the OJJDP (2001) reports that females are just as like-
ly as males to be adjudicated for truancy.
Correlates of Truancy
The following factors have been found to have as-
sociations with truancy in that the likelihood of tru-
ancy is increased given the presence of these vari-
ables. First are family factors, such as lack of
supervision, physical and psychological abuse, and
failure to encourage educational achievement. Sec-
ond are school factors which can range from incon-
sistent enforcement of rules to student boredom
with curriculum. Economic factors are a third corre-
late, and these could be factors such as high family
mobility or parents with multiple jobs. Last are stu-
dent characteristics such as drug and alcohol abuse,
ignorance of school rules, and lack of interest in edu-
cation.
EDUCATION—TRUANCY
522 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Enforcing Truancy Laws
In all states, the first body responsible for enforc-
ing truancy laws is usually the school. School offi-
cials, such as school truancy officers, teachers, and
school principals, refer truancy cases to juvenile
court JURISDICTION. However, if truant individuals are
found in a public area, they may be detained by po-
lice or taken to a detention facility.
Arizona was the first state in the United States to
implement and enforce a get-tough approach to tru-
ancy laws. Research on truancy in Arizona began in
the early 1990s. Pima County had the highest truancy
rate in the state during this time period; in fact, tru-
ants from this county made up half of all truants in
the state. Because of the extent of the problem, Pima
County began a program called ACT Now (Abolish
Chronic Truancy) which aimed to strictly enforce
state and district truancy laws and offer a diversion
program to address the root causes of truancy. The
program also sought to provide serious sanctions for
both juveniles and their parents if truancy persisted
or if conditions specified by the diversion program
were not met. School districts, school administra-
tors, law enforcement personnel, and community
agencies are involved in this program.
Once a student has one unexcused absence from
school, a letter is sent home to the student’s parents
explaining the consequences of truancy. After a third
unexcused absence, the juvenile is referred to the
Center for Juvenile Alternatives (CJA) which makes
a recommendation to the juvenile court. A letter is
sent to the juvenile’s parents explaining the diver-
sion program or the alternative court imposed sanc-
tions, and the parents decide which course of action
they would prefer.
The diversion program consists of counseling,
parenting classes, support groups, etc. Very often
parents have no idea that their child is missing
school, or they do not seem to care. Support groups
and classes teach parents about the value of educa-
tion and also help parents communicate more effec-
tively with their teenagers. In their report, the CJA
will identify which type of intervention is best for the
family, and the juvenile and his or her parents will be
referred accordingly. Both parents and the juvenile
must sign an agreement promising to abide by the
conditions of the diversion program. Successful
completion of the program results in the truancy
case being dismissed.
The ACT Now program has been formally evaluat-
ed by the American Prosecutors Research Institute
(APRI), and each school district involved in the pro-
gram has shown a steady decrease in the number of
truancies each year. In the district with the highest
percentage of truancies, ACT Now helped reduce
truancies by 64 percent between 1996 and 1998. This
program and versions of it are financially supported
by the Department of Justice and have been imple-
mented in many other states.
Getting Tough on Parents
Many states also hold parents accountable for
their children’s truancy, and Arizona was the first
state to implement such laws. The rationale behind
this movement was to coerce parents into taking an
active role in their children’s education and for all
parties to take truancy laws and school attendance
seriously. In Virginia, parents can be fined and jailed
for failure to adequately supervise school-aged chil-
dren, which includes making sure they are attending
school. In Pennsylvania, parents can also be fined
and jailed if they have not taken reasonable steps to
ensure their child is attending school. In Texas and
many other states, similar laws have recently been
passed.
Truancy and Home Schooling
The popularity of home schooling has increased
dramatically between 1997 and 2002, and the Depart-
ment of Education estimates that between 700,000
and two million children were home schooled dur-
ing the 1999-2000 academic year. This fact has a large
impact on the enforcement of truancy laws, as home
schooled children may be out in public during
school hours and could be apprehended by police.
In many states, the right to home school children is
protected by the state’s constitution. For example,
the constitution of the state of Oklahoma reads:
THE LEGISLATURE SHALL PROVIDE FOR THE COM-
PULSORY ATTENDANCE AT SOME PUBLIC OR OTHER
SCHOOL, UNLESS OTHER MEANS OF EDUCATION ARE
PROVIDED, OF ALL THE CHILDREN IN THE STATE WHO
ARE SOUND IN MIND AND BODY, BETWEEN THE AGES
OF EIGHT AND 16 YEARS, FOR AT LEAST THREE
MONTHS IN EACH YEAR.(Article XIII)
Many states, like Oklahoma, have not yet resolved
how home schooling affects the enforcement of tru-
ancy laws. For example, in Illinois, there are currently
no provisions for home schooled children under the
law, and these children would be in violation of the
EDUCATION—TRUANCY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 523
state’s truancy laws if those laws were enforced. The
only exceptions to the truancy laws, that is, those cir-
cumstances in which school-aged individuals are not
required to attend a public school in Illinois are:
those attending private or parochial schools, those
who are physically or mentally unable to attend
school, those females who are pregnant or have
young children, those who are lawfully employed,
and those individuals who are absent for religious
holidays.
The regulation of home schooling thus varies
greatly by state. Some states have very little regula-
tion and do not require parents to contact the state
to inform officials that children will be home
schooled. Some of these states are Arkansas, Indiana,
Illinois, Oklahoma, Michigan, Missouri, and New Jer-
sey. Other states, such as California, Arizona, New
Mexico, Alabama, and Kentucky, have low regulation
and require that parents who are home schooling
their children report this fact to the state. Other
states, such as Virginia, North Carolina, South Caroli-
na, Georgia, Colorado, Oregon, Florida, Tennessee,
Arkansas, and Louisiana, have moderate regulation
in which parents must report test scores and student
evaluations to the state. Some states, such as New
York, Pennsylvania, West Virginia, Maine, Rhode Is-
land, Massachusetts, Washington, and Utah, require
parents to submit test scores and evaluations of stu-
dents and also professional evaluations of teachers
and curriculum for approval. The level of regulation
in each state affects how truancy laws can be en-
forced. If the state has no record of students being
home schooled, it is difficult to enforce truancy laws
across the board.
Examples of State Truancy Laws
Although states vary in their responses to truancy,
their laws in defining truancy are fairly similar. Below
are some examples for various states.
CALIFORNIA: Any school-aged child who is absent
from school without valid excuse three full days in
one school year or tardy or absent for more than any
30-minute period during one school day on three oc-
casions during the school year or any combination
thereof is considered truant and should be reported
to the supervisor of the school district.
CONNECTICUT: A truant is a child between the ages
of five and 18 who is enrolled in any public or private
school and has four unexcused absences in a month
or 10 in any school year. A HABITUAL truant is a child
of the same age who has 20 unexcused absences
from school during a school year.
ILLINOIS: A truant is defined as any child subject to
compulsory schooling and who is absent from
school unexcused. Absences that are excused are de-
termined by the school board. A chronic or habitual
truant is a school-age child who is absent without
valid cause for 10 percent out of 180 consecutive
days. The truant officer in Illinois is responsible for
informing parents of truancy and referring the case
to juvenile court.
LOUISIANA: Any student between the ages of seven
and seventeen is required to attend school. A stu-
dent is considered truant when the child has been
absent from school for five school days in schools op-
erating on a semester system and for ten days in
schools not operating on a semester basis. A student
may be referred to juvenile court for habitual ab-
sence when all reasonable efforts by school adminis-
trators have failed and there have been five unex-
cused absences in one month. The school principal
or truancy officer shall file a report indicating dates
of absences, contacts with parents, and other infor-
mation.
VIRGINIA: Any student between the ages of five and
18 is subject to compulsory school attendance. After
a pupil has been absent for five days during the
school year without a valid excuse, a notice is sent
to parents outlining the consequences of truancy. A
conference with school officials and parents is ar-
ranged within fifteen school days of the sixth ab-
sence. Once a truant has accumulated more than
seven absences during the school year, the case will
be referred to juvenile and domestic relations court.
Additional Resources
Current population survey, March 2000. U.S. Census Bu-
reau, Government Printing Office, 2001.
Dropout Rates in the United States: 1999. National Center
for Education Statistics, 2001. Available on-line at http://
nces.gov/pubs2001.htm, [Accessed October 28, 2001].
From First Grade Forward: Early Foundations of High
School Dropout. Alexander, Karl L., Entwisle, Doris R
and Horsey, Carrie S. (1997). Sociology of Education,
70, (2), 87-107.
Habits Hard to Break: A New Look at Truancy in Chica-
go’s Public High Schools. M. Roderick, J. Chiong, M.
Arney, K. DaCosta, M. Stone, L. Villarreal- Sosa and E.
Waxman. Research in Brief: University of Chicago,
School of Social Service Administration, 1997.
EDUCATION—TRUANCY
524 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Manual to Combat Truancy. U. S. Department of Educa-
tion and the Department of Justice, 1996. Available on-
line at http://www.ed.gov/pubs/Truancy/index.html
[Accessed October 28, 2001].
Reaching Out to Youth Out of the Education Mainstream.
S. Ingersoll and D. LeBoeuf. Office of Juvenile Justice
and Delinquency Prevention, 1997.
Risk Focused Prevention: Using the Social Development
Strategy. J. D. Hawkins, and R. Catalano. Developmen-
tal Research and Programs Inc., 1995.
Supportive Communication and School Outcomes for Ac-
ademically At-Risk and Other Low Income Middle
School Students. Lawrence, B. Rosenfeld, Jack, M. Rich-
man, and Gary, L. Bowen (1998). Communication Edu-
cation, 47, (4), 309- 325.
Truancy Reduction: Keeping Students in School. Myriam
L. Baker, Jane N. Sigmon and M. Elaine Nugent. Office
of Juvenile Justice and Delinquency Prevention, 2001.
Violence and Discipline Problems in U. S. Public Schools:
1996-1997. S. Heaviside, C. Rowand, C. Williams and E.
Farris. U. S. Department of Education, 1998.
Young Children who Commit Crime: Epidemiology, De-
velopmental Origins, Risk Factors, Early Interven-
tions, and Policy Implications. Richard Loeber and
David Farrington (2000). Development and Psychopa-
thology, 12 (4), 737- 762.
Organizations
Home School Legal Defense Association
P.O. Box 3000
Purcellville, VA 20134-9000 USA
URL: http://www.hslda.org
Kansas City In School Truancy Prevention
Project
1211 McGee Street
Kansas City, MO 64106 USA
Phone: (816) 418-7946
URL: http://www.kcmsd.k12.mo.us/truancy/
index.html
National Home Education Research Institute
P.O. Box 13939
Salem, OR 97309 USA
Phone: (503) 364-1490
Fax: (503) 364-2827
Project Intercept
1101 South Race Street
Denver, CO 80210 USA
Phone: (303) 777-5870
National Center for Juvenile Justice
710 Fifth Avenue, Suite 3000
Pittsburgh, PA 15219 USA
Phone: (412) 227-6950
Fax: (412) 227-6955
URL: http://brendan.ncjfcj.unr.edu/homepage/ncjj/
ncjj2/index.html
Office of Juvenile Justice and Delinquency
Prevention U. S. Department of Justice
Washington, DC USA
URL: http://www.ojjdp.ncjrs.org
U. S. Department of Education, OERI At Risk
555 New Jersey Avenue NW, Room 610
Washington, DC 20005 USA
Phone: (202) 208-5521
EDUCATION—TRUANCY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 525
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EDUCATION
TYPES OF SCHOOLS
Sections within this essay:
• Background
• Public Schools
• Private and Parochial Schools
• Charter Schools
- Privatization
• Home Schooling
• Vocational Education
• Distance Learning
• Additional Resources
Background
For parents and students alike, the type of educa-
tion available within their community is critically im-
portant. Many people, in fact, choose the communi-
ties in which they live on the basis of the quality of
the local schools. Some parents choose to send their
children to public school, believing that public edu-
cation provides a more well-rounded experience for
children. Others feel that private education offers
students a more varied and creative course of study.
Those who wish to instill within their children a
sense of their religion may choose religious (often
called parochial) schools; these schools provide reli-
gious instruction along with the general academic
program. In recent years, a growing number of par-
ents have turned to homeschooling, which they feel
allows them more control over what and how their
children learn.
Each system has its advantages and drawbacks;
choosing the best system is determined by a number
of considerations. For example, a child who lives in
an affluent community with a well- respected public
school system will likely want to take advantage of
this free education. A child in a poorer community,
or one who needs more individualized attention,
may fare better in a private school, where classes are
smaller and teachers can focus more fully on specific
issues. Children in small rural communities, who
may have to travel dozens of miles to go to school,
may profit more by being home-schooled, or they
may be able to hook up to schools via technology
(the concept known as distance learning). How a
child is educated depends on his or her abilities and
needs, the expectations of parents, and the available
choices. For parents and children to make informed
choices, they need to understand what each type of
school offers.
Public Schools
In an address to educators in 1948, the statesman
Adlai Stevenson said, ‘‘The most American thing
about America is the free common school system.’’
The concept of providing free public education to all
children was born in Boston in 1635 with the estab-
lishment of a public institution that still exists today
as the Boston Latin School. By the time of the Ameri-
can Revolution, free public schools were quite com-
mon in the northern colonies; in the South, school-
ing was done primarily at home until after the Civil
War. By the end of the nineteenth century, public ed-
ucation was available to children across the country.
Then, as now, the quality of education varied, some-
times dramatically, from region to region. Today,
public school curricula are regulated by state and
local governments.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 527
According to the National Education Association
(NEA), there were 14,568 public school districts in
the United States in academic year 1998-99. There
are approximately 89,500 public schools in the Unit-
ed States; nearly 63,000 of those schools are elemen-
tary (kindergarten through sixth grade). The rest are
mostly secondary (middle and high schools), al-
though a small number of schools go from kindergar-
ten to 12th grade (K-12). These schools employ
some 2.7 million teachers and serve more than 53
million students.
Public schools are funded primarily by state and
local sources; the federal government historically has
provided less than 10 percent of public education
funding. Each school district has a board of educa-
tion or similar administrative group to oversee the
schools’ performance; each state has an education
department that sets academic standards for the
school districts to follow.
The public school experience varies widely from
district to district. A large city such as New York or
Los Angeles has to address the education of hun-
dreds of thousands of students with extraordinarily
diverse needs. A small rural school district may have
only a few hundred students who all come from a
similar background. Affluent suburban communities
with more local funding may pay higher salaries to
attract the best teachers; this makes for strong subur-
ban school districts but leaves poorer areas under-
served. State governments do try to REDRESS this im-
balance (by giving more funds to poorer districts, for
example) but often they meet with limited success.
Private and Parochial Schools
Unlike public schools, private schools do not rely
on government funding. They are supported by tu-
ition, by grants from charitable organizations, and in
the case of religious schools, by religious institutions.
There are approximately 27,500 private schools in
the United States, with some 395,000 teachers serv-
ing about 6 million students. Private schools include
nonsectarian schools and religious schools covering
many denominations (the term parochial usually
denotes Catholic schools but can mean other Chris-
tian or Jewish institutions).
Tuition costs for private schools vary. As of 2002,
figures available from the National Center for Educa-
tion Statistics (NCES), indicated that nonsectarian
private schools were the most expensive and Catho-
lic schools were the least. Still tuition for school runs
into tens of thousands of dollars over the course of
a child’s school years. Why would parents send their
children to private schools when they have the op-
tion of sending them to public school for free?
For some, private school represents a stronger
curriculum than public education can offer and a
more personalized one as well. Public schools are
generally much larger than private schools, and class
size is also larger. Fewer students per teacher means
that the teacher can spend more time one-on-one
with each student.
The atmosphere in private and parochial schools
is also different, sometimes vastly so, from that of
public schools. A private school can focus its atten-
tion on a student’s particular talents, such as music
or science. As for parochial schools, they can provide
religious instruction that no public school would be
allowed to offer. This religions instruction is includ-
ed in a curriculum that is generally strong academi-
cally.
Not merely the educational experience but also
the social experience weighs in the minds of many
parents as well. Schools that are unsafe (which could
included anything from a building with antiquated
electrical and heating systems to a school with a high
rate of juvenile crime) make for a difficult atmo-
sphere in which to learn. In general, these problems
are more likely to develop in a public school than in
a private one.
Teacher salaries tend to be lower in private
schools, although some private schools offer teach-
ers perks such as free meals and even free housing
on campus. This gives private institutions more of a
competitive edge against public systems that can pay
quite well. Parents often perceive this as a sign that
private school teachers are more committed to
teaching than some of their public school counter-
parts.
Charter Schools
Charter schools are most simply described as a
cross between public and private schools. These
schools are often created by teacher and parent
groups who are dissatisfied with the bureaucracy
that surrounds public education. The rules and regu-
lations that shape a public school district, charter
proponents argue, can cripple innovation in the
schools. The result may be an uninspired and unin-
spiring educational program that fails to challenge
students or meet their true needs.
EDUCATION—TYPES OF SCHOOLS
528 GALE ENCYCLOPEDIA OF EVERYDAY LAW
The first charter school in the United States
opened in St. Paul, Minnesota in 1993. As of the be-
ginning of the school year in September 2001 there
were some 2,400 charter schools operating in 34
states and the District of Columbia, serving 576,000
students. (Three additional states, Indiana, New
Hampshire, and Wyoming, have charter school laws
on the books but had not established charter schools
by 2001.)
Typically, a charter school will be proposed by a
group consisting of teachers, parents, and communi-
ty leaders. Local and state organizations provide
funding for charter schools, approve their programs,
and monitor their quality. Charter schools are ‘‘pub-
lic’’ in this sense, but unlike traditional public
schools they are freed from traditional regulation. In
general, the number of students per charter school
is lower than in a traditional school, and there are
also more teachers per pupil.
Proponents of charter schools claim that the
structure not only enhances autonomy from oppres-
sive bureaucracy but also increases accountability.
Because they are monitored carefully, they have little
room to do poorly. If they fail to accomplish their
goal, they are closed. Moreover, because parents ac-
tively choose to send their children to charter
schools, the school administrators know that if they
fail to provide what they promise, parents and stu-
dents will go elsewhere.
Opponents of charter schools say that they are
merely private schools cloaked in a public-school
mantle, allowing like-minded individuals to opt out
of the public school system at the expense of those
schools. This makes it even harder, they maintain,
for public schools to excel. proponents counter that
charter schools create a healthy competition that
forces school districts to offer more and better ser-
vices to students in their traditional schools.
Privatization
One of the more controversial ideas in the public
school arena is whether to privatize public school
districts. This issue gained national attention in 2001
when the state of Pennsylvania initiated plans to take
over the Philadelphia city school district and contract
with a private firm to administer the city’s schools.
The move met with widespread opposition despite
the fact that Philadelphia public schools had been in
decline for some time. The main problem with allow-
ing a private firm to take control of a public school
district, say opponents, is that the emphasis will be
on cutting costs rather than enhancing education.
For-profit firms claim that they improve schools by
streamlining and cutting unnecessary costs. School
privatization has been tried in some districts, but the
long-term benefits or drawbacks remain to be seen.
Home Schooling
A growing number of parents are choosing to turn
away from public and private schools and instead ed-
ucate their children in their own homes. In 1999, the
most recent year for which NCES has figures, some
850,000 students between the ages of 5 and 17 were
being schooled at home. Approximately 697,000 of
these children are schooled completely in their
homes; the remaining 153,000 are schooled primari-
ly in their homes but also go part-time to a traditional
school.
In general, the makeup of a home-schooling fami-
ly is fairly traditional. Most of these families (80 per-
cent) are two-parent families, and most of them have
three or more children. Typically, one parent works
while the other assumes the primary role of teacher,
although the other parent may also be involved in
the education process as well.
The most common reason parents give for home-
schooling (a reason voiced by nearly all of them) is
that they feel they can provide a better education for
their children at home than the schools can. They
may feel that the local school’s curriculum is inade-
quate, or that it focuses on the wrong areas. Some
parents feel that traditional schools fail to teach val-
ues to children; they school their children at home
to provide a strong moral education. Or they may
school their children at home for religious reasons;
they may feel that the public school system is too
secular for their tastes. A small number of parents
turn to home schooling because they cannot afford
to send their children to a private school.
In some cases, parents who home-school their
children seek and receive a degree of public school
support in the form of supplies, curricular assistance,
and allowing home-schoolers to participate in the
school’s extracurricular programs. Frequently, the
parents of home-schoolers do not avail themselves
of these resources, preferring to keep the education
centered around the home classroom. Home-
schooled children are of course required to demon-
strate that they are learning at the proper education-
al level, and parents are expected to provide struc-
tured classes, homework, tests, and projects.
EDUCATION—TYPES OF SCHOOLS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 529
Vocational Education
Before the twentieth century, education for many
young people consisted of learning a trade, which
usually meant serving as an apprentice to an experi-
enced tradesman. Apprentices learned to be black-
smiths or cabinetmakers or carpenters. In some
smaller towns, children were apprenticed to profes-
sions such as law. Since the early twentieth century
public high schools have offered a version of these
apprenticeships in the form of vocational education
(also called occupational education). This includes
shop and home economics courses, as well as
courses geared toward specific occupations such as
electrician or automobile mechanic or cosmetolo-
gist.
Although the average high school student takes
fewer course-hours in occupational education today
than in the 1980s (4.68 in 1982; 3.99 in 1998), the
more specific programs held steady in the number
of course-hours students devoted.
Distance Learning
Distance learning (the use of telecommunications
technologies to broadcast classes from a central loca-
tion to remote locations) has become quite popular
among colleges and universities, particularly with
adult or continuing education courses. Since the late
1980s, it has also been used in elementary and high
schools. Through a program supported by the De-
partment of Education called the Star Schools Pro-
gram, some 1.6 million students in all 50 states were
receiving long-distance instruction by the beginning
of the twenty-first century.
The benefits of distance learning are clear: access
to lessons not otherwise available. This arrangement
is useful for students living in remote rural areas, but
it also proves effective in urban locations. While a dis-
tance learning experience is not the same as a per-
son-to-person lesson, it opens up avenues for new
experiences. Moreover, many distance learning pro-
grams are interactive and thus engage children in a
way designed to hold their attention. As technology
becomes more efficient and less expensive, it is likely
that distance learning will make up a growing ele-
ment of elementary and secondary education.
Additional Resources
Charter Schools: The Parents’ Complete Guide. Birkett,
Frederick A., Prima Publishing, 2000.
Education in a Free Society. Machan, Tibor R., Hoover In-
stitution Press, 2000.
How to Pick a Perfect Private School. Unger, Harlow G.,
Facts on File Publications, 1999.
The Manufactured Crisis: Myths, Frauds, and the Attack
on America’s Public Schools. Berliner, David C., and
Bruce J.Biddle, Addison-Wesley, 1995.
Parents’ Guide to Alternatives in Education. Koetzsch,
Ronald E., Shambhala, 1997.
The Struggle for Control of Public Education: Market Ide-
ology versus Democratic Values. Engel, Michael, Tem-
ple University Press, 2000.
Unofficial Guide to Homeschooling. Ishizuke, Kathy, IDG
Books Worldwide, 2000.
Organizations
Center for Education Reform
1001 Connecticut Avenue NW, Suite 204
Washington, DC 20036 USA
Phone: (202) 822-9000
Fax: (202) 822-5077
URL: http://www.edreform.com
Primary Contact: Jeanne Allen, President
National Association of Elementary School
Principals (NAESP)
1615 Duke Street
Alexandria, VA 22314 USA
Phone: (703) 684-3345
URL: http://www.naesp.org
Primary Contact: Vincent L. Ferrandino, Executive
Director
National Association of Secondary School
Principals (NASSP)
1904 Association Drive
Reston, VA 20191 USA
Phone: (703) 860-0200
URL: http://www.nassp.org
Primary Contact: Gerald N. Tirozzi, Executive
Director
National Education Association (NEA)
1201 16th Street NW
Washington, DC 20036 USA
Phone: (202) 833-4000
URL: http://www.nea.org
Primary Contact: Bob Chase, President
National Center for Education Statistics
(NCES)
1990 K Street NW
Washington, DC 20006 USA
EDUCATION—TYPES OF SCHOOLS
530 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Phone: (202) 502-7300
URL: http://www.nces.ed.gov
Primary Contact: Gary W. Phillips, Acting
Commissioner
U. S. Department of Education
400 Maryland Avenue SW
Washington, DC 20202 USA
Phone: (800) 872-5327
URL: http://www.ed.gov
Primary Contact: Rod Paige, Secretary of Education
EDUCATION—TYPES OF SCHOOLS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 531
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EDUCATION
VIOLENCE AND WEAPONS
Sections within this essay:
• Background
• Weapons at School
- Ramifications of Possessing Weapons
on School Grounds
- Holding Parents Accountable
- Holding Teachers Accountable
• Limitations on School Authority
• Constitutional Rights of Students
- Metal Detectors in Schools
- Use of Canine Units
- Drug Testing
- Vehicle Searches
• Gang Related Violence and Drug Availability
at School
• Legislation
• Additional Resources
Background
Two major issues are central to the school safety
debate—Fourth Amendment rights in SEARCH AND
SEIZURE and the extent of a school’s authority in con-
trolling the school environment and its occupants.
Although all states impose minimal guidelines, each
school and school district is responsible for its own
governing policies. Setting the standard for all states
is the 1994 Improving America’s Schools Act passed
which amended the Elementary and Secondary Edu-
cation Act of 1965. Title IV of the Improving Schools
Act, called Safe and Drug-Free Schools and Commu-
nities, outlines legislation and initiatives to make
schools safe. For example, one of the goals of nation-
al education was to have drug-free and weapons-free
school campuses by the year 2000 and, further, to
offer students ‘‘a disciplined environment that is
conducive to learning.’’
Violence in school has received much public at-
tention during the past several years because inci-
dents of school violence in which students and/or
teachers have died of gunshot wounds have oc-
curred across the United States from Springfield, Or-
egon to Edinboro, Pennsylvania. However, according
to various sources, the number of violent crimes
committed on school grounds has been declining for
several years, following decreases in other violent
crime (see Agnew, 2000; Office of Juvenile Justice
and Delinquency Prevention (OJJDP), 1999; U. S. De-
partment of Education (USEd), 1999). In fact, stu-
dents are three times more likely to be victims of a
non-fatal violent crime outside of school than they
are at school (Agnew, 2000). The one type of violent
crime committed on school grounds that has in-
creased is the number of multiple victim homicides
(OJJDP, 1999; USEd, 1999), but the odds of a student
being a victim of such a HOMICIDE are about one in
three million (Brezina & Wright, 2000).
The school setting is unique in that it forces large
groups of people together for extended periods of
time in small areas. Many state legislatures have rec-
ognized that certain acts committed under these cir-
cumstances have potentially greater harmful effects
to the health and safety of people and have imple-
mented legislation accordingly.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 533
Weapons at School
Violence at school often involves the use of weap-
ons. Traditionally, weapons prohibited on school
grounds referred to firearms and explosives, but re-
cently, many states have widened these guidelines.
For example, in Kansas, weapons include firearms,
explosive devices, bludgeons, metal knuckles, throw-
ing stars, electronic stun guns, specific types of
knives (such as switchblades and butterfly knives),
and any weapon that ‘‘expels a projectile by the ac-
tion of an explosive’’ (e.g., gunpowder). Other states
have gone much further than these specifications.
Georgia defines weapons in its school laws as items
complying with these descriptions:
any pistol, revolver, or any weapon designed or
intended to propel a missile of any kind, or any
dirk, bowie knife, switchblade knife, ballistic
knife, any other knife having a blade of three
or more inches, straight-edge razor, razor
blade, spring stick, metal knuckles, blackjack,
any bat, club, or other bludgeon-type weapon,
or any flailing instrument consisting of two or
more rigid parts connected in such a manner
as to allow them to swing freely, which may be
known as a nun chahka, nun chuck, nunchaku,
shuriken, or fighting chain, or any disc, of what-
ever configuration, having at least two points
or pointed blades which is designed to be
thrown or propelled and which may be known
as a throwing star or oriental dart, or any weap-
on of like kind, and any stun gun or taser (Code
1-33).
The only instances in which all states allow weap-
ons and firearms on school property are when indi-
viduals are authorized to do so; for example, school
police officers may be armed and teachers having in-
structional purposes. Many people wonder how
many youth have access to weapons. Recent data in-
dicate that about 30 percent of young individuals
own a firearm (Brezina & Wright, 2000). Further, a
national study conducted by the Center for Disease
Control revealed that in 1997 about one-fifth of high
school students reported carrying a weapon to
school.
Ramifications of Possessing Weapons on
School Grounds
In nearly all states, possession of a firearm on
school property is a class C or class D FELONY. In addi-
tion to having the right to file criminal charges, all
school districts have an automatic expulsion policy
for students caught with any type of weapon on
school property which action can be appealed on a
case-by-case basis. Such policies are mandated by the
Gun-Free Schools Act of 1994. Special Education stu-
dents are protected from automatic expulsion under
the Individuals with Disabilities Education Act
(IDEA). A special education student who is found to
be possessing a weapon on school grounds is subject
to removal from the school to an interim setting for
a period of up to 45 days. During this time, the inci-
dent is studied, and if the possession of the weapon
was not due to the student’s DISABILITY, that student
can be punished in the same way as a non-special ed-
ucation student.
Some states, for example, Kansas and Florida,
have also adopted laws that allow for the revocation
of students’ driver’s licenses if they are found guilty
of possessing a firearm or drugs on school property.
Kansas goes so far to say that the state can revoke a
student’s driver’s license for any behavior engaged
in by a student that was likely to result in serious bod-
ily injury to others at school.
Holding Parents Accountable
In nearly all states, parents can be held account-
able for damages resulting from their child’s criminal
actions on school property, provided that child is liv-
ing with the parents. This law means that parents of
any student who vandalizes school property or at-
tacks other students or teachers can be held liable.
In addition, parents who allow minors access to fire-
arms can be prosecuted on criminal charges, such as
contributing to the delinquency of a minor.
Holding Teachers Accountable
Many states have adopted laws that require teach-
ers to report a crime that they know or have reason
to believe was committed on school property or at
a school activity. Failure to do so may result in crimi-
nal prosecution for a MISDEMEANOR. Lacking unifor-
mity on this issue, school districts vary greatly with
regard to making criminal charges.
Limitations on School Authority
Another area that has been debated by the courts
is the extent of school authority. Under the Gun Free
School Zones Act of 1995, a firearm could not be
brought within 1,000 feet of a school. The Supreme
Court, in a rare decision that overturned this Con-
gressional Act, decided in United States v. Lopez
(1995) that it was unconstitutional to declare schools
gun-free zones in this manner. Further, the court
held that claims of increased school violence could
EDUCATION—VIOLENCE AND WEAPONS
534 GALE ENCYCLOPEDIA OF EVERYDAY LAW
not override Second Amendment constitutional
rights.
There have been other challenges to school au-
thority under the Fourteenth Amendment which al-
lows for due process. Students must be given notifi-
cation of charges against them, in addition to an
opportunity to defend themselves, and to be repre-
sented when being expelled or suspended. A written
school policy on the appeals process is recommend-
ed.
Constitutional Rights of Students
With the advent of increased availability of drugs
and weapons for juveniles during the last twenty
years, search and seizure laws have been challenged
by many students who felt their constitutional rights
were violated by unreasonable searches at school.
Prior to 1968, the constitutional rights of students
took a back seat to the doctrine of LOCO PARENTIS,
which meant that the school and its officials took the
place of the parent. Under this philosophy, students
had few constitutional rights. The first serious chal-
lenge to this philosophy came in 1969 when the Su-
preme Court decided in Tinker v. De Moines Inde-
pendent School District that students should be
allowed to wear black arms bands as a symbol of pro-
test against the United States involvement in the
Vietnam war. The court held that this was an expres-
sion of free speech and therefore was a First Amend-
ment right.
Fourth Amendment protection against search and
seizure was argued in the courts for years and was
finally resolved in New Jersey v. T.L.O. (1985). In this
case, a teacher had searched a student’s possessions
after the student was found smoking a cigarette. Sub-
sequently, the teacher found marijuana and drug
paraphernalia. There were two major questions
raised by this case. First was whether students who
are searched on school property have Fourth
Amendment privileges and, second, what deter-
mines PROBABLE CAUSE for a search. In other in-
stances, a WARRANT is required before a search can be
conducted.
The courts held that Fourth Amendment Privi-
leges do extent to students, but school authorities
can search without a warrant provided the search is
reasonable in inception and reasonable in scope.
However, in order for law enforcement personnel to
conduct a search, a warrant must be procured. This
point becomes important in light of the number of
schools which have their own police officers. Thus,
in order for a search to take place, there must be the
following conditions:
reasonable grounds for suspecting that the
search will turn up EVIDENCE that the student
has violated or is violating either the law or the
rules of the school. Such a search will be per-
missible in its scope when the measures adopt-
ed are reasonable and related to the objectives
of the search and are not excessively intrusive
in light of the age and sex of the student and
the nature of the INFRACTION. (New Jersey v.
T.L.O. 1985, p. 733)
Whether a search is reasonable in inception has
been interpreted as a search based on reasonable
suspicion, which is very similar to probable cause.
The extent of reasonable suspicion must be much
higher for more intrusive searches. For example, a
search of a student’s locker requires a low level of
reasonable suspicion, but in order for a student to be
strip searched, there must be a much higher degree
of reasonable suspicion. A body cavity search can
only be conducted by law enforcement personnel
after a warrant has been procured. Further, in order
for the search to comply with the law, the search
must be in proportion to the suspicion. A student
should not be strip searched to find ten dollars that
has been stolen.
One example of a situation in which a court deter-
mined a search to be reasonable is Martinez v.
School District No. 60 (1992) in which a school dance
monitor asked two students to blow on her face after
observing them acting in a manner consistent with
DRUNKENNESS. A second example is the Matter of
Gregory M. (1992/1993) in which a security guard ran
his hand along a student’s school bag to feel for a
gun after the bag had made an unusual noise on con-
tact with the student’s locker.
Locker searches are also affected by individual
school policies. Some schools maintain that lockers
are school property and, therefore, school adminis-
trators can conduct random searches of lockers. The
courts have held this is permissible provided that
students are notified of this policy in writing.
Metal Detectors in Schools
Metal detectors have been installed in schools
around the country as a means of decreasing the
number of weapons being brought to school. A
metal detector is a type of mass search which has
been challenged as a violation of Fourth Amendment
EDUCATION—VIOLENCE AND WEAPONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 535
privileges. The courts in several states, such as Flori-
da, Louisiana and Tennessee, have held that metal
detectors are not violating Fourth Amendment rights
and are held to the same legal standards as metal de-
tectors in other facilities, such as airports. Metal de-
tectors are, therefore, considered administrative
searches and may provide reasonable suspicion for
further individualized searches. Some states have
also noted that there is a need to violate privacy to
some degree in order for the safety of the greater
group. California has stipulated that a written policy
detailing policies and the use of metal detectors be
given to students and should be based on informa-
tion about the dangers of students’ weapons at
school.
Use of Canine Units
The Supreme Court has not ruled on the constitu-
tional limits of using drug-sniffing dogs in schools at
the time of this publication, and the lower courts
have had differing opinions on whether such tactics
are in violation of the reasonable suspicion test.
Some courts have held that a sniffer dog does not
constitute a search at all, with the landmark case
being Doe v. Renfrow (1980). Students who were
singled out by dogs in this case were subjected to a
strip search, which the Supreme court held was un-
reasonable. In Horton v. Goose Creek Independent
School District (1982) courts held that sniffing a per-
son was a search and that such a search was a viola-
tion of Fourth Amendment rights unless there was
reasonable suspicion as dictated by T.L.O.
Drug Testing
The debate over whether schools can implement
mandatory, random drug tests to students using ei-
ther urine analysis or blood testing has also been
widely debated in the courts. In Jones v. McKenzie
(1986) the courts held that drug tests violate a stu-
dent’s reasonable expectation of privacy. Since this
case, the courts have been careful to distinguish be-
tween mandatory and voluntary drug testing, since
the latter requires consent of the student.
Student athletes have long been subjected to dif-
ferent rules. Many athletic programs are required by
their governing bodies to perform random, manda-
tory drug testing on athletes using urine analysis. In
1998, the U. S. Supreme Court declined to hear a
constitutional challenge to a random drug testing
policy of students involved in extracurricular activi-
ties that was implemented in an Indiana school dis-
trict (Todd v. Rush County). This decision not to
hear the case meant that the Supreme Court en-
dorses random drug testing of student athletes and
students involved in other extracurricular activities.
This decision was in keeping with the courts ruling
in Vernonia School District 47J v. Action (1995). In
this case, the Supreme Court held that urine testing
of student athletes was reasonable on the grounds
that school order and discipline outweigh individual
students’ privacy. Further, student athletes should
have a reduced expectation of privacy given that
their grades and medical history are subject to scruti-
ny, and they are often placed in a communal setting
for dressing and showering.
Vehicle Searches
Searches of students’ vehicles that are parked on
school grounds are subject to the T.L.O. guidelines.
However, like locker searches, it is prudent for
school districts to have a written policy regarding ve-
hicle searches and even some type of parking permit
system that clearly outlines the school’s policy on ve-
hicle searches.
The following is an extract from a Virginia School
district statement on policies on search and seizure.
FAIRFAX COUNTY (VIRGINIA): Desks, lockers,
and storage spaces are the property of the
school and the principal may conduct general
inspections of those areas periodically in the
presence of a witness. These areas, in addition
to vehicles parked on school property may be
searched on an individual basis if there is rea-
sonable grounds to believe there may be illegal
drugs, weapons, stolen property or other
CONTRABAND. The search must be conducted
for maintaining order and discipline at the
school rather than for criminal prosecution.
Reasonable effort will be made to locate the
student prior to the search. Further, students
believed to have any contraband on their per-
son may be searched and metal detectors may
be used. Personal searches may extend to
pockets and the removal of outer garments and
also to pocketbooks and backpacks. (Regula-
tion 2601.14P, G)
Gang Related Violence and Drug
Availability at School
The Department of Justice implemented the
School Crime Supplements (SCS) to the National
Crime Victimization Survey in 1995. Part of the SCS
addressed the extent to which gangs and gang vio-
lence were present at schools. A little over half of the
EDUCATION—VIOLENCE AND WEAPONS
536 GALE ENCYCLOPEDIA OF EVERYDAY LAW
students interviewed in 1995 who attended school in
areas with populations between 50,000 and one mil-
lion, reported gang activity at their schools (Howell
& Lynch, 2000). In terms of victimization at schools
where gang activity is prevalent, 54 percent of stu-
dents reported they had been victimized. The study
also demonstrated an association between gangs at
school and drug availability, as 69 percent of students
said drugs such as marijuana, PCP, LSD, crack co-
caine, and Ecstacy were easy to get hold of if there
were gang activity present at school. In all states, stu-
dents caught with drugs on school grounds are sub-
ject to criminal prosecution under the laws of the
state.
Legislation
Each state receiving Federal funds under the Ele-
mentary and Secondary Education Act of 1965
(ESEA) must comply with the Gun-Free Schools Act
of 1994 which prohibits firearms to be brought with-
in 1,000 feet of school property. Although part of this
legislation was not upheld by the U. S. Supreme
Court in United States v. Lopez, the legislation still
stands, as various other GUN CONTROL bills have been
debated but not passed as of 2002. The following is
an extract from the Gun-Free Schools Act of 1994.
SECTION 14601. Gun Free Requirements . . .
each State receiving Federal funds under this
Act shall have in effect a State law requiring
local educational agencies to expel from school
for a period of not less than one year a student
who is determined to have brought a weapon
to a school.
State laws repeat stipulations required by this Act
almost verbatim, for example, the following Florida
provision:
FLORIDA: a person who exhibits a sword,
sword cane, firearm, electric weapon or device,
destructive device, or other weapon, including
a razor blade, box cutter, or knife... at any
school-sponsored event or on the grounds of
facilities of any school, school bus, or school
bus stop, or within 1,000 feet of the real prop-
erty that comprises a public or private elemen-
tary school, middle school, or secondary
school, during school hours or during the time
of a sanctioned school activity, commits a felo-
ny of the third degree. (790.115)
Laws regarding weapons at school may change in
the near future as school safety bills being debated
by different states are acted upon. For more informa-
tion, contact the appropriate state’s Department of
Education.
Additional Resources
1999 Annual Report on school safety. U. S. Department of
Education and U.S. Department of Justice, Government
Printing Office, Washington, D.C., 1999.
Going armed in the school zone. Brezina, Timothy, &
Wright, James D. Forum for Applied Research and Pub-
lic Policy, 15, (4), 82-87, 2000.
Juvenile offenders and victims: 1999 National Report. Of-
fice of Juvenile Justice and Delinquency Prevention.
Government Printing Office, Washington D.C., 1999.
School crime: A national crime victimization survey re-
port. Bureau of Justice Statistics, Washington D.C.: Gov-
ernment Printing Office, 1991.
Strain theory and school crime. Robert Agnew. In Of
crime and criminality, Sally Simpson (Ed). Pine Forge
Press, Thousand Oaks, CA, 2000.
Youth Gangs in Schools. James C. Howell and James P.
Lynch. Juvenile Justice Bulletin, August 2000.
Organizations
Florida Department of Education
Turlington Building, 325 West Gaines Street
Tallahassee, FL 32399-0400 USA
URL: http://www.firn.edu/doe/
The National Center for Juvenile Justice
710 Fifth Avenue, Suite 3000
Pittsburgh, PA 15219 USA
Phone: (412) 227-6950
Fax: (412) 227-6955
URL: http://brendan.ncjfcj.unr.edu/homepage/ncjj/
ncjj2/index.html
The National Drug Strategy Network,
Criminal Justice Policy Foundation
1225 I Street NW, Suite 500
Washington, D.C. 20005-3914 USA
Phone: (202) 312-2015
Fax: (202) 842-2620
URL: http://www.ndsn.org
The National Resource Center for Safe
Schools
101 SW Main Street, Suite 500
Portland, OR 97204 USA
Phone: (503) 275-0131
Fax: (503) 275-0444
EDUCATION—VIOLENCE AND WEAPONS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 537
The Office of Juvenile Justice and
Delinquency Prevention, U. S. Department of
Justice
Washington, DC USA
URL: http://www.ojjdp.ncjrs.org
Safe Learning
160 E. Virginia Street #290
San Jose, CA 95112 USA
Phone: (408) 286-8505
Fax: (408) 287-8748
URL: http://www.safe-learning.com
U. S. Department of Education
400 Maryland Ave., SW
Washington, DC 20202-0498 USA
Toll-Free: 800-872-5327
URL: http://www.ed.gov
Violence Policy Center
1140 19th Street, NW, Suite 600
Washington, DC 20036
URL: http://www.vpc.org
EDUCATION—VIOLENCE AND WEAPONS
538 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ESTATE PLANNING
ESTATE AND GIFT TAX
Sections within this essay:
• Background
• Gift Tax
- Annual Exclusion
- Gift Splitting
- Unified Credit
- Gift Tax Return
• Estate Tax
- Taxable Estate
• Recipients
• 1997 Taxpayer Relief Act
• Economic Growth and Tax Relief Reconcilia-
tion Act of 2001
• Generation-skipping Transfer Tax
• State Taxes
• Additional Resources
Background
One of the oldest methods of TAXATION is the taxa-
tion of property held by an individual at the time of
death. At that time the estate passed from one indi-
vidual to another or several others. Estate and gift
taxes are imposed on large transfers of money and/or
property. Most gifts are not subject to the gift tax and
most estates are not subject to the estate tax. Gift
taxes are imposed on transfers made during an indi-
vidual’s lifetime. Estate taxes are imposed on trans-
fers made as a result of death. Although gift taxes and
estate taxes are paid separately, they are a unified tax
in the sense that a single graduated rate schedule ap-
plies to the cumulative total of taxable transfers
made through gifts and estates. An estate tax is a
charge upon the decedent’s entire estate, regardless
of how it is disbursed. An alternative form of death
tax is an INHERITANCE tax, which is a tax levied on indi-
viduals receiving property from the estate. Gift tax
laws have been enacted to prevent tax avoidance by
TRANSFER OF ASSETS as gifts prior to death. Federal Es-
tate Tax laws are integrated with Federal Gift tax laws
so that it is more difficult to shield large estates from
taxation. A number of individual states also have en-
acted an estate tax law.
Although the taxation of gifts and estates may
seem complex, the calculation of estate and gift taxes
is similar to the calculation of personal income taxes.
As with the INCOME TAX, there are exemptions and
credits that are applied before the progressive rate
schedule is applied. Estate taxes are different in that
they are calculated over a lifetime, rather than year
by year.
Gift Tax
Gift tax applies to the transfer by gift of any prop-
erty, including money or the use of or income from
property. The sale of an asset for less than its full
value or the lending of money at interest-free or re-
duced interest rates, may also constitute a gift for tax
purposes. Although any gift has the potential to be
taxable, there are a number of exemptions.
There is an annual exclusion of the first $10,000
given to any one person during a calendar year.
There is an educational and medical expense exclu-
sion. Gifts to a spouse, a political organization, or
charities are not subject to gift tax.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 539
Annual Exclusion
A separate $10,000 annual exclusion applies to
each person to whom a gift is made. A person can
give up to $10,000 each to any number of people
each year and none of the gifts will be taxable. Mar-
ried people can separately give up to $10,000 to the
same person each year without making a taxable gift.
Gift Splitting
If a married couple makes a gift to a third party,
the gift can be considered as made one-half by each
person. This is known as gift splitting. Both spouses
must agree to split the gift. Gift splitting allows a mar-
ried couple to give up to $20,000 to a person annual-
ly without making a taxable gift. If a gift is split, the
couple should file a gift TAX RETURN proving the
agreement to split the gift existed. This is true even
where half of the split gift is less than $10,000. The
IRS provides a shorter form for this purpose, Form
709-A.
Unified Credit
Most gifts above the annual exemption are still not
subject to tax because each taxpayer is allowed a life-
time credit against taxable gifts and estate. A credit
is generally an amount which reduces the amount of
taxes owed. A unified credit applies to both the gift
tax and the estate tax. The unified credit can be sub-
tracted from any gift owed by the taxpayer. Unified
credit used against a gift tax in one year reduces the
amount of credit that can be applied in later years.
The total amount used against a gift tax reduces the
credit available to use against estate tax. Any unified
credit not used against gift tax during the taxpayer’s
lifetime is available for use against the estate tax.
Previously, the unified credit was $220,550, which
eliminated taxes on a total of $675,000 of taxable gifts
and taxable estate. These amounts were increased
for gifts made and for estates of decedents dying
after 2001. For 2002 and 2003, the unified credit is
$229,800 on a total of $700,000. In 2004, it goes to
$287,300 on $850,000. In 2005, it rises to $326,300 on
$950,000. After 2005, the amount becomes $345,800
on a million dollars.
Gift Tax Return
A gift tax return is filed with annual income taxes
on Form 709. This form is required for gifts of over
$10,000 to someone other than a spouse, a married
couple splitting a gift (although they may be able to
file the shorter form, Form 709-A). A gift tax return
is not required for gifts to political organizations and
gifts made by paying tuition or medical expenses. A
gift tax return is not required for gifts made to chari-
ties or for a qualified conservation EASEMENT.
Estate Tax
A person’s taxable estate is defined as the gross es-
tate less allowable deductions. Gross estate means
the value of all property in which the decedent had
an interest at the time of death. The gross estate
would also include life insurance proceeds payable
to the estate or the heirs, the value of certain annui-
ties payable to the estate or heirs, and the value of
certain property transferred three years or less prior
to death. Estate taxes are due to the IRS nine months
from the date of death.
Taxable Estate
The taxable estate includes the value of all proper-
ty and assets owned at the time of death plus any
gifts made in the three years prior to death. Allow-
able deductions from a decedent’s taxable estate in-
clude funeral expenses, debts the decedent owed at
the time of death, the marital DEDUCTION, and costs
of administering and settling the estate. Any unified
credit not used to eliminate gift tax can be used to
eliminate or reduce estate tax. Currently, although
the first $675,000 of an entire estate is excluded from
taxation, estates with values above that have federal
estate-tax rates which range from 37 percent to 55
percent.
Recipients
The person who receives a gift or an estate does
not have to pay any gift tax or estate tax because of
it. (Estate tax is considered to be payable by the es-
tate itself rather than the heirs.) Additionally gifts and
inheritances are not subject to income tax.
1997 Taxpayer Relief Act
Until 1997, every taxpayer was allowed a lifetime
credit against estate and gift taxes of $192,800. This
was equivalent to a $600,000 exemption from estate
and gift taxes. This meant that taxpayers who gave no
taxable gifts during the course of their lives would
pay no tax on the first $600,000 of their taxable es-
tate. The 1997 Act raised the amount of the unified
credit gradually over nine years. The Estate Tax Ap-
plicable Exclusion Amount increases over the next
several years until it reaches $3.5 million in 2009.
Unlike the estate tax, the gift tax is not repealed
in 2010, and there is a separate applicable exclusion
ESTATE PLANNING—ESTATE AND GIFT TAX
540 GALE ENCYCLOPEDIA OF EVERYDAY LAW
amount for gift tax purposes which is not the same
as the one for estate tax purposes. The gift tax exclu-
sion amount will increase to $1 million in 2002 and
remain there. From 2002 through 2009, the top mar-
ginal estate tax and gift tax rates are the same. For
2010, gifts in excess of the $1 million exclusion
amount are subject to a gift tax at a rate which will
be equal to the top individual income tax rate at that
time.
Even before 1997, an individual always gave a total
of $10,000 ($20,000 for married joint filers) per recip-
ient in gifts each year without incurring any tax. But
since this amount was not indexed for inflation, the
real value of the $10,000 exclusion had been falling
since 1976, when the $10,000 amount was set. The
Taxpayer Relief Act indexes the $10,000 exclusion to
the rate of inflation.
Economic Growth and Tax Relief
Reconciliation Act of 2001
Beginning in 2002 and through 2009, the top fed-
eral estate and gift tax rates will be reduced. The rate
drops from 55% to 50% in 2002, and then by one per-
centage point annually until reaching 45% in 2007. Fi-
nally, the federal estate tax will be completely elimi-
nated in 2010. The law also substantially increases
the amount that individuals can pass to their heirs
free of federal estate taxes to $1 million in 2002 and
gradually to $3.5 million in 2009. Full REPEAL follows
in 2010. However, the law has a ‘‘sunset’’ provision
which means that if Congress passes no additional
law, the estate tax laws in effect prior to the Tax Relief
Act of 2001 would be reinstated in 2011. Gift tax rates
will be reduced on the same schedule as the estate
tax rate. However, when the estate tax is repealed in
2010, taxpayers will still be subject to a lifetime gift
tax, with a maximum gift tax rate of 35%, which is the
same as the maximum income tax rate. Gift tax rates
will be reduced on the same schedule as the estate
tax rate. The GST tax will be repealed for all transfers
after December 31, 2009.
Generation-skipping Transfer Tax
Generation-skipping TRANSFER TAX (GST) applies
in the event a person omits their own children as
beneficiaries and instead leaves the inheritance di-
rectly to their grandchildren, the tax is calculated at
a flat rate of 55 percent. This is in addition to estate
taxes, which can also be as high as 55 percent. There
is, however, a $1,000,000 GST tax exemption, which
may be used during the taxpayer’s, life or at death.
Married couples have a $1,000,000 exemption each.
Certain educational and medical expenses are ex-
cluded and gifts that qualify for the $10,000 gift tax
exclusion can avoid the GST tax.
State Taxes
Many states have some form of estate or inheri-
tance taxes. A state death-tax credit is available when
computing federal estate taxes, but it is limited. State
taxes vary widely from state to state. Some, including
Alaska, Florida, Nevada, and New Mexico, have no es-
tate tax. Some states tax the entire estate, some only
the portions passed on to beneficiaries, and some
take part of the federal estate tax credit.
ARIZONA: The Arizona estate tax is on the transfer
of property or interest in property. This tax is as-
sessed against the NET estate before it is distributed.
Arizona estate tax is imposed on the Arizona estate
of both resident and nonresident decedents. Arizona
does not impose an inheritance or gift tax.
COLORADO: The Colorado estate tax replaced the
Colorado inheritance tax for decedents with a date
of death on or after Jan.1, 1980. The Colorado gift tax
does not apply to transfers made on or after Jan. 1,
1980. A Colorado Estate Tax Return must be filed
only if a United States Estate Tax Return is required
to be filed. Colorado has a generation-skipping trans-
fer tax. Colorado estate tax is based on the state
death tax credit allowable on the federal return. Col-
orado has no separate extension provisions for filing
or for paying of estate tax but does honor extensions
approved by the IRS.
FLORIDA: Florida’s estate tax system is commonly re-
ferred to as a ‘‘pick up’’ tax. Florida picks up all or
a portion of the credit for state death taxes allowed
by the federal government. Under this system, Flori-
da estate tax is not due unless an estate is required
to file a federal estate tax return.
LOUISIANA: Louisiana imposes an inheritance tax
and an estate transfer tax. According to the law of this
state, the inheritance tax is a tax imposed upon the
heirs of a decedent for the privilege of receiving
property from the deceased. Estate transfer tax is de-
signed to absorb the federal state death tax credit al-
lowable under the Internal Revenue Code. The es-
tate transfer tax does not impose any additional tax
burden on the decedent’s estate but merely shifts
payment from the federal government to the state.
ESTATE PLANNING—ESTATE AND GIFT TAX
GALE ENCYCLOPEDIA OF EVERYDAY LAW 541
NEW YORK: New York has an estate tax, but for es-
tates of individuals deceased on or after February 1,
2000, it has revised the method of calculating the tax.
Estates are only required to file a New York State es-
tate tax return if the estate is also required to file a
federal estate tax return. The filing requirements for
New York State are identical to the federal require-
ments for dates of death through 2003. The addition-
al federal increases in the filing threshold beyond
2003 are not incorporated in New York State Tax
Law, so the filing threshold for New York State re-
mains at one million dollars. Beginning with dates of
death in 2004, some estates will have to file a New
York State estate tax return even if they are not re-
quired to file a federal estate tax return. New York
State estate tax conforms to the federal Internal Rev-
enue Code of 1986 with all amendments enacted on
or before July 22, 1998, but does not provide for the
decreases in the federal credit for state death taxes
that are applicable to dates of death after 2001. As a
result, estates of individuals with dates of death after
2001 that pay a New York State estate tax will not re-
ceive full credit on the federal estate tax return for
the tax paid to New York State. New York State Gift
Tax was repealed as of January 1, 2000.
Additional Resources
Rethinking Estate and Gift Taxation. Slemrod, James,
Brookings Institution Press, 2001.
Organizations
American College of Trust and Estate
Counsel
3415 South Sepulveda Blvdoulevard., Suite 330
Los Angeles, CA 90034 USA
Phone: (310) 398-1888
Fax: (310) 572-7280
National Academy of Elder Law Attorneys,
Inc.
1604 North Country Club Road
Tucson, AZ 85716 USA
Phone: (520) 881-4005
Fax: (520) 325-7925
URL: http://www.naela.com/
ESTATE PLANNING—ESTATE AND GIFT TAX
542 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ESTATE PLANNING
GUARDIANSHIPS AND
CONSERVATORSHIPS
Sections within this essay:
• Background
• Guardianship
• Guardianship of Minors
- Guardianship of the Estate
- De Facto Custodian
- Standby Guardianship
- Permanent Guardianship
- Subsidized Guardianship
• Conservatorship
• Involunatry Commitment
• Public Fiduciary
• Representative Payee
• Power of Attorney
• Joint Ownership
• Selected State Law Provisions
• Additional Resources
Background
If an individual becomes unable to handle his or
her own affairs there are two major areas of concern.
These are the individual’s physical welfare decisions
and the management of the individual’s finances. A
guardianship is the appointment of an individual to
provide care and to make personal decisions for a
minor or incapacitated person. A GUARDIAN may be
nominated by a Will, by a Trust document, or by any
via a petition with the court. The person for whom
a guardian is appointed is called a ward. Generally,
the ward cannot provide food, clothing, or shelter
for himself or herself welfare without assistance. A
conservatorship is the appointment of an individual
or a corporation with TRUSTEE powers, to manage the
financial affairs of a minor or other person who can-
not manage his or her own financial matters. A con-
servator is not authorized to make decisions regard-
ing the personal care as a guardian does. The person
for whom a conservator is appointed is called a pro-
tected person. The court may appoint a conservator
for a single transaction or indefinitely. A person may
need a guardian or a conservator or both and the
same person can be appointed in both capacities.
Guardianship
Guardianship is established by a court order. The
court grants the guardian authority and responsibili-
ty to act on behalf of another person. The relation-
ship is FIDUCIARY, which means that the guardian is
obliged to act in the best interests of the ward. The
court supervises the guardian to assure proper ac-
tions on behalf of the ward. An individual may serve
as guardian of a minor or of an incapacitated person.
For a minor, the court considers which individual’s
appointment will be in the best interest of the minor.
In some states, a minor ward over fourteen can nom-
inate his or her own choice for guardian. Any compe-
tent person may be appointed guardian for an inca-
pacitated person. The appointee might be the
spouse, an adult child or parent of the ward, or any
responsible adult with whom the ward is residing.
To establish a guardianship, a petition is typically
filed in state court where the ward lives. This petition
GALE ENCYCLOPEDIA OF EVERYDAY LAW 543
usually names the potential guardian and provides
information about the parties’ relationship (if any)
and usually any pertinent information about the
heirs or estate of the ward. If the ward is a minor, in-
formation about the minor’s parents and whether
and where they are living is generally necessary. In
the case of an adult ward, if mental incapacity is the
reason for the petition, medical documentation
should accompany the filing. Notice of the time and
place of the HEARING is given to the potential ward
and other persons specified by STATUTE.
The documents are served on the interested par-
ties at which point the proposed ward or his or her
relatives can object to the guardianship request. A
hearing is held. If the court finds sufficient EVIDENCE
to order the guardianship, it may issue subsequent
orders, which govern the relationship and the guard-
ian’s actions. The court may appoint a guardian if it
finds the person is incapacitated and the appoint-
ment is necessary to provide continuing care and su-
pervision of the person. Incapacity can result from
any number of conditions, including, but not limited
to mental illness, mental deficiency, mental disorder,
physical illness or DISABILITY, chronic use of alcohol
or other drugs. Essentially, the court must be con-
vinced that the individual lacks sufficient under-
standing or capacity to make or communicate re-
sponsible decisions. The court may terminate a
guardianship if a subsequent hearing proves that the
need for a guardian no longer exists, or in the case
of a minor, when the child reaches the AGE OF
MAJORITY.
A guardianship restricts the individual’s right to
contract, marry, spend money, make decisions about
their own care, or create a new will. The guardian
may make personal decisions for the ward such as
living arrangements, education, social activities, and
authorization or withholding of medical or other
professional care, treatment, or advice. A guardian
must submit written reports to the court according
to the court’s orders and the law of the JURISDICTION
in which the guardianship takes place. Generally, a
guardian is not charged with managing the income
or property of the incapacitated person; however,
the guardian may receive funds payable for the sup-
port of the ward such as social security as a represen-
tative payee.
If a guardianship is contested, the court may ap-
point a disinterested third party to investigate and
make recommendations. Usually called a GUARDIAN
AD LITEM, this person evaluates both the necessity for
a guardianship, and the appropriateness of the pro-
posed guardian. The ward may also hire separate
legal COUNSEL. If the proposed ward is indigent, the
court sometimes appoints counsel.
Guardianship of Minors
Guardianship of a minor is typically appropriate
when a child is permanently living with someone
other than a parent. This might occur if both parents
died, or if one parent died and the other is incarcer-
ated or otherwise absent. Guardianships of minors
are often established when neither parent is able to
provide a safe, secure home for the child because of
drug abuse, alcoholism, and other serious personal
problems.
The difference between guardianship and
ADOPTION is that guardianship does not sever the bio-
logical parents’ rights and responsibilities. Guardian-
ship of a child means that a caregiver is responsible
for the care and CUSTODY of the child. This arrange-
ment allows the guardian to access services on behalf
of the child. Unlike adoption, a birth parent can re-
turn to court at any time and ask for the guardianship
to be terminated.
When a guardian is appointed for a minor child,
the court may impose conditions. One common con-
dition is a requirement that the guardian attend par-
enting classes. Courts sometimes require that grand-
parent guardians attend grandparent caregiver
support groups. Not only are judges aware that par-
enting techniques have changed in recent years, but
if the child’s parents are drug addicts, alcoholics, or
abusive toward children, is may be appropriate to
question why the grandparents will do a better job
raising the grandchildren than they did raising their
own children. Grandparents seeking guardianship
should be prepared to address these issues.
Guardianship of the Estate
Even if a minor child lives with one or both par-
ents, in some states a guardianship is required if the
child inherits property worth more than $20,000.
After the court appoints a guardian, an inventory and
APPRAISAL must be filed, and annual or bi-annual ac-
countings must also be filed with the court until the
child reaches age eighteen.
De Facto Custodian
De Facto Custodian laws give caregivers the same
standing as parents in custody cases if they satisfy the
definition of de facto custodian. They must be the
ESTATE PLANNING—GUARDIANSHIPS AND CONSERVATORSHIPS
544 GALE ENCYCLOPEDIA OF EVERYDAY LAW
primary caregiver and must be providing financial
support of a child who has lived with the de facto
custodian for a certain period of time.
Standby Guardianship
These laws were originally designed in response
to the AIDS crisis and allow a terminally ill parent to
designate a standby guardian to take over the day to
day care of a child in the event of parental incapacity.
There is a Sense of Congress in the Adoption and
Safe Families Act (ASFA) that States should pass
these laws.
Permanent Guardianship
Permanent guardianships are for children in state
custody. In some states permanent guardianship sta-
tus may be granted by the juvenile court after it is
proven that it is in the best interest of the child that
the birth parent should never have physical custody
of the child. A birth parent is prohibited from peti-
tioning the court to terminate this permanent guard-
ianship once it is granted.
Subsidized Guardianship
Some states have programs that provide a month-
ly subsidy payment to grandparents and other rela-
tives who obtain guardianship of the children they
are raising. Subsidized guardianships are designed
for those children who have been in state custody,
with a relative or non-relative providing the care, for
at least six months and in some states up to two
years. The subsidy is sometimes less than the foster
care payment in that state but usually more than the
Temporary Assistance for Needy Families (TANF)
child-only grants. Continued eligibility for the subsi-
dy is typically re-determined annually. The subsidy
payments usually end when the guardianship termi-
nates or when the child turns 18, although several
states continue the subsidy until the child reaches
age 21 or 22 provided he or she is attending school.
States have some similar programs that do not re-
quire the child to be in state custody.
Conservatorship
Unlike a guardian, a conservator has no power or
responsibility over the individual. Only the money
and property falls within the conservator’s jurisdic-
tion. A conservator has power to invest funds of the
estate and to distribute sums reasonably necessary
for the support, care, education or benefit of the pro-
tected person and any legal dependents of the pro-
tected person. Either an individual,or a corporation
with general power to serve as a trustee may be ap-
pointed conservator for a protected person. Typical-
ly, state laws provide a preferred order of priority for
those who may be considered by the court for ap-
pointment. A conservator has the powers and re-
sponsibilities of a fiduciary and is held to the stan-
dard of care applicable to a trustee. The conservator
files an inventory of the estate of the protected per-
son with the court and accountings of the adminis-
tration of the estate.
Conservatorship is established by petitioning the
court. The petition can be filed by the person to be
protected, or by any person interested in the estate,
affairs, or welfare of the protected person. This ap-
pointee could be a parent or guardian, or by any indi-
vidual or entity adversely affected by improper man-
agement of the property and affairs of the protected
person. In most states, the person to be protected
must be represented by an attorney. The court also
typically requires an independent physician’s report.
The court may appoint a conservator if it finds that
an individual is unable to manage property and finan-
cial affairs effectively for reasons including, but not
limited to, mental illness, mental deficiency, mental
disorder, physical illness or disability, chronic use of
drugs, chronic INTOXICATION, confinement, deten-
tion by a foreign power, or disappearance.
A conservatorship terminates upon the death of
the protected person or upon a court determination
that the disability of the protected person has
ceased. The protected person, the personal repre-
sentative of the protected person, the conservator,
or any other interested person or entity may petition
the court to terminate the conservatorship. Upon
termination, title of the assets passes to the former
protected person, or if deceased, as provided by the
protected person’s will.
Involuntary Commitment
A person who is a danger to self or others can,
under certain conditions, be court ordered to a men-
tal hospital. Most states allow commitment to public
and private mental hospitals, either as a voluntary pa-
tient accepted by the institution or under a court
order of involuntary commitment. Legal standards
surround the process by which those who are men-
tally ill can be forced to receive treatment. State laws
and rules regarding involuntary commitment are
subject to the due process clause of the Fourteenth
Amendment, which guarantees the right to be free
from governmental restraint and the right not to be
confined unnecessarily.
ESTATE PLANNING—GUARDIANSHIPS AND CONSERVATORSHIPS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 545
If a guardian or person is not agreeable to a volun-
tary commitment, state law provisions typically pro-
vide a procedure for emergency involuntary hospital-
ization. In the event of a voluntary hospitalization, a
person, or that person’s court-ordered guardian, re-
quests admission to the hospital. The hospital can re-
tain the patient indefinitely or discharge the patient
provided the staff determines discharge is in the best
interest of the patient and the community. In many
states, a patient on a voluntary admission who wishes
to leave must give the institution three days notice.
This gives the hospital the opportunity to apply for
involuntary commitment of the patient, if the staff
determines that is appropriate. The facility will then
typically retain the patient until the court hearing.
Public Fiduciary
A public fiduciary is a governmental official ap-
pointed to serve as guardian, conservator, or person-
al representative for those individuals or estates with
no one else willing or capable of serving. The public
fiduciary may file a petition with the court to be
named guardian/conservator if the public fiduciary
believes such a request is warranted. The court ap-
points the public fiduciary if the court finds sufficient
evidence that a person or estate is in need of the ser-
vices of the public fiduciary.
Representative Payee
Sometimes involuntary commitment or even a
guardianship or conservatorship is not the best solu-
tion. If an elderly person is no longer able to remem-
ber to write out checks but can still remember how
to eat regularly and take medication appropriately,
a representative payeeship may often be an option.
A representative payeeship is an arrangement where-
by a person’s Social Security and/or Supplemental
Security Income (SSI) checks, or even his or her pri-
vate PENSION checks, are issued to another person
who is the representative payee. This person can be
a family member, friend, social worker, attorney, or
accountant. Additionally, many utility companies, if
requested, will contact a representative third party
prior to the termination of services to an elderly per-
son. Sometimes this is sufficient to assure that an el-
derly person does not have essential services discon-
nected.
Power of Attorney
A POWER OF ATTORNEY is an authorization for one
person to transact business on behalf of another. It
can be specific as to one instance, or it can include
any conceivable business transaction. Power of attor-
ney documents were once considered void if the
maker became mentally incompetent. Most states
have now adopted the Uniform Durable Power of At-
torney Act which provides that a power of attorney
will survive even though its maker has become men-
tally incompetent.
While a power of attorney is a simple document
to draft, it has inherent pitfalls. Power of attorney can
be a useful safeguard against potential unknown fu-
ture incapacity, but it empowers someone else to
handle the financial affairs of an incapacitated per-
son. As a result, it may give rise to family disputes and
even emergency court filings in a time of family crisis.
And, unlike a court appointed guardian or conserva-
tor, there is no one charged with overseeing the ac-
tion of the individual with the power of attorney.
Joint Ownership
Most common in married couples’ financial situa-
tions is joint ownership. Individual access to bank ac-
counts can be had by either joint owner, even if the
other joint owner is incapacitated. For this reason, el-
derly people sometimes place an adult child’s name
on their accounts. This is a simple and effective way
of insuring that the child can continue to pay the par-
ent’s bills if the parent is unable to do so. It does,
however, give the child the legal ability to withdraw
everything from the entire account. Placing an adult
child’s name jointly on an asset can also present
problems to the parent if the child incurs debts, is
sued, or gets divorced. Since joint ownership means
just that, the result can be that the asset which was
once solely the parent’s can become subject to the
adult child’s creditors or soon to be ex-spouse.
While joint TENANCY can transfer assets at death
without any type of PROBATE proceedings, the legal
implications of joint tenancy are governed by state
law and will vary from state to state. In some states
with COMMUNITY PROPERTY law, property owned by
spouses in joint tenancy will not receive the same tax
treatment when one spouse dies. The joint tenancy
property can lose important benefits otherwise avail-
able to the survivor. Finally, because jointly-owned
assets transfer directly to the survivor, such property
passes outside of a will. A parent can unintentionally
ESTATE PLANNING—GUARDIANSHIPS AND CONSERVATORSHIPS
546 GALE ENCYCLOPEDIA OF EVERYDAY LAW
leave his or her property to the child who is the joint
owner, rather than having the property divided
equally among several children.
Selected State Law Provisions
FLORIDA: A grandparent, adult aunt or uncle or per-
son with power of attorney can consent to medical
care or treatment of a minor after a treatment provid-
er has failed in his or her reasonable attempt to con-
tact a parent, legal custodian or legal guardian.
Under this law, no writing is necessary to convey
consent power.
LOUISIANA: Relatives who become either a child’s
legal custodian or guardian and have an income less
than 150% of the federal poverty guidelines are eligi-
ble to receive the monthly subsidy payments.
MISSOURI: Grandparents (or other relatives) who
become either the child’s legal custodian or guardian
and attend foster parent training are eligible to re-
ceive the monthly subsidy payments.
NORTH CAROLINA: An adult who is raising a child
informally can enroll the child in a school district
where the adult is a domiciliary provided an
AFFIDAVIT is submitted of the parent, legal guardian
or legal custodian or the adult with whom the child
lives. If the parent is unable, refuses or is unavailable
to submit the affidavit, the adult’s affidavit should in-
clude a statement that the parent is unable, refuses
or is unavailable.
PENNSYLVANIA: A parent, legal guardian or custodi-
an may give an adult, including a relative caregiver,
authorization to consent to medical or mental health
care for the child. The authorization can be in any
written form and must be signed by the parent, legal
guardian or custodian and witnessed by two adults,
neither of whom is the person to whom authoriza-
tion is being given. There is no time limit on this au-
thorization, but can be revoked at will. Furthermore,
the death of the parent, legal guardian or custodian
who executed the authorization will automatically re-
voke the authorization.
Additional Resources
‘‘Bringing Some Sense to Civil Commitment Hearings.’’
Davoli, Joanmarie I. 2 Catalyst 9 (2000).
Organizations
The Elder Law Project Legal Services for
Cape Cod and Islands, Inc.
460 West Main Street
Hyannis, MA 02601 USA
Phone: (508) 775-7020
National Academy of Elder Law Attorneys,
Inc.
1604 North Country Club Road
Tucson, AZ 85716 USA
Phone: (520) 881-4005
Fax: (520) 325-7925
URL: http://www.naela.com/
National Alliance for the Mentally Ill
2107 Wilson Blvd., Suite 300
Arlington, VA 22201 USA
Phone: (703) 524-7600
URL: http://www.nami.org/
ESTATE PLANNING—GUARDIANSHIPS AND CONSERVATORSHIPS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 547
This Page Intentionally Left Blank
ESTATE PLANNING
INTESTACY
Sections within this essay:
• Background
• Intestacy
- Partial Intestacy
- Determining Who Will Receive a
Share of an Intestate Estate
- Intestacy Laws and Surviving
Spouses
- Intestacy and Marital Property
• Typical Intestacy Distribution Methods
- If the Intestate Decedent is Married
but has no Children
- If the Intestate Decedent is Married
and has Children
- If the Intestate Decedent is a Single
Person with Children
- If the Intestate Decedent is a Single
Person with no Children
• Estate and Inheritance Tax Considerations
• Additional Resources
Background
When a person dies (the decedent), a major con-
cern for those surviving the decedent is how to dis-
tribute the decedent’s property, or the estate. An
age-old problem, this issue has mattered greatly in
the past, and it still does. Accordingly, the law has de-
veloped to govern not only how the decedent’s per-
sonal property and real property is distributed to
heirs but also how important privileges as well as
debts and other responsibilities are passed down to
later generations.
Because this issue reaches into ancient times and
the consequences of INHERITANCE can be so impor-
tant, there is an enormous body of STATUTORY and
CASE LAW relating to ‘‘who gets what’’ when someone
dies. There are several key components to these
laws. For example, there are laws about wills, trusts,
and other methods of leaving property in addition to
wills, jurisdiction of PROBATE courts, qualifications
and duties of executors of wills, and estate and inher-
itance taxes. Tax consequences for the estate and
heirs are important considerations when individuals
plan their estates. Whether individuals die with a will
or INTESTATE, there are tax consequences for estates
and potentially for those who would INHERIT proper-
ty according to the laws of INTESTACY. The negative
tax consequences and other potentially unintended
consequences that can flow from dying intestate are
major reasons that prompt people to create wills.
Intestacy
When a decedent does not leave a legally binding
will, this state is called dying intestate. The estate of
a decedent (an estate is the sum of the decedent’s
property), who dies intestate is distributed according
to the intestacy laws where the decedent was domi-
ciled and/or where the decedent owned real proper-
ty. Federal law leaves the creation of intestacy laws
largely up to the states. Consequently, intestacy laws
and judicial decisions vary from state to state. Intesta-
cy statutes basically ‘‘create’’ a will for the decedent
if the individual died intestate.
The most common way for individuals to influ-
ence how their property gets distributed when they
die is to create a will. Wills are legal documents that
help heirs and courts; local, state and federal govern-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 549
ments; and the decedent’s creditors know how to
distribute that person’s property upon death. There
is more information about wills in The Gale Encyclo-
pedia of Everyday Law under the topic ‘‘Wills.’’
Partial Intestacy
If someone dies and has made a will, all state laws
strongly favor the decedent’s intentions as expressed
in his will. However, even if the individual has made
a will, it is possible for the person to die partially in-
testate. This situation occurs when a gift in the will
is invalid for some reason, or if the terms of the will
simply do not cover all of the property. For example,
if the will only disposes of personal property (like
jewelry, art, automobiles, and antiques), the PERSONAL
PROPERTY will be distributed to those named in the
will according to the terms of the will. However, if
the individual had purchased a parcel of land after
the person made the will and failed to later include
that land in the will, then the real estate may pass to
the heirs under the laws of intestacy. And in some
states, if an otherwise valid will is not properly filed
with the probate court within a specific time, the en-
tire estate will be distributed according to the state
intestacy scheme. Needless to say, these situations
may not at all be what the decedent wanted to hap-
pen.
Determining Who Will Receive a Share of an
Intestate Estate
If individuals die intestate, their state’s intestacy
laws will make assumptions about how they would
want to leave their property. Some of these assump-
tions may be correct, and others may result in the
distribution of property in a manner far different
from their wishes. The law will determine who will
inherit the property (heirs) and how the property
will be divided among the heirs, but it cannot deter-
mine who will receive specific items of property. For
example, the law may state that the two children, a
daughter and a son, will each take one half of the es-
tate, but it may not say that the daughter should re-
ceive the decedent’s mother’s wedding ring and the
decedent’s son should receive the decedent’s an-
tique desk. Leaving such issues for a judge or other
official to determine can cause squabbles among
heirs, expense to the estate, and long delays in dis-
posing of the property.
For the most part, states assume that the closer
individuals are related to someone, the more likely
the decedent would want the property to go to those
persons when the decedent dies. In this way, intes-
tate laws generally favor blood relations over other
types of relationships. It is also common for state
laws to require that heirs survive the decedent by a
certain amount of time. This time can be expressed
in hours, days, or months, depending on the state.
These rules become important when there is an
event in which several members of a family are killed
at or about the same time. They generally apply
whether or not the decedent had a will.
Intestacy Laws and Surviving Spouses
Of course, there are also many laws that pertain
to surviving spouses of decedents who die intestate.
Like other aspects of intestacy, these laws vary con-
siderably from state to state. While it seems safe to
assume that the spouse will inherit the entire estate
if the decedent dies without a will, this is not neces-
sarily the case. It is true that spouses usually inherit
the greatest portion of the decedent’s estate; howev-
er, intestacy laws almost always divide the estate be-
tween the decedent’s spouse, children, and some-
times even the decedent’s parents. If there are no
spouse or children, and if the decedent’s parents are
dead, then the estate usually is distributed among
the decedent’s siblings or other relatives according
to specific rules delineated in the statutes.
It is crucial to keep in mind that state intestacy
laws can differ significantly from one state to the
next. For example, most states set aside an allowance
for a surviving spouse and/or children. This can be
true whether or not there is a will. This amount is
usually modest, but it is free from any other claims
against the estate or debts of the decedent. In these
cases, the spouse and/or children take a specific dol-
lar amount of the estate. Their doing so occurs be-
fore the creditors, heirs, and other beneficiaries re-
ceive their shares of what remains. There are great
differences in these allowances among the states. For
example, this amount is set at $50,000 in California,
but only $2,000 in Delaware. If there is no will, many
states also give the surviving spouse a definite finan-
cial interest in any real estate owned by the dece-
dent, such as ‘‘one-half,’’ or a ‘‘life estate.’’
Intestacy and Marital Property
The portion of an estate that is distributed to the
spouse of a decedent who dies intestate depends to
some extent on other laws governing marital proper-
ty in the decedent’s state. For example, in states
which employ a COMMUNITY PROPERTY scheme,
spouses generally own equal rights to all marital
property, regardless of whose name is on the title of
the property. But this general rule has some impor-
tant exceptions. There are currently nine community
property states: Arizona, California, Idaho, Louisiana,
ESTATE PLANNING—INTESTACY
550 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Nevada, New Mexico, Texas, Washington, and Wis-
consin.
In a typical situation involving community proper-
ty for a decedent who dies intestate, the decedent’s
share of the community property owned at the time
of death will pass automatically to the surviving
spouse. Property that the decedent owned individu-
ally (e.g. certain property owned prior to the mar-
riage) is usually divided between the surviving
spouse and any children. The spouse usually takes
one quarter of this individual property and surviving
children take the remaining three-quarters of the
property. For individuals living in a community prop-
erty state, the complexity of the intestacy and other
probate laws make it is especially important to con-
tact competent legal advice when planning their es-
tates.
Typical Intestacy Distribution Methods
What happens to their property if individuals die
without a will? The answer to this question depends
on many factors. Because of the variability of the re-
sponse, it is perhaps best to explain through illustra-
tions. Here are four examples of some of the most
common distribution methods under typical intesta-
cy laws.
• If the Intestate Decedent is Married but has
no Children
• If the intestate decedent is married but has
no children, most people would probably
think that the decedent’s surviving spouse
would take everything in the estate. Howev-
er, most states distribute between one-third
to one-half of the estate to the surviving
spouse. Anything remaining generally goes
to the decedent’s surviving parent or par-
ents. If both of the decedent’s parents are
dead, many state intestate statutes DECREE
that the remaining portion be distributed
among the decedent’s surviving brothers
and sisters.
• If the Intestate Decedent is Married and has
Children
• If the intestate decedent is married and has
children, it seems reasonable to assume that
the surviving spouse/parent would take all of
the deceased spouse’s property, especially if
the children are minors at the time of the de-
cedent’s death. Yet, most intestacy statutes
distribute just one-third to one-half of the
decedent’s property to the surviving spouse.
The remainder is divided among the dece-
dent’s surviving children, regardless of their
ages.
• If the Intestate Decedent is a Single Person
with Children
• If the intestate decedent is a single person
with children, state intestacy laws uniformly
decree that the entire estate will be distribut-
ed equally among the children, regardless of
their ages or circumstances. For example, an
adult child will receive the same amount as
a minor child, and a wealthy child will take
the same share as a child in more modest cir-
cumstances. The only determining factor is
the blood relation to the decedent. Most
states also make no distinction between sib-
lings of whole blood and siblings of half
blood. Thus, in a case where a decedent has
children from two marriages, each child
from both marriages will take an equal share
of the decedent’s estate. Likewise, intestacy
laws in all states treat legally adopted chil-
dren the same as full-blooded relations of
the decedent. The laws may differ signifi-
cantly with respect to the decedent’s step-
children and illegitimate children.
• If the Intestate Decedent is a Single Person
with no Children
• If the intestate decedent is a single person
with no children, most state intestacy laws
favor the decedent’s parent(s) in the distri-
bution of his/her property. If both parents
predecease the decedent, many states divide
the property among the decedent’s surviv-
ing brothers and sisters.
Intestacy laws that distribute property to surviving
children and other relatives use various formulas to
divide the property. In a state that employs a ‘‘per
capita’’ method, the heirs receive equal shares. For
example, if there are eleven heirs of a decedent who
dies intestate, each will receive one-eleventh of the
decedent’s estate. Other states have more complicat-
ed schemes that determine the amount of an heir’s
share according to the degree of relationship to the
decedent. For example, let us say that a decedent has
two adult children. One of these children is dead, but
has two surviving children (the decedent’s grandchil-
dren). So in the present case, the decedent’s surviv-
ing adult child would take one half of the estate and
ESTATE PLANNING—INTESTACY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 551
the decedent’s two grandchildren would share their
deceased parent’s half share, each taking one-
quarter of the estate. These examples show that the
methods of distributing property under intestacy law
can range from fairly simple to quite complex.
Escheat
If the intestate decedent has no living spouse,
children, parents, or siblings, intestacy laws provide
mechanisms to determine other blood relatives qual-
ified to take the estate. Overall, there is a strong stat-
utory preference to distribute the decedent’s prop-
erty to heirs, regardless of how remote they may be
to the decedent. Sometimes, the search for heirs can
be time-consuming and expensive. The estate bears
the expense of a search for heirs. However, in those
rare cases where no living HEIR can be located, then
the decedent’s estate will escheat to the state, that
is, the state takes ownership of the decedent’s prop-
erty. Escheat is rare and almost never what the dece-
dent wanted or expected to happen with the estate.
Estate and Inheritance Tax
Considerations
When a person dies the federal and state govern-
ments may impose taxes on the transfer of the prop-
erty. This is true whether the person dies with a will
or intestate. These taxes are calculated according to
the rules of estate tax law. In some cases, the proper-
ty received by heirs may also be taxed according to
inheritance tax laws. The inheritance tax is usually
determined by the amount of property received by
the BENEFICIARY, as well as by the beneficiary’s rela-
tionship to the decedent. Basically, it is a tax on the
right to receive the property. Every state except Ne-
vada imposes either an estate tax or an inheritance
tax; some states employ both. Inheritance taxes are
not levied in addition to federal estate taxes because
the federal law allows an offset for the payment of
state death taxes. The maximum taxes in states with
inheritance taxes are:
• Delaware 16%
• Kansas 15%
• Kentucky 16%
• Indiana 15%
• Iowa 15%
• Maryland 10%
• Massachusetts 16%
• Michigan 17%
• Mississippi 16%
• Montana 32%
• Nebraska 18%
• New Hampshire 15%
• New Jersey 16%
• North Carolina 17%
• Ohio 7%
• Oklahoma 15%
• Pennsylvania 15%
• South Dakota 30%
• Tennessee 13%
Currently, the estate of a decedent is liable for a
tax if the estate exceeds $650,000. The United States
has recently enacted new laws that will increase this
amount in certain increments over the next several
years. In calculating the value of an estate for tax pur-
poses one starts with the premise that all property
owned by the decedent at the time of death is poten-
tially subject to tax. This amount can be modified by
several factors:
• The decedent’s debts
• Certain transfers to charity
• Certain transfers to the decedent’s spouse
• Some CASUALTY and theft losses
An intestate estate is the most exposed to estate
and inheritance tax liability. The greater the value of
the estate, the greater the tax burden on the estate—
and potentially on the beneficiaries of the estate.
This fact is a powerful inducement for many people
to seek estate–planning advice. There are several
methods to shield the value of an estate from estate
and inheritance tax laws. Along with the creation of
a will, some of these methods may include the cre-
ation of a trust, purchasing life insurance policies,
and making transfers of property prior to your death,
known as inter vivos gifts. Attorneys and accountants
provide for more specific information about estate
and inheritance tax rules.
Individuals who do have wills and believe they
would distribute their property differently than their
state’s intestacy distribution plan should consult
their attorneys for advice on estate planning and
wills. Likewise, if they believe they are the beneficia-
ries of an intestate decedent’s estate, they should
ESTATE PLANNING—INTESTACY
552 GALE ENCYCLOPEDIA OF EVERYDAY LAW
check with their own attorneys for information about
the specific laws governing their particular situation
and advice about how to proceed to claim their share
of the estate. Intestacy laws differ in very significant
ways from state to state; understanding their applica-
bility to you may require the advice from an attorney.
Additional Resources
The American Bar Association Guide to Wills & Estates.
American Bar Association, Times Books, 1995.
‘‘Crash Course in Wills and Trusts.’’ Palermo, Michael T.,
Attorney at Law, 2001. Available at: http://
www.mtpalermo.com.
‘‘Estate Planning Resources.’’ EstatePlanningLinks.com,
2001. Available at: http://www.estateplanninglinks.com/
ep.html#highlighted
The Estate Planning Sourcebook. Berry, Dawn Bradley,
Lowell House, 1999.
‘‘Inheritance and Estate Tax.’’ Available at: http://
www.lawyers.com/lawyers-com/content/aboutlaw/
taxation_3.html.lawyers.com, 2001.
Restatement of the Law, Property Wills and Other Dona-
tive Tranfers. American Law Institute, West Publish-
ing,1999.
The Wills and Estate Planning Guide: A State and Territo-
rial Summary of Will and Intestacy Statutes. American
Bar Association, The Association, 1995.
Wills and Trusts in a Nutshell. Mennell, Robert L., West
Publishing, 1994.
‘‘Wills, Trusts, Estates and Probate.’’ FindLaw, 2001. Avail-
able at: http://www.findlaw.com/01topics/31probate/
index.html.
Organizations
The American Academy of Estate Planning
Attorneys
9360 Towne Centre Drive, Suite 300
San Diego, CA 92121 USA
Phone: (800) 846-1555
Fax: (858) 453-1147
E-Mail: information@aaepa.com
URL: http://www.aaepa.com
General Practice, Solo and Small Firm
Section
American Bar Association (ABA)
750 N. Lake Shore Drive
Chicago, IL 60611 USA
Phone: (312) 988-5648
Fax: (312) 988-5711
URL: www.abanet.org/genpractice
E-Mail: genpractice@abanet.org
American Bar Association (ABA), Taxation
Section
740 15th Street NW, 10th Floor
Washington, DC 20005-1009 USA
Phone: (202) 662-8670
Fax: (202) 662-8682
E-Mail: taxweb@staff.abanet.org
URL: http://www.abanet.org/tax/home.html
American College of Trust and Estate
Counsel
3415 South Sepulveda Boulevard, Suite 330
Los Angeles, CA 90034 USA
Phone: (310) 398-1888
Fax: (310) 572-7280
E-Mail: info@actec.org
URL: http://www.actec.org
Americans for Tax Reform (ATR)
1920 L Street NW, Suite 200
Washington, DC 20036 USA
Phone: (202) 785-0266
Fax: (202) 785-0261
URL: www.atr.org
National Network of Estate Planning
Attorneys, Inc.
One Valmont Plaza, Fourth Floor
Omaha, NE 68154-5203 USA
Phone: (800) 638-8681
E-Mail: webmaster@netplanning.com
URL: http://www.netplanning.com
The National Academy of Elder Law
Attorneys
1604 North Country Club Road
Tucson, AZ 85716 USA
Phone: (520) 881-4005
Fax: (520) 325-7925
URL: http://www.naela.com
ESTATE PLANNING—INTESTACY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 553
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ESTATE PLANNING
LIFE INSURANCE
Sections within this essay:
• Background
• Types of Insurance
- Individual Life Insurance
- Group Life Insurance
- Second-To-Die and First-To-Die In-
surance
- Term Life Insurance
- Cash Value Life Insurance
- Traditional Whole Life and Universal
Life
- Variable Life and Variable Universal
Life
• Insurable Interest
• Examinations
• Claims
- Denial of Claims
- Exclusions
• Insurance Regulation
• Rates
• Minors As Beneficiaries
• Additional Resources
Background
A life insurance policy is simply a contract be-
tween an insurance company and the person who
buys the policy, the policyholder. In exchange for
payment of a specified sum of money, known as a
premium, the life insurance company pays a named
BENEFICIARY a certain amount of money if specific
events occur while the policy is in force. In life insur-
ance policies the most common event is the death
of the person who is insured, in which case the pay-
ment is made to the beneficiary, which may be a per-
son, a trust or other legal entity, or the estate of the
owner. Some policies also allow the owner to surren-
der the policy for its cash value or to take advance
payments on the insurance in the event of diagnosis
of a terminal condition. The sale of life insurance in
the United States has historically been a highly com-
petitive commission sales business with a number of
products which combine life insurance and invest-
ments.
Types of Life Insurance
Despite their various names, all life insurance poli-
cies fall into either individual or group insurance pol-
icies. The difference between Individual and Group
Life has become less distinct. Many associations
sponsor life insurance plans that are called Group
Life coverage but which actually require the same un-
derwriting criteria as for Individual Life.
Individual Life Insurance
Individual Life insurance generally is underwritten
taking into account the actuarial risk of death of the
one individual being insured. Life insurance compa-
nies’ underwriters typically use a combination of fac-
tors that statistics indicate equate with the risk of
death. These include, but are not limited to appli-
cant’s age, applicant’s gender (except in states which
have uni-sex rate requirements), height and weight,
family and applicant health history, marital status,
number of children, hazardous occupations, tobacco
GALE ENCYCLOPEDIA OF EVERYDAY LAW 555
use, alcohol use, dangerous hobbies, and foreign
travel.
Group Life Insurance
Group Life insurance policies cover the lives of
multiple persons within a group. Group Life insur-
ance historically was based on the risk characteristics
of the group as a whole. The group might consist of
employees of a business, members of a professional
organization, members of a CREDIT UNION, or perhaps
members of a LABOR UNION. There are many other
possibilities for these groups. The owner of the mas-
ter group policy is the group itself, such as the em-
ployer, the union, the association, or whatever the
group may be.
Second-To-Die and First-To-Die Insurance
Most so–called Second–to–Die policies which pay
upon the death of the second of two insured people
are still regarded as Individual Life insurance. Similar-
ly the so–called First to Die life insurance, where the
lives of a small number of people are covered and the
life insurance is payable on the first death is also Indi-
vidual Life insurance. First to Die is often used to
cover partners in a business. The proceeds can be
used to buy out the share of the partner who dies
first.
Term Life Insurance
Either Group or Individual polices can be Term
Life Insurance. Term Life Insurance is basic insurance
in the event of death. The policy owner pays a premi-
um to the insurance company; it can typically be paid
monthly, quarterly, or annually. If the insured dies
during the time period that the payments are being
made, the insurance company pays the face amount
of the life insurance to the beneficiary. As the risk of
death increases as people get older, the premium
generally also increases. At advanced ages, term in-
surance costs are extremely expensive.
Cash Value Life Insurance
Cash Value Life Insurance has the same benefits
of Term Life Insurance with a savings or investment
account. There are several types of Cash Value Life
policies.
Traditional Whole Life and Universal Life
In Traditional Whole Life and Universal Life Insur-
ance policies, money that does not go to pay insur-
ance costs or the sales representative’s commission
is invested by the insurance company in fixed dollar
type investments. Whole-life policies combine life
coverage with an investment fund. Cash value builds
tax-free each year, and policyholder can usually bor-
row against the cash accumulation fund without
being taxed. Universal life is a whole-life policy that
combines term insurance with a money-market-type
investment that pays a market rate of return. To get
a higher return, these policies generally do not guar-
antee a certain rate. However, sales of universal poli-
cies tend to be higher than those of plain whole life,
due to the higher potential yield.
Variable Life and Variable Universal Life
In Variable Life and Variable Universal Life poli-
cies, money that does not go to pay insurance costs
or the sales representative’s commission is invested
by the insurance company in SECURITIES MUTUAL FUND
accounts selected by the owner from among the in-
surer’s available choices. Returns are not guaranteed.
Variable products are regulated as securities under
the Federal Securities Laws and must be sold with a
prospectus.
Insurable Interest
A basic requirement for all types of insurance is
the person who buys a policy must have an insurable
interest in the subject of the insurance. With respect
to life insurance, an insurable interest means a sub-
stantial interest engendered by love and affection in
the case of persons related by blood and a lawful and
substantial economic interest in the continued life of
the insured in other business related cases. Everyone
has an insurable interest in their own lives and in the
lives of their spouses and dependents. Business part-
ners may have an insurable interest in each other,
and a corporation may have an insurable interest in
its employees’ lives. The insurable interest require-
ment is designed to prevent people from taking out
a life insurance policy on some randomly selected
persons and then killing them to get the insurance
proceeds. The rule also prevents life insurance from
becoming a gambling device and prevents someone
from taking out insurance policies simply because
people are known smokers or known to drink and
drive. However, it is not necessary for the beneficiary
to have an insurable interest in the life of the insured.
Examinations
On larger policies, most life insurance companies
require the applicant to undergo a physical
EXAMINATION by a medical professional. Samples of
the applicant’s blood and urine typically are taken by
a paramedical person contracted by the insurance
carrier to conduct such tests. The insurer will typical-
ESTATE PLANNING—LIFE INSURANCE
556 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ly also request the applicant’s medical records from
his or her physicians and have them reviewed by the
underwriters. The insure usually will also check the
applicant’s health history with the Medical Informa-
tion Bureau (MIB).
MIB is a not-for-profit incorporated association of
U. S. and Canadian life insurance companies. It is a
provider of information and database management
services to the financial services industry. Organized
in 1902, MIB now consists of over 600 member insur-
ance companies who agree to share information in
the form of medical and avocation codes. There are
approximately 230 codes, which MIB uses to signify
different medical conditions. Some of the codes indi-
cate risks involving hazardous avocations or adverse
driving records. While the MIB does not report actual
details about the person’s medical condition or prob-
lem, the codes alert insurance companies to the fact
that there was information obtained and reported by
a member insurance company on this particular im-
pairment or avocation risk. Individuals can request
their own MIB record and can request that the com-
pany correct any errors. There is a small processing
fee to obtain a report, which is waived if the request
is within 60 days of an adverse underwriting decision.
All MIB codes are supposed to be purged seven years
from the report date.
Claims
Every life insurance policy specifies certain actions
that must take place after a loss has occurred. Typi-
cally the beneficiary provides the life insurance com-
pany with a CERTIFIED COPY of the death certificate.
After proof of the death is submitted to the insurance
company, the life insurance company should
promptly pay the benefits, assuming that the premi-
ums were paid, making the policy in force. Even if
premiums on the policy were not currently being
paid, the policy may still have been in a paid status,
or the company may have failed to send the neces-
sary notices of cancellation, in which case it may be
possible to recover on the policy. Usually, once the
policy is at least two years old it is beyond the incon-
testable period and must be paid, except in extraor-
dinary circumstances.
Denial of Claims
The most common reason life insurance compa-
nies use to deny claims is that there was a material
misrepresentation in connection with the insurance
purchase. The claim regarding material misrepresen-
tation may arise out of the original application for the
insurance or from an amendment to the application
or in an application for reinstatement. A material mis-
representation sufficient to deny a claim cannot be
just any incorrect statement. A material misstatement
is almost always one that if it had been disclosed
would have meant refusal by the insurer to issue the
policy. The most commonly alleged misrepresenta-
tions involve an applicant’s medical history. Delays
in processing claims can sometimes result from legal
questions regarding whether the policy was current-
ly in force as of the date of death, or, if the death was
a result of foul play, any possibility that the benefi-
ciary may have played a role in the death
Exclusions
An exclusion is a part of an insurance policy which
describes a condition or type of loss that is not cov-
ered by the policy. In life insurance, a common exclu-
sion is an exception for accidental deaths caused by
acts of war or while in active military service. Certain
activities may also fall under the exclusion category.
Some policies have an exclusion for deaths that
occur while the insured was involved in the commis-
sion of a FELONY, or deaths resulting from suicide.
Insurance Regulation
Because insurance companies handle large
amounts of money on behalf of individuals and busi-
nesses, the level of PUBLIC INTEREST is sufficient to
WARRANT governmental regulation. Historically, the
purpose of insurance regulation has been to main-
tain the insurers’ financial SOLVENCY and soundness
and to guarantee the fair treatment of current and
prospective policyholders and beneficiaries. There is
no central Federal regulatory agency to specifically
oversee insurance companies, and as a result, insur-
ance companies in the United States are regulated by
the individual states. These regulations include rules
about matters such as forms, rates, sales agents, and
general insurance business practices.
State laws regulating insurance business also in-
clude rules about unfair trade practices and unfair
claims practices. It is illegal to refuse to sell insurance
to someone because of the person’s race, color, sex,
religion, national origin, or ancestry. In some states
the list of prohibited classifications includes marital
status, age, occupation, language, sexual orientation,
physical or mental impairment, or the geographic lo-
cation where a person lives. Insurance underwriting
decisions generally must be based on reasons that
are related in some way to risk. A person has the
ESTATE PLANNING—LIFE INSURANCE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 557
right to be informed of any reason for refusal to issue
an insurance policy.
Rates
Insurance companies have a range of payment or
premium levels which can be charged for insurance.
These are based on such factors as the applicant’s
age and health condition. Rating factors must be rea-
sonably related to the risk being insured. The rates
and rating factors for insurance must be filed with
the insurance regulatory agency for each state where
the insurance is to be sold. While a policyholder may
elect to cancel an insurance policy at any time by giv-
ing notice to the insurance company, once a policy
is issued, the insurance company cannot simply re-
voke it at will. The insurance company can only can-
cel the policy for reasons specifically outlined in the
policy. State laws typically put limits on what an in-
surance company can include in the cancellation sec-
tion of its policies. Generally, policies will be subject
to cancellation only for some type of serious misrep-
resentation by the policyholder or for failure to pay
the required premium on time. State law often re-
quires insurers to allow a GRACE PERIOD of as much
as 30 days after a payment is late before any insur-
ance coverage can be terminated. Once the grace pe-
riod expires, however, reinstatement is the sole op-
tion of the insurance company.
Minors as Beneficiaries
While children can lawfully be named as beneficia-
ries on a life insurance policy, the insurance compa-
ny will not be permitted to pay benefits to a minor.
The funds would likely be dispersed to the legal
GUARDIAN of the minor child. Many divorced parents
are shocked to discover that naming their minor chil-
dren as beneficiaries makes their ex-spouse the di-
rect recipient of any insurance proceeds. This situa-
tion can be avoided by creating a trust which can
hold the funds until the children are of LEGAL AGE.
Additional Resources
Insurance: From Underwriting to Derivatives: Asset Lia-
bility Management in Insurance Companies. Briys,
Eric, Wiley, John & Sons, Incorporated, 2001.
True Odds: How Risks Affects Your Life. Walsh, James,
Merritt Company, 1995.
Organizations
American Council of Life Insurers
1001 Pennsylvania Avenue, N.W.
Washington, DC 20004
Phone: (202) 624-2416
Fax: (202) 624-2319
Primary Contact: Herb Perone, Director of Media
Relations
National Alliance of Life Companies
10600 West Higgins Road, Suite 607
Rosemont, IL 60018
Phone: (847) 699-7008
Fax: (847) 699-7119
URL: http://www.nalc.net
Primary Contact: Scott Cipinko, Executive Director
National Association of Independent Life
Brokerage Agencies (NAILBA)
8201 Greensboro Drive, Suite 300
McLean, VA 22102
Phone: (703) 610-9020
Fax: (703) 610-9005
URL: http://www.nailba.com
ESTATE PLANNING—LIFE INSURANCE
558 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ESTATE PLANNING
POWER OF ATTORNEY
Sections Within This Essay
• Background
• Agent
• Creating a Power of Attorney
• Types of Powers of Attorney
- General Power of Attorney
- Special or Limited Power of Attorney
- Springing Power of Attorney
- Durable Power of Attorney
• Revoking a Power of Attorney
• Additional Resources
Background
A POWER OF ATTORNEY is a legal instrument that in-
dividuals create and sign; it gives someone else the
authority to make certain decisions and act for the
signer. The person who has these powers is called an
‘‘agent’’ or ‘‘attorney-in-fact.’’ The signer is the ‘‘prin-
cipal.’’ Merely because the word ‘‘attorney’’ is used
does not mean that the agent must be a lawyer.
Even if principals have delegated authority to an
agent through a power of attorney, they can still
make important decisions for themselves. But, their
agents may act for them as well. Their agents must
follow directions as long as they are capable of mak-
ing decisions for themselves. A power of attorney is
simply one way to share authority with someone
else.
As a principal, if the principal’s decisions conflict
with those of the agent, the principal’s decision will
govern, assuming that the agent confers with the
principal prior to taking an action. Be aware that if
the agent has acted on the principal’s behalf and
acted within the scope of authority granted by the
power of attorney, then the principal may be obligat-
ed by the terms and conditions of his actions. If the
agent does not respect the principal’s wishes, the
principal should revoke the power of attorney.
Principals can revoke their agent’s authority at any
time if they become dissatisfied with the agent’s per-
formance. If they do not revoke a power of attorney
themselves, it will automatically expires upon their
death. The power of attorney is not a substitute for
a will. Upon the principal’s death, either the will or
the state’s law of INTESTACY will govern the distribu-
tion of the estate.
Agent
The person designated to be the agent assumes
certain responsibilities. First and foremost, the agent
is obligated to act in the principal’s best interest. The
agent must always follow the principal’s directions.
Agents are ‘‘fiduciaries,’’ which means that the agent
must act with the highest degree of GOOD FAITH in be-
half of their principals.
Although an agent is supposed to make decisions
in the principal’s best interest and to use the princi-
pal’s money and other assets only for the principal’s
benefit, the agent nevertheless has great freedom to
act as he or she pleases. Thus, it is crucial that trust-
worthy individuals are chosen to execute a power of
attorney. Before selecting an agent, principals should
ask themselves the following questions:
• Do I trust the candidate for agent?
GALE ENCYCLOPEDIA OF EVERYDAY LAW 559
• Will the agent understand my feelings and
my point of view?
• Will the agent follow my wishes if I am ever
incapacitated?
• Will the agent do the necessary work and
spend the time to properly handle my af-
fairs?
• Will the agent be able to visit me or to keep
in contact by phone?
• Is this person informed about finances?
• Will the agent need to seek the help of ex-
perts?
An agent’s relationship with the principal is gov-
erned by several basic rules. The agent must:
• Keep his money separate from the princi-
pal’s,
• Keep detailed records concerning all trans-
actions he engages in on the principal’s be-
half,
• Not stand to profit by any transaction where
the agent represents the principal’s inter-
ests,
• Not make a gift or otherwise transfer any of
the principal’s money, PERSONAL PROPERTY,
or real estate to himself unless the power of
attorney explicitly states he can do so.
Principals usually grant their agents fairly broad
powers to manage their finances and to conduct fi-
nancial transactions in their behalf. Even so, princi-
pals can grant their agents as much or as little author-
ity as they think reasonable. Typical powers include
the authority to do the following:
• Act for the principal with respect to inheri-
tances or claim property to which the princi-
pal is otherwise entitled,
• Collect the principal’s Social Security,
MEDICARE or other governmental benefits,
• Conduct real estate transactions (purchase,
sell, MORTGAGE, etc.),
• Conduct transactions with banks and other
financial institutions,
• File and pay the principal’s state, federal,
and local taxes,
• Hire a lawyer to represent the principal in
court,
• Make investment decisions for the principal
(purchase and sell stocks, BONDS, mutual
funds, etc.),
• Manage the principal’s retirement funds,
• Purchase or sell insurance policies and annu-
ities for the principal
• Run the principal’s business, and
• Use the principal’s money to pay the princi-
pal’s living expenses.
Whatever powers the principal gives the agent,
the agent must act for the principal’s best interests,
must maintain accurate records, keep the principal’s
property separate from his or hers and avoid con-
flicts of interest.
Agents are sometimes paid for their work on the
principal’s behalf. This depends on the nature of the
relationship between the agent and the principal, as
well as the nature of the agent’s duties. In most situa-
tions where the agent’s duties are fairly simple, there
is no payment for the performance of those duties.
If, however, the agent is saddleburdened with sub-
stantial responsibilities (such as running a business
or managing a complex transaction), payment for the
agent’s services may be appropriate. If the principal
wishes to or expects to pay the agent, the principal
should clearly say so and outline the details of pay-
ment in the power of attorney. Because of the impor-
tance of the agent’s duties and the potential for mis-
take, misunderstanding, or even outright
overreaching, the agent will usually be required to
maintain separate and accurate records and make
them available to the principal or to persons the
principal designates.
Creating a Power of Attorney
When individuals create a power of attorney they
are stating what they want their agent to be able to
do for them. For the power of attorney to be effective
the principal must be competent to give this authori-
ty. In other words, the principal must know and un-
derstand what types of decisions need to be made.
If the principal is mentally competent, but physically
unable to sign his name, any mark the principal
makes with the full intention that other regard the
mark as the principal’s signature will be acceptable.
In most cases when individuals create a power of
attorney, their signature on the form should be wit-
nessed by a NOTARY PUBLIC. If the power of attorney
ESTATE PLANNING—POWER OF ATTORNEY
560 GALE ENCYCLOPEDIA OF EVERYDAY LAW
grants the power to sell, LEASE, or otherwise dispose
of the principal’s real estate, the principal should
also have the power of attorney recorded with the
Registry of Deeds. The Registry of Deeds usually will
be located in the county courthouse wherein which
the property is located. The principal should give the
agent the original power of attorney document to
show to any person, business, or organization in-
volved in the transactions. The principal should keep
a copy for his records. If the principal intends to
delay the agent’s ability to conduct business for the
principal, he may choose to keep the original docu-
ment himself until such time as he wants the power
of attorney to be used.
In order to create a legally effective power of attor-
ney, the principal must be mentally competent. The
principal needs to know and understand what he is
doing. A person who is mentally incapacitated can-
not meet these requirements. The law does not re-
quire the principal to hire a lawyer to draft the power
of attorney. However, if the principal intends to grant
important powers to the agent, it is a good idea to
seek legal advice before the principal signs the docu-
ment. The principal should make sure that he under-
stands the details built into the power of attorney as
well as the potential for legal or financial difficulties
it may present.
In most instances, all the principal needs to do to
create a legally valid power of attorney is properly
complete and sign (before a notary public) a fill-in-
the-blanks form that’s is a few pages long. Besides
the nearly universal requirement for a power of attor-
ney to be witnessed by a notary republic, there are
few formalities to executing a power of attorney.
Some states require a certain number of competent
witnesses to watch the principal sign the document
before the notary, and some states recommend cer-
tain forms, but none of them are mandatory to create
a valid power of attorney. But some powers can be
delegated to an agent only if they are specifically
mentioned in the power of attorney document.
Those requiring explicit language include the power
to do the following:
• Make gifts of the principal’s money or other
assets,
• Amend the principal’s will or COMMUNITY
PROPERTY agreement,
• Name beneficiaries of the principal’s insur-
ance policies.
If the principal is married and are concerned
about what would happen if the principal’s spouse
became ill and needed nursing home care or other
long-term care, the principal may want to add some
additional specifically authorized powers. It may be
helpful for MEDICAID eligibility to include the power
to revoke a community property agreement and to
transfer property from the disabled spouse to the
principal. It is a good idea to consult with a lawyer
about these more complicated issues.
When individuals create a power of attorney, they
can name two or more people to serve as agents at
the same time. They can also name an alternate
agent to assume powers under the power of attorney
under certain circumstances, such as the death or in-
capacity of the first agent. Before principals give au-
thority under their power of attorney to more than
one person at the same time, they should consider
whether confusion or some other conflict may result.
It is wise to discuss the potential advantages and dis-
advantages with a lawyer before giving powers of at-
torney to more than one person.
Types of Powers of Attorney
General Power of Attorney
A general power of attorney is one that permits
the agent to conduct practically every kind of busi-
ness or financial transaction—with the principal’s as-
sets—without any restraints. Because of the great
harm to the principal’s financial well-being that an in-
competent or untrustworthy agent can cause with a
general power of attorney, the principal should be
extremely careful in choosing an agent. Additionally,
the principal should maintain vigilance over the
agent’s transactions in the principal’s behalf.
Special or Limited Power of Attorney
A special power of attorney, also known as a limit-
ed power of attorney, is created to empower an
agent to perform a specific act or acts. For example,
if the principal is unable to do it himself, he can pre-
pare a special power of attorney so that the agent can
complete the purchase or sale of real estate. Most
powers of attorney carefully define and enumerate
the scope of the agent’s authority. Thus, most pow-
ers of attorney are limited powers of attorney.
Springing Power of Attorney
Any power of attorney can be written so that it be-
comes effective as soon as the principal signs it. But,
the principal can also specify that the power of attor-
ney goes into effect only upon the occurrence of
some triggering event. In other words, it ‘‘springs’’
into effect at a later date, if ever. The triggering event
ESTATE PLANNING—POWER OF ATTORNEY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 561
can be something as simple as the principal’s reach-
ing a certain age or when a certain calendar date oc-
curs. It can also be much more specific, such as if and
when a doctor certifies that the principal has become
incapacitated. These kinds of springing powers of at-
torney enable individuals to keep control over their
affairs unless and until they become incapacitated,
when it springs into effect. They are also known as
durable powers of attorney.
Durable Power of Attorney
Unless a power of attorney specifically says other-
wise, an agent’s authority ends if the principal be-
comes mentally incapacitated. On the other hand, a
power of attorney may state explicitly that it is to re-
main in effect and not be limited by any future men-
tal incapacity of the principal. A power of attorney
with this sort of clause is called a durable power of
attorney. The word ‘‘durable’’ means that the princi-
pal’s agent can continue to conduct business for the
principal if the principal becomes incapacitated.
Because of their potential utility to individuals
who lack capacity after executing them, durable pow-
ers of attorney are arguably the most important form
of these versatile legal documents. Durable powers
of attorney are intended to address cases wherein
which the following applies:
• The principal intends the agent to have au-
thority only if the principal becomes inca-
pacitated.
• The principal intends for the power of attor-
ney to take effect immediately and to RE-
MAIN in effect regardless of the principal’s
future disability.
The principal must list the specific powers under
the durable power of attorney that are given to the
agent and when those powers are to take effect. The
agent must still act in the principal’s best interest,
making decisions and using the principal’s assets
only for the principal’s benefit. In North Carolina and
South Carolina, a principal must record the power of
attorney with the appropriate county authorities for
it to be durable.
The alternatives to creating a durable power of at-
torney may not be what the principal intends. If the
principal have not executed a durable power of attor-
ney and subsequently the principal becomes mental-
ly incapacitated, a court may appoint a GUARDIAN or
conservator for the principal. A guardianship or con-
servatorship must be established by a PROBATE court.
It is usually easier and much less expensive to man-
age one’s affairs with a power of attorney.
Like all powers of attorney, a durable power of at-
torney ends or ceases to carry authority upon the
death of the principal. It is fruitless to attempt to give
the agent authority to handle matters for the princi-
pal after the principal’s death. Actions such as at-
tempting to pay the principal’s debts, making funeral
or burial arrangements, or transferring the princi-
pal’s property to the people who INHERIT it cannot
be legally accomplished through a power of attorney
executed by a decedent. If the principal wants the
agent to have authority to conclude affairs after the
principal’s death, then prepare a will must be pre-
pared that names the agent as the principal’s execu-
tor.
In addition to the principal’s death, a durable
power of attorney will end if any of the following ap-
plies:
• The principal revokes it. As long as the prin-
cipal is mentally competent, he or she can
revoke a durable power of attorney any time.
• A court invalidates the power of attorney.
This does not happen very often; however,
a court will declare a power of attorney inval-
id if the court finds that the principal lacked
mental competency when the power of at-
torney was executed, or that the principal
was the victim of FRAUD or undue influence.
• The principal gets a DIVORCE. In Alabama,
California, Colorado, Illinois, Indiana, Min-
nesota, Missouri, Pennsylvania, Texas and
Wisconsin, if the principal’s spouse is also
the agent and the two get a divorce, the au-
thority of principal’s former spouse-agent is
automatically terminated by STATUTE. In any
state, however, it is wise to revoke a durable
power of attorney after a divorce and make
a new one.
• No agent is available to serve. A durable
power of attorney will terminate if no one is
available to serve as agent. To avoid this di-
lemma, a principal can name an alternate
agent in the power of attorney.
There are two general types of durable powers of
attorney: a durable power of attorney for finances,
and a durable power of attorney for health care. De-
pending on the terms of the document, the durable
power of attorney for finances allows the agent to
serve the interests of the principal in financial mat-
ters before, during, or after the agent becomes inca-
pacitated. The durable power of attorney for health
ESTATE PLANNING—POWER OF ATTORNEY
562 GALE ENCYCLOPEDIA OF EVERYDAY LAW
care authorizes the agent to make medical decisions
for the principal if the principal cannot otherwise
make those decisions. An agent’s authority over the
principal’s financial and healthcare decisions can be
included in the same power of attorney; however,
some durable powers of attorney for finances do not
give the agent the legal authority to make medical
decisions for the principal. Sometimes financial and
healthcare powers are combined in one document
to create a durable power of attorney.
A durable power of attorney for health care differs
from a LIVING WILL. The durable power of attorney for
health care grants a third party—the agent— the au-
thority to make decisions for the principal about the
principal’s health care. In most states, though, a liv-
ing will (also called a Healthcare Directive or Direc-
tive to Physicians), is a document wherein which the
principal informs his doctors of his preferences
about certain kinds of medical treatment and life-
sustaining procedures in the event the principal can-
not communicate his wishes. The living will does not
mediate the principal’s desires through an agent or
other third party. If a living will is prepared properly,
a physician is legally bound to respect the wishes in
the living will. If for some reason a doctor finds he
cannot honor the living will, he is obligated to trans-
fer the principal’s care to another doctor who will.
Living wills are fairly simple documents, with most
states now providing fill-in-the-blanks living will
forms.
Revoking a Power of Attorney
All powers of attorney automatically expire upon
the principal’s death. Some powers of attorney ex-
pire on a particular date set by the principal. It is im-
portant to know that all powers of attorney are revo-
cable if the right conditions are met. There are many
reasons to revoke a power of attorney, an important
one being loss of confidence in the agent; however,
the principal does not need a reason to revoke the
power of attorney.
Power of attorney can be revoked at any time, as
long as the principal is are of sound mind. To revoke
a power of attorney, the principal must do so in writ-
ing. Typically, the principal merely needs to prepare
a simple statement containing the following:
• The principal’s name and date
• The principal’s claim to be of sound mind
• The principal’s explicit desire to revoke the
durable power of attorney
• The date the original durable power of attor-
ney was executed
• The name of the principal’s agent or agents
• The principal’s signature
It is important to distribute copies of this revoca-
tion statement to the agent and to any institutions
and agencies, such as banks and hospitals, that may
have had notice of the principal’s power of attorney.
If the power of attorney is on file with a county re-
cords department, the statement revoking the power
of attorney should be filed in the same place. After
the durable power of attorney is revoked, the princi-
pal can 1) execute a new power of attorney naming
someone else as agent to handle the principal’s af-
fairs; or 2) handle the affairs independently.
Additional Resources
The financial power of attorney workbook. Irving, Shae,
Nolo Press, 1997.
http://www.eaglelink.com/law-review/poa.htm ‘‘Power of
Attorney’’ EagleLink, 2002.
http://www.itslegal.com/infonet/powerofattorney/poa-
what.asp ‘‘Power of Attorney’’ Itslegal.com/
Broderbund.com, 2002.
http://www.oag.state.ny.us/seniors/pwrat.html, ‘‘Power of
Attorney’’ Office of New York State Attorney General
Eliot Spitzer, 2002.
http://www.uslegalforms.com/ftool/patty.htm, ‘‘Power of
Attorney Forms’’ Uslegalforms.com and Forms-
Tool.com, 2002.
Organizations
The American Academy of Estate Planning
Attorneys
9360 Towne Centre Drive, Suite 300
San Diego, CA 92121 USA
Phone: (800) 846-1555
Fax: (858) 453-1147
E-Mail: information@aaepa.com
URL: http://www.aaepa.com
American College of Trust and Estate
Counsel
3415 South Sepulveda Boulevard, Suite 330
Los Angeles, CA 90034 USA
Phone: (310) 398-1888
Fax: (310) 572-7280
E-Mail: info@actec.org
URL: http://www.actec.org
ESTATE PLANNING—POWER OF ATTORNEY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 563
The National Academy of Elder Law
Attorneys
1604 North Country Club Road
Tucson, Arizona 85716 USA
Phone: (520) 881-4005
Fax: (520) 325-7925
URL: http://www.naela.com
National Network of Estate Planning
Attorneys, Inc.
One Valmont Plaza, Fourth Floor
Omaha, Nebraska 68154-5203 USA
Phone: (800) 638-8681
E-Mail: webmaster@netplanning.com
URL: http://www.netplanning.com
ESTATE PLANNING—POWER OF ATTORNEY
564 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ESTATE PLANNING
PROBATE AND EXECUTORS
Sections within this essay:
• Background
• Personal Representative
- Duties
- Compensation
• Probate Court
- Ancillary Probate
- Will Contests
- Lawsuits
• Creditors
• Avoiding Probate
• Taxes
- Individual Income Taxes
- Estate Income Taxes
• State Law
• Additional Resources
Background
PROBATE is a legal proceeding by which a de-
ceased person’s property is distributed to the right-
ful heirs and/or beneficiaries. Probate proceedings
are governed by the law of the state where the de-
ceased person resided at the time of death and by
the probate laws of any other state where the proper-
ty was owned. The main purpose of probate is trans-
ferring title of the decedent’s property to the heirs
and/or beneficiaries. If the decedent had no assets,
there is typically no need for probate. Probate also
allows for collection of taxes due and payment of
outstanding debts. The term ‘‘probate’’ refers to a
‘‘proving’’ of the existence of a valid Will or deter-
mining and ‘‘proving’’ who one’s legal heirs are if
there is no Will.
All property of a decedent may not be subject to
the probate process. Life insurance, retirement ac-
counts, real estate held as joint tenants with right of
survivorship and other joint TENANCY property can
pass directly to the appropriate BENEFICIARY automat-
ically. The involvement of the court to transfer such
property is not required. Property held in the trust
is not subject to probate. A bank account or motor
vehicle title may also specify a death beneficiary and
thus be exempt from the probate process.
An Executor or Personal Representative (some-
times referred to as ‘‘The PR’’) is the person or insti-
tution named in a will and appointed by a court to
carry out the will’s instructions and to handle all of
the matters of probate. Duties of the Personal Repre-
sentative include making an inventory and APPRAISAL
of all property and appropriately distributing the es-
tate.
Personal Representative
The Personal Representative (also called the ‘‘ex-
ecutor’’ or ‘‘executrix’’ if there is a Will or the ‘‘ad-
ministrator’’ or ‘‘administratix’’ if there is no Will) is
appointed as part of the probate proceeding. The
Personal Representative can either be an entity, one
individual, or two or more individuals (although this
arrangement can become extremely complicated).
Duties
The Personal Representative has the responsibili-
ty for managing the estate in accordance with estab-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 565
lished probate rules and procedures of the
JURISDICTION where the probate takes place. Respon-
sibilities of a Personal Representative include:
Locating, inventorying, and obtaining an appraisal
of the assets of the decedent
Receiving payments owed to the estate, including
unpaid salary, vacation pay, or other benefits due the
decedent
Opening a checking account for the estate
Determining how property is distributed
Noticing potential creditors
Investigating the validity of claims against the es-
tate
Paying bills, debts, valid claims and expenses of
administrating the estate
Discontinuing utilities and credit cards, closing ac-
counts and notifying appropriate private and govern-
mental agencies of the death
Filing and paying income and estate taxes
Closing the probate
Compensation
Personal Representatives are generally compen-
sated about 2% of the probate estate for their work.
This varies moderately from state to state and gener-
ally decreases as a percentage as the size of the estate
increases. All fees and reimbursed expenses are sub-
ject to court approval. Additional fees may be al-
lowed if permitted by the court in certain circum-
stances. However, if a Personal Representative is
incompetent or does not perform as required, the
court may deny compensation, and the Personal
Representative may be held personally responsible
for any damages caused. Liability may arise from im-
properly managing the assets of the estate, failing to
collect claims and moneys due the estate, overpaying
claimants, selling an asset without authority or at an
inappropriate price, neglecting to file tax returns
promptly, or distributing property incorrectly to ben-
eficiaries.
Probate Court
Probate usually occurs in the local court where
the deceased permanently resided at the time of
death. If the deceased did not have a Will, each state
will have its own pattern for distributing the de-
ceased’s real property. Generally it is necessary to go
through probate or, in the case of smaller estates, a
less formal procedure that is still under the general
supervision of the probate court, before the de-
ceased’s property can be legally distributed. If a per-
son dies with a Will (which is known as dying ‘‘tes-
tate’’), a court needs an opportunity to allow others
to object to the Will. A number of objections, might
invalidate a Will, for example, an ALLEGATION that
there is a later Will or that the Will was made at a time
the deceased was mentally incompetent. Additional
challenges to a Will can include FORGERY, improper
EXECUTION (signature), or a claim that the decedent
was subject to undue influence. Dying without a Will
is known as dying INTESTATE; however, such estates
remain subject to the law and rules of the probate
code of the decedent’s domiciled jurisdiction.
The Personal Representative typically must file a
probate petition and notify all those who would have
legally been entitled to receive property from the de-
ceased if the deceased died without a Will, plus all
those named in the Will, and give anyone who
chooses a chance to file a formal objection to the
Will.
A HEARING on the probate petition is typically
scheduled several weeks to months after the matter
is filed. If no objections are filed the court generally
approves the petition and formally appoints the Per-
sonal Representative. While it is not required that
there be representation by an attorney in probate
court, probate is a rather formalistic procedure. The
death of a family member is typically a stressful time
even when the death is expected, such as with a per-
son of quite advanced age or with someone who is
terminally ill. Employing an attorney may be the less
expensive alternative in the long run.
Ancillary Probate
The probate court or division has jurisdiction over
all PERSONAL PROPERTY the deceased owned, plus all
the real property the deceased owned which is locat-
ed in that same state. If the decedent owned out of
state real property, the laws of that jurisdiction will
apply, unless there is a Will. If there is no Will, Pro-
bate is usually required in each state where the real
property is situated, in addition to the home state.
Even if there is a Will, after it is admitted to probate
in the home state, it usually must be submitted to
probate in each other jurisdiction in which the de-
ceased owned real property. A separate probate ac-
tion for such circumstance is known as ANCILLARY
probate. Some states require the appointment of a
ESTATE PLANNING— PROBATE AND EXECUTORS
566 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Personal Representative who is a local resident to ad-
minister the in-state property.
Will Contests
A Will Contest take place where a second, differ-
ent Will of the decedent is produced or in the event
there is an objection to the Will. An individual or enti-
ty must have proper standing to contest a Will. This
means they must have a claim for some type of inter-
est in the estate based on either another Will or a
lawful relationship to the decedent. If the Will is held
invalid, the probate court may invalidate all provi-
sions or only the challenged portion. If the entire
Will is held invalid, generally the proceeds are distrib-
uted under the laws of INTESTACY of the probating
state. The fact that the decedent even attempted to
create a new Will may invalidate the older one, even
if the new Will is found not to be valid. Hiring an at-
torney is usually necessary to determine whether
contesting a Will is even worth the expense.
Lawsuits
In addition to a Will Contest, estates can be in-
volved in other lawsuits. Estates are legal entities,
which can file suit, and be sued. Typically, such suits
involve prior acts of the decedent, which gave rise to
some claim. There are time limits involving such
claims if the estate is to be sued. Potential claimants
would be considered potential creditors.
Creditors
Rules regarding notification of creditors are differ-
ent for each state. However, in every state, creditors
must make a claim for any amounts owed within a
fixed period of time. This claim can be made directly
to the Personal Representative in some jurisdictions,
but in other jurisdictions, it must be made with the
court. The PR can pay the claim out of the estate, but
if the PR disputes its validity, the CREDITOR must seek
a court order to receive payment. If there is not
enough money to pay all the debts of the estate, state
law dictates which creditors are paid first. It is not
possible to ‘‘inherit’’ a debt. Beneficiaries and Per-
sonal Representatives are not personally liable for
the debts of the estate, although the court may order
estate property sold to pay certain creditor claims.
Avoiding Probate
In many estate plans, the Trust is the central tool
that is used to control and manage property. A Trust
continues despite the incapacity or death of the
grantor. It determines how a TRUSTEE is to act with
respect to the Trust estate. It determines how prop-
erty is to be distributed after the death of the grantor.
A properly drawn Trust is a separate entity that does
not die when the creator dies. The successor Trustee
can take over management of the Trust estate and
pay bills and taxes and promptly distribute the Trust
assets to the beneficiaries, without court supervision,
if the Trust agreement gives the Trustee that power.
Trusts, unlike Wills, are generally private documents.
The public would be able to see how much the des-
cendent owned and who the beneficiaries were
under a Will, but typically not with a Trust. Like a
Will, however, a Trust can be used to provide for
minor children, children from a prior marriage, and
a second spouse in the same trust, transfer a family-
operated or closely-held business, provide for pets,
provide for charities, and can remove life insurance
benefits from a taxable estate, while still controlling
the designation of insurance beneficiaries.
Taxes
One of the duties of the PR is to pay all taxes due
the federal government and the state government,
including estate tax, real property tax, and prior to
death INCOME TAX.
Individual Income Tax
In the United States, even death does not relieve
the liability for income tax. Even if the taxpayer is
dead on December 31, an income TAX RETURN has to
be filed for the year of death. As always, the income
tax return is due by April 15th of the following year.
Only the income received and any deductions paid
through the date of death will be reported on the re-
turn. Income such as dividends and interest received
after the date of death will not be reported on the
individual income tax return but on the estate in-
come tax return. Any medical deductions on the de-
cedent’s part paid within one year of the date of
death may be deducted on the final return. All other
deductions must have been paid before death to be
allowable.
Estate Income Tax
Income which comes in after the date of death
should not be reported on the decedent’s personal
income tax return. Interest, dividends, or other in-
come paid to the estate, must be reported on the es-
tate income tax return. A separate tax identification
number is obtained for the estate. This separate tax
return lists the TAXABLE INCOME such as dividends, in-
terest, capital gains, and rents, and allows for deduc-
ESTATE PLANNING— PROBATE AND EXECUTORS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 567
tions such as legal and executor’s fees. If the estate
has been distributed and closed during the tax year,
each beneficiary must list his or her proportionate
share of the taxable income on his or her personal
tax return. If the estate is open, the taxes are paid
from the estate.
State Law
Trusts are often created as an alternative to or in
conjunction with a Will. Trusts are today usually con-
sidered an estate planning tool. The Uniform Probate
Code includes provisions dealing with affairs and es-
tates of the deceased and laws dealing with nontesta-
mentary transfers such as trusts. The theory behind
the Code is that wills and trusts are in close relation-
ship and thus in need of unification. Since its cre-
ation, over thirty percent of states have adopted
most provisions of the Code.
ARIZONA: Without a Will, all property passes to the
surviving spouse unless there are children of the de-
cedent. If there are children only the separate prop-
erty and the one-half of COMMUNITY PROPERTY that be-
longs to the decedent, passes to the surviving
spouse. The remaining goes to the children unless
the children are not also children of the surviving
spouse in which case one-half of the intestate sepa-
rate property and all of the community property that
belonged to the decedent passes to the children.
Creditors have four months to notice the estate re-
garding claims.
CALIFORNIA: In California Probate STATUTORY attor-
neys and Personal Representatives’ fees are usually
calculated based on the gross value of the estate. Cal-
ifornia has a simplified legal process known as a
spousal confirmation proceeding in which, if no one
objects, the court approves the transfer of all assets
to the spouse. This procedure can only be used for
married couples.
FLORIDA: Florida implemented a number of major
changes in its probate code as of January 2002. Flori-
da PUBLIC POLICY protects the spouse and, in some
circumstances, children from total disinheritance.
Absent a PREMARITAL AGREEMENT, a surviving spouse
may have HOMESTEAD rights, elective share rights,
family allowance rights, and exempt property rights.
In addition, certain surviving children of the dece-
dent may also have homestead rights, pretermitted
child rights, family allowance rights, and exempt
property rights.
SOUTH CAROLINA: Without a Will, all assets go to
the surviving spouse unless there are children in
which case one-half goes to the children. Protective
provisions of the South Carolina Probate Code grant
a spouse who is left out of a Will an election to take
a one-third share of the estate. A similar provision
grants a share to a child who is left out of a parent’s
will written before the child’s birth.
SOUTH DAKOTA: South Dakota has adopted the
Uniform Probate Code.
UTAH: Utah has adopted the Uniform Probate Code.
WEST VIRGINIA: Without a Will, all assets go to the
surviving spouse unless there are children in which
case one-half goes to the children. If there is a Will,
the surviving spouse can also renounce the Will and
take the elective share instead. The elective share de-
pends on the length of the marriage. Renouncing the
Will requires that papers be filed with a court within
certain time frames.
Additional Resources
Beyond the Grave: The Right Way and the Wrong Way of
Leaving Money to Your Children (and Others). Con-
don, Gerald, HarperCollins, 2001.
Organizations
The Elder Law Project Legal Services For
Cape Cod And Islands, Inc.
460 West Main Street
Hyannis, MA 02601 USA
Phone: (508) 775-7020
National Academy of Elder Law Attorneys,
Inc.
1604 North Country Club Road
Tucson, Arizona 85716 USA
Phone: (520) 881-4005
Fax: (520) 325-7925
URL: http://www.naela.com/
ESTATE PLANNING— PROBATE AND EXECUTORS
568 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ESTATE PLANNING
TRUSTS
Sections within this essay:
• Background
• Types of Trusts
- Revocable Trust
- Irrevocable Trust
- Asset Protection Trust
- Charitable Trust
- Constructive Trust
- Special Needs Trust
- Spendthrift Trust
- Tax By-Pass Trust
- Totten Trust
• Parties to a Trust
- Trustmaker
- Trustee
- Beneficiaries
• Reasons For Trust Creation
- Asset Control
- Tax Savings
- Asset Protection
- Avoiding a Conservatorship
- Avoiding Probate
• State Law
• Additional Resources
Background
A trust is a legal entity created for the purpose of
holding, managing, and distributing property for the
benefit of one or more persons. A trust can hold
cash, PERSONAL PROPERTY, or real property, or it can
be the BENEFICIARY of life insurance proceeds. In the
most basic sense, a trust is just another form of a con-
tract. Centuries ago, English landowners, in order to
insure the continued wealth of the family, put their
estates in trust to be controlled and managed under
the terms of the trust agreement for an indefinite pe-
riod of time. Once the land was placed in trust, the
landowners controlled but technically no longer
owned the land. As wealth was primarily measured
at that time in history by the amount of land owned,
the trust arrangement allowed the landowners
IMMUNITY from creditors and may have absolved
them of certain feudal obligations. While feudal con-
cerns no longer exist and wealth is held today in
many forms other than land, the concept of placing
property in third party hands for the benefit of an-
other while avoiding creditors has survived. A trust
remains in many circumstance an effective tool to in-
sure that the trust creator’s wishes regarding the
trust assets are complied with for many years, even
during periods of the creator’s mental INCOMPETENCY
or after death.
Types of Trusts
A trust can be created during a person’s lifetime
and survive the person’s death. A trust can also be
created by a Will and formed after death. Once assets
are put into the trust they belong to the trust itself,
not the TRUSTEE, and remain subject to the rules and
instructions of the trust contract. Most basically, a
trust is a right in property, which is held in a
FIDUCIARY relationship by one party for the benefit of
another. The trustee is the one who holds title to the
trust property, and the beneficiary is the person who
receives the benefits of the trust. While there are a
number of different types of trusts, the basic types
are revocable and irrevocable.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 569
Revocable Trusts
Revocable Trusts are created during the lifetime
of the trustmaker and can be altered, changed, modi-
fied or revoked entirely. Often called a LIVING TRUST,
these are Trusts in which the trustmaker transfers
the title of a property to a Trust, serves as the initial
Trustee, and has the ability to remove the property
from the Trust during his or her lifetime. Revocable
Trust are extremely helpful in avoiding PROBATE. If
ownership of assets is transferred to a revocable trust
during the lifetime of the trustmaker so that it is
owned by the trust at the time of the trustmaker’s
death, the assets will not be subject to probate.
Although useful to avoid probate, a revocable
trust is not an asset protection technique as assets
transferred to the trust during the trustmaker’s life-
time will remain available to the trustmaker’s credi-
tors. It does make it more somewhat more difficult
for creditors to access these assets since the
CREDITOR must petition a court for an order to enable
the creditor to get to the assets held in the trust. Typ-
ically, a revocable trust evolves into an irrevocable
trust upon the death of the trustmaker.
Irrevocable Trust
An Irrevocable Trust is one which cannot be al-
tered, changed, modified or revoked after its cre-
ation. Once a property is transferred to an Irrevoca-
ble Trust, no one, including the trustmaker, can take
the property out of the Trust. It is possible to pur-
chase Survivorship Life Insurance, the benefits of
which can be held by an Irrevocable Trust. This type
of survivorship life insurance can be used for estate
tax planning purposes in large estates, however, sur-
vivorship life insurance held in an Irrevocable Trust
can have serious negative consequences.
Asset Protection Trust
An Asset Protection Trust is a type of Trust that is
designed to protect a person’s assets from claims of
future creditors. These types of Trusts are often set
up in countries outside of the United States, al-
though the assets do not always need to be trans-
ferred to the foreign JURISDICTION. The purpose of an
Asset Protection Trust is to insulate assets from credi-
tor attack. These trusts are normally structured so
that they are irrevocable for a term of years and so
that the trustmaker is not a current beneficiary. An
asset protection trust is normally structured so that
the undistributed assets of the trust are returned to
the trustmaker upon termination of the trust provid-
ed there is no current risk of creditor attack, thus
permitting the trustmaker to regain complete con-
trol over the formerly protected assets.
Charitable Trust
Charitable Trusts are trusts which benefit a partic-
ular charity or the public in general. Typically Chari-
table Trusts are established as part of an estate plan
to lower or avoid imposition of estate and gift tax. A
charitable remainder trust (CRT) funded during the
grantor’s lifetime can be a financial planning tool,
providing the trustmaker with valuable lifetime bene-
fits. In addition to the financial benefits, there is the
intangible benefit of rewarding the trustmaker’s al-
truism as charities usually immediately honor the do-
nors who have named the charity as the beneficiary
of a CRT.
Constructive Trust
A Constructive Trust is an implied trust. An Im-
plied Trust is established by a court and is deter-
mined from certain facts and circumstances. The
court may decide that, even though there was never
a formal declaration of a Trust, there was an inten-
tion on the part of the property owner that the prop-
erty be used for a particular purpose or go to a partic-
ular person. While a person may take legal title to
property, equitable considerations sometimes re-
quire that the equitable title of such property really
belongs to someone else.
Special Needs Trust
A Special Needs Trust is one which is set up for
a person who receives government benefits so as not
to disqualify the beneficiary from such government
benefits. This is completely legal and permitted
under the Social Security rules provided that the dis-
abled beneficiary cannot control the amount or the
frequency of trust distributions and cannot revoke
the trust. Ordinarily when a person is receiving gov-
ernment benefits, an INHERITANCE or receipt of a gift
could reduce or eliminate the person’s eligibility for
such benefits. By establishing a Trust, which pro-
vides for luxuries or other benefits which otherwise
could not be obtained by the beneficiary, the benefi-
ciary can obtain the benefits from the Trust without
defeating his or her eligibility for government bene-
fits. Usually, a Special Needs Trust has a provision
which terminates the Trust in the event that it could
be used to make the beneficiary ineligible for govern-
ment benefits.
Special needs has a specific legal definition and is
defined as the requisites for maintaining the comfort
and happiness of a disabled person, when such req-
uisites are not being provided by any public or pri-
vate agency. Special needs can include medical and
dental expenses, equipment, education, treatment,
ESTATE PLANNING—TRUSTS
570 GALE ENCYCLOPEDIA OF EVERYDAY LAW
rehabilitation, eye glasses, transportation (including
vehicle purchase), maintenance, insurance (includ-
ing payment of premiums of insurance on the life of
the beneficiary), essential dietary needs, spending
money, electronic and computer equipment, vaca-
tions, athletic contests, movies, trips, money with
which to purchase gifts, payments for a companion,
and other items to enhance self-esteem. The list is
quite extensive. Parents of a disabled child can estab-
lish a Special Needs Trust as part of their general es-
tate plan and not worry that their child will be pre-
vented from receiving benefits when they are not
there to care for the child. DISABLED PERSONS who ex-
pect an inheritance or other large sum of money may
establish a Special Needs Trust themselves, provided
that another person or entity is named as Trustee.
Spendthrift Trust
A Trust that is established for a beneficiary which
does not allow the beneficiary to sell or pledge away
interests in the Trust. A Spendthrift Trust is protect-
ed from the beneficiaries’ creditors, until such time
as the Trust property is distributed out of the Trust
and given to the beneficiaries.
Tax By-Pass Trust
A Tax By-Pass Trust is a type of Trust that is creat-
ed to allow one spouse to leave money to the other,
while limiting the amount of Federal Estate tax that
would be payable on the death of the second spouse.
While assets can pass to a spouse tax-free, when the
surviving spouse dies, the remaining assets over and
above the exempt limit would be taxable to the chil-
dren of the couple, potentially at a rate of 55%. A Tax
By-Pass Trust avoids this situation and saves the chil-
dren perhaps hundreds of thousands of dollars in
Federal taxes, depending upon the value of the es-
tate.
Totten Trust
A Totten Trust is one that is created during the
lifetime of the grantor by depositing money into an
account at a financial institution in his or her name
as the Trustee for another. This is a type of revocable
Trust in which the gift is not completed until the
grantor’s death or an unequivocal act reflecting the
gift during the grantor’s lifetime. An individual or an
entity can be named as the beneficiary. Upon death,
Totten Trust assets avoid probate. A Totten Trust is
used primarily with accounts and SECURITIES in finan-
cial institutions such as savings accounts, bank ac-
counts, and certificates of deposit. A Totten trust
cannot be used with real property. A Totten Trust
provides a safer method to pass assets on to family
than using joint ownership. To create a Totten Trust,
the title on the account should include identifying
language, such as ‘‘In Trust For’’, ‘‘Payable on Death
To’’, ‘‘As Trustee For’’, or the identifying initials for
each, ‘‘IFF’’, ‘‘POD’’, ‘‘ATF’’. If this language is not in-
cluded, the beneficiary may not be identifiable. A
Totten Trust has been called a ‘‘poor man’s’’ trust be-
cause a written trust document is typically not in-
volved and it often costs the trustmaker nothing to
establish.
Parties to a Trust
There are typically three main parties to a Trust.
The Trust Maker, sometimes called the Grantor or
Maker, is the person who creates the Trust. The
Trustee is the person or entity named to hold the
legal title to the Trust estate. There may be one or
several Trustees. The Beneficiaries are the persons
who the Trust Creator intended to benefit from the
Trust estate. The rights of the beneficiaries depend
on the terms of the Trust. Beneficiaries have the eq-
uitable title to the property held in the Trust. During
the lifetime of the Trustmaker, the Trustmaker,
Trustee and Beneficiary can all be the same individu-
al. This is most often the case in Revocable Trusts.
Trustmaker
The Trust Creator, sometimes called the Grantor
or Trustmaker, is the person who started out as
owner of the property that is to be transferred to and
held by the Trust. The trustmaker makes an agree-
ment with the trustee agreeing to convey his or her
property into the name of the trustee for the benefit
of the beneficiaries.
Trustee
A Trustee is a person or institution selected to fol-
low the instructions provided by the DECLARATION OF
TRUST. A Trustee has a very high ‘‘fiduciary duty’’ to
act with the utmost GOOD FAITH in dealing with the
Trust estate. Many grantors and their respective
spouses act as the initial Trustees of a revocable liv-
ing Trust. In this way they remain in control until
they are incapacitated or die. Then pre-selected suc-
cessor Trustees are appointed in accordance with
the terms of the declaration of Trust. Usually a
spouse, family member or trusted friend are selected
as successor Trustees. Trustees should be knowl-
edgeable about financial matters, be Trustworthy,
know how to manage and invest the Trust estate,
care about the beneficiaries of the Trust, and have
the financial capacity to reimburse the Trust in the
event that they make serious mistakes. If a bank or
ESTATE PLANNING—TRUSTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 571
TRUST COMPANY is selected to serve as a Trustee of a
Trust, it will usually charge a fee for this service,
which is paid from the Trust estate.
Because the beneficiary, trustmaker, and the
trustee can be the same person, the trustmaker and
trustee can agree that the trust creator keep com-
plete control over the trust by retaining the right to
remove and replace the trustee, sell or transfer the
original trust property, DISSOLVE or revoke the trust,
and change the trust beneficiaries.
Beneficiaries
The Beneficiaries are the persons whom the Trust
Creator intended to benefit from the Trust estate.
Beneficiaries are said to have the ‘‘equitable title’’ to
the property held in the Trust. The rights of the ben-
eficiaries depend on the terms of the Trust. The trust
agreement can provide that the beneficiaries have al-
most complete control over the manner in which
trust assets are held and managed, as well as control
over the timing and dollar amounts of distributions.
Or the beneficiaries could be given absolutely no
control. The decision as to how trust powers are ap-
portioned depends on the trustmaker’s objectives,
trust, and confidence in the trustee, and tax conse-
quences.
Once the trustmaker of a revocable trust dies and
the trust becomes irrevocable, an anti-alienation
clause usually protects the assets held in the trust
form being used as COLLATERAL by the beneficiaries.
Thus, creditors cannot force a trustee to make a dis-
tribution to the trust beneficiaries and the assets
held in a trust can remain outside the reach of the
beneficiaries’ creditors.
Reasons for Trust Creation
Asset Control
A trust can be use to maintain control over the
trust assets for a designated period of time which
may survive death.
Tax Savings
Tax and asset protection aspects of trusts depend
on the financial situation of the creator and the type
of trust used. In certain circumstances, a trust can
achieve substantial tax savings yet not achieve asset
protection from creditors of the trustmaker. Every-
one gets a lifetime credit against Federal Estate Taxes
that permits a transfer of up to $675,000 Estate Tax
free. Individuals and married couples with a total es-
tate value less than $675,000 in 2000 (the amount will
gradually increase to the year 2006) do not need a
trust to save on Federal Estate or Gift Tax. For those
who are married, there is an unlimited marital
DEDUCTION. All estate taxes can be avoided upon the
death of the first spouse to die. However, the surviv-
ing spouse would have to remarry and give the entire
estate to the new spouse in order to get another un-
limited marital deduction. Many people would rather
their own children benefit from their estate, rather
than having a surviving spouse pass it on to a new
spouse. A trust can accomplish this. The trustmaker
can establish a tax by-pass Trust to hold property for
children, while still allowing the trust funds to pro-
vide for the surviving spouse. This arrangement en-
ables the trustmaker to place up to $675,000 in a
Trust for the benefit of the surviving spouse and chil-
dren which will not be subject to estate tax upon the
death of the surviving spouse. Coupled with the sur-
viving spouse’s estate and gift tax credit, the children
could then INHERIT up to $1,350,000 free from Feder-
al Estate and Gift Tax. At current Federal Estate Tax
rates, this could amount to a significant savings of
hundreds of thousands of dollars.
Asset Protection
Assets may be put in trust because the trust cre-
ator has confidence in the prospective trustee’s
knowledge, experience, or ability to properly man-
age the type of assets to be transferred into the
trusts. The utilization of a trustee in such circum-
stances may have the additional advantage of reliev-
ing the beneficiaries of what may otherwise be a bur-
den.
Avoiding a Conservatorship
If property is held in a Trust, a successor Trustee
can step in and take over management, without the
delay and expense of going to court to appoint a con-
servator to manage the property, if the Trust Creator
becomes disabled. This may be particularly impor-
tant if the trustmaker is self-employed or owns a por-
tion of a business or partnership.
Avoiding Probate
In many estate plans, the Trust is the central tool
that is used to control and manage property. A Trust
continues despite the incapacity or death of the
grantor. It determines how a Trustee is to act with
respect to the Trust estate. It determines how prop-
erty is to be distributed after the death of the grantor.
A properly drawn Trust is a separate entity that does
not die when the creator dies. The successor Trustee
can take over management of the Trust estate and
pay bills and taxes, and promptly distribute the Trust
ESTATE PLANNING—TRUSTS
572 GALE ENCYCLOPEDIA OF EVERYDAY LAW
assets to the beneficiaries, without court supervision,
if the Trust agreement gives the Trustee that power.
Trusts, unlike Wills, are generally private documents.
The public would be able to see how much the des-
cendent owned and who the beneficiaries were
under a Will, but typically not with a Trust. Like a
Will, however, a Trust can be used to provide for
minor children, children from a prior marriage and
a second spouse in the same trust, transfer a family-
operated or closely-held business, provide for pets,
provide for charities and can remove life insurance
benefits from a taxable estate, while still controlling
the designation of insurance beneficiaries.
State Law
Trusts are often created as an alternative to or in
conjunction with a Will. Trusts are today usually con-
sidered an estate planning tool. The Uniform Probate
Code includes provisions dealing with affairs and es-
tates of the deceased and laws dealing with nontesta-
mentary transfers such as trusts. The theory behind
the Code is that wills and trusts are in close relation-
ship and thus in need of unification. Since its cre-
ation, over thirty percent of states have adopted
most provision of the Code.
Additional Resources
Beyond the Grave: The Right Way and the Wrong Way of
Leaving Money to Your Children (and Others). Con-
don, Gerald, HarperCollins, 2001.
Make Your Kid a Millionaire: Eleven Easy Ways Anyone
Can Secure a Child’s Financial Future. McKinley,
Kevin, Simon & Schuster, 2002.
Organizations
The Elder Law Project Legal Services For
Cape Cod And Islands, Inc.
460 West Main Street
Hyannis, MA 02601
Phone: (508) 775-7020
National Academy of Elder Law Attorneys,
Inc.
1604 North Country Club Road
Tucson, AZ 85716
Phone: (520) 881-4005
Fax: (520) 325-7925
URL: http://www.naela.com
ESTATE PLANNING—TRUSTS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 573
This Page Intentionally Left Blank
ESTATE PLANNING
WILLS
Sections Within This Essay:
• Background
• What is in a Typical Will?
• The Personal Representative
• Changing a Will
• Competency
• Contesting or Challenging a Will
• Disinheriting
• Divorce
• Dying Without a Will
• Guardians
• Life Insurance
• Lost Wills
• Moving From State to State
• Revoking a Will
• Probate
• Taxes
• Types of Wills
- Do-It-Yourself Wills
- Oral Wills
- Death-Bed Wills
- Holographic Wills
- Self-Probating Wills
- Living Wills
• Additional Resources
Background
A will, sometimes known as a ‘‘last will and testa-
ment,’’ is a legal document that provides written in-
structions for the distribution of a decedent’s (dead
person’s) property. Generally, people should consid-
er making a will if they care how their property will
be distributed when they die, they want to name the
person who will handle financial and legal matters
they may leave behind, or they want to name a
GUARDIAN for their minor children.
What is in a Typical Will?
A will most likely will include the following provi-
sions:
• Your name (the TESTATOR)
• The name of your spouse and the date of
your marriage, if any
• The name of your children (and how you
wish any foster and stepchildren to be treat-
ed), if any
• A statement revoking any wills you may have
previously made
• Your nomination of a personal representa-
tive to administer the estate and usually at
least one alternate.
• A list of powers that you want your personal
representative to have (these are often enu-
merated in your state’s statutes
• A list of any special gifts
• Instructions for distributing the remainder
of your estate after your debts, taxes, and ex-
GALE ENCYCLOPEDIA OF EVERYDAY LAW 575
penses incurred in administering your estate
have been paid
• A WAIVER of any surety bond requirements
Your will may not cover everything that you con-
sider ‘‘your property.’’ The following types of prop-
erty are examples of assets that may pass directly to
a BENEFICIARY you have named in a separate docu-
ment:
• PENSION plan assets
• 401(k) plan assets
• life insurance
• annuities
• property held through a ‘‘trust’’
These assets would usually pass to beneficiaries
you have previously named in documents under the
supervision of the manager of the pension plan, the
company sponsoring the 401(k), life insurance com-
panies, annuities, and in a trust instrument. Howev-
er, if you name ‘‘my estate’’ the beneficiary of any of
these kinds of assets, then your will would control
who receives the property and benefits. Be aware
that by doing this your eventual beneficiaries may ex-
perience some significant delays and/or some impor-
tant tax disadvantages.
Your will should be prepared and properly exe-
cuted (signed by you and a certain number of com-
petent witnesses) while you still have legal capacity.
Thus, if you want a will, you should have one pre-
pared and sign it according to the applicable state
law while you have full control over your mental
functions. If you wait until you suffer an accident or
an illness, it could be too late.
The Personal Representative
When you die, your personal representative (also
known as an administrator or executor) will gather
and inventory all of your property at the time of your
death. Most states require the personal representa-
tive to post a surety bond covering his/her actions,
although you can explicitly waive this requirement in
your will. The personal representative will also deter-
mine your outstanding debts, pay your legitimate
debts, and distribute the remaining property accord-
ing to the instructions in your will. Your personal
representative will be appointed in a PROBATE pro-
ceeding. The personal representative must usher
your property through the probate process, subject
to your state’s probate rules and procedures. In
many states, the court maintains tight control over
the activities of the personal representative. For ex-
ample, the personal representative must obtain the
court’s permission to sell, distribute, or otherwise
take action with respect to property in your estate.
It is important to choose someone who you think
will be competent and trustworthy to serve as your
personal representative. The personal representative
will have access to all of your property and the au-
thority to conduct certain business on your behalf.
To the extent that you can, it is a good idea to choose
a person with some business experience, intelli-
gence, and high integrity. Your will should name the
person you wish to nominate as your personal repre-
sentative. You will probably also name one or more
alternates to serve in the event that your first choice
for personal representative is unwilling or unable to
serve. Because you cannot speak in your own behalf,
your will acts as your voice to inform the probate
court about who you think will be best suited to this
job.
Changing a Will
The most common reasons to change your will
after it has been executed include the following:
• You get married or divorced
• Your family increases through the birth or
ADOPTION of child
• There is a death of a family member or of a
beneficiary
• There are changes in the Federal Estate Tax
laws or State Tax laws that may effect your
estate
• There is a substantial change in the value of
your estate
• You change the nature of your property
holdings, which impacts your distribution
plans
• A potential guardian, executor, or TRUSTEE
moves away, dies, or refuses to serve in that
capacity
• Your children reach the AGE OF MAJORITY, or
are old enough to manage financial matters
on their own
• You move to a different state
• You need or want to eliminate gifts to cer-
tain people
ESTATE PLANNING—WILLS
576 GALE ENCYCLOPEDIA OF EVERYDAY LAW
To change your will, there are two basic choices,
and professional assistance is in order for both. First,
you can prepare and properly execute an entire new
will that revokes the previous will. Second, you can
prepare and properly execute a CODICIL to the will.
A codicil is a separate document that adds to and/or
replaces one or more provisions in an existing will.
What makes the most sense for you will depend on
the facts and circumstances. For example, if there is
a new tax provision that favors provisions in existing
wills, but not new wills, or there may be a question
subsequently raised about your mental competence.
In these cases, a codicil would generally be the best
choice.
Codicils were used frequently in the past, but law-
yers now use computer technologies that can quickly
integrate any changes you want to make—even
minor ones—into an entirely new will that is up to
date. Because of the ease of making the changes, the
fees charged to make these modifications are usually
modest. Your lawyer may even suggest revisions to
your will that take account of new laws, tax rules, and
changes in your circumstances that you may have
overlooked in your previous will. Regardless of the
ease of making these changes, never try to make
changes in your will on your own. If you write in the
margins, add material, cross out words, lines, or sec-
tions of the original will you could possibly create
some confusion or ambiguity and thereby invite un-
pleasant and protracted will contests.
Competency
Someone trying to have your will accepted for
probate generally must establish that you were of
sound mind and memory at the time you executed
your will. Even if one becomes old, frail, and forget-
ful, it is difficult to get a court to regard a will as inval-
id. Generally, those who witnessed the will being
signed will almost always say that the deceased was
of sound mind, was aware of his surroundings, the
day or date, who his family members were, and knew
that he was signing a will. The burden then shifts to
the person challenging the will to prove it should not
be accepted for probate.
Courts maintain a strong presumption that a will
is valid. Thus, it can be costly and difficult to prove
that someone was mentally incompetent, made a
mistake, or was subject to FRAUD, COERCION, DURESS,
or undue influence when making and/or executing
the will. Even if the testator suffers weakened men-
tality after the will was made has no bearing. The va-
lidity of the will is only called into question should
an incompetent testator want to change the will at
a later date.
Contesting or Challenging a Will
Will contests challenge the admissibility of wills in
probate courts. It is a kind of LITIGATION that ques-
tions whether a will should be properly admitted by
the court as EVIDENCE of a decedent’s wishes regard-
ing the distribution of his estate, appointment of
guardians for minor children, or other issues dealing
with the decedent’s estate. One may not contest the
validity of a will merely because that person does not
like the will’s provisions. A will’s validity is not deter-
mined by one’s sense of ‘‘fairness’’ of the will’s con-
tents. Nor is a will’s validity determined by how rea-
sonable the will’s provisions appear nor on the
timing of disbursements.
Despite the feelings of a decedent’s family or
friends, a will is most likely to be challenged by some-
one claiming one of the following:
• The will was not properly written, signed or
witnessed, or did not meet the state’s formal
requirements
• The decedent lacked mental capacity at the
time the will was executed
• The decedent was a victim of fraud, force, or
undue influence
• The will is a forgery
If a will contest is successful, the entire document
may be thrown out. Alternatively, the probate court
may reject only the part of the will that was chal-
lenged. If the entire will is disallowed, the court will
distribute the decedent’s property as if the person
died without a will. If possible, the court may use a
previous will, but such action will depend on state
law and the facts and circumstances of the case.
If someone files an objection to your will or pro-
duces another will, a ‘‘will contest’’ has begun. Will
contests are not uncommon, but few people actually
win one. They can be very expensive and create
lengthy delays in the distribution of an estate’s as-
sets. Not just anyone can contest a will. A person
must have legal ‘‘standing’’ to object to a will. What
constitutes standing is determined by state law, but
generally it means someone who either is a party
mentioned in a will or perhaps should have been a
party to the will based on a legal relationship to the
ESTATE PLANNING—WILLS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 577
decedent. For example, if a decedent revises his will
and the later will is less favorable to someone than
an earlier will, that person has standing. Someone
may initiate a will contest to have a different person,
bank, or TRUST COMPANY serve as the personal repre-
sentative for an estate or serve as a trustee of trusts
created by the will. Some of the most common chal-
lenges to wills come from potential heirs or benefi-
ciaries who received less than they had anticipated.
Disinheriting
Can you disinherit your child? The answer is gen-
erally yes. To do so, you must explicitly state that you
intend to disinherit that child in your will. If your
child is a minor, the state laws typically provide some
sort of allowance out of the assets of your estate to
support your child until he or she reaches the age of
majority.
Can you disinherit your spouse? The answer is
generally no. But if you and your spouse waived the
right to be included in each other’s estate in a pren-
uptial or postnuptial agreement, you may then en-
tirely omit your spouse from taking anything under
your will. In the absence of such an agreement, you
can limit the amount your spouse will receive to a
statutorily defined minimum. All states have laws that
shield a surviving spouse from being completely cut
off.
Typically, your surviving spouse could choose be-
tween the property you left to him or her in your will
or a STATUTORY share set by state law. Depending on
the state law where you reside, this spousal share is
usually one-third or one-half of your estate. The rules
for calculating the amount of the share differ remark-
ably from state to state. Additionally, in COMMUNITY
PROPERTY states, the surviving spouse already owns
half of the community property at the death of the
other spouse.
The threat of will contest and the expense and
delay they occasion prompts competent lawyers to
encourage their clients to avoid completely cutting
someone out. Instead, it may be advisable to leave
the person a relatively small amount and put in an
‘‘in terrorum’’ clause. These clauses state that if the
person contests the will, he will FORFEIT that small
amount. The consequences of will contests are an-
other important reason most people should avoid a
do-it-yourself will. Lawyers are trained and experi-
enced to prepare wills and will make sure the word-
ing and EXECUTION is done according to the law. If it
seems possible that someone may later claim that
the testator lacked competence, the lawyer can pro-
duce qualified medical and other witnesses at the ex-
ecution ceremony to ameliorate those claims.
Divorce
The effect of a DIVORCE on the legality or sufficien-
cy of a will depends on your state’s law. In some
states, a divorce DECREE will automatically revoke
your entire will. In other states, a divorce will only re-
voke the provisions that would distribute assets to
your former spouse, not the will itself. In either case,
should you experience a divorce, you should review
the property arrangements in your will. This is also
true of other important documents, such as life in-
surance policies and bank accounts. This is such a
fundamental principle that divorce courts frequently
require litigants to address these issues as part of di-
vorce decrees.
Dying Without a Will
If you die without having made a will (also known
as dying ‘‘intestate’’), the probate court will appoint
a personal representative for your estate. This repre-
sentative is frequently known as an ‘‘administrator.’’
The administrator will receive creditors’ claims
against your estate, pay debts, and distribute your re-
maining property according to the laws of your state.
There are many differences between dying TESTATE
and dying INTESTATE. The main difference, however,
is that an intestate estate is distributed to beneficia-
ries according to the distribution plan established by
state law; a testate estate is distributed according to
the decedent’s instructions provided in the dece-
dent’s will. For more detailed information about
INTESTACY, see the heading ‘‘Intestacy’’ in the Gale
Encyclopedia of Everyday Law.
Guardians
A major impetus for making a will is to provide for
the care of minor children. If you have a minor child
or children you may want to choose a guardian to
serve in your place should you die before your chil-
dren reach the age of majority. There are two basic
types of legal guardians: a guardian of the person and
a guardian of the estate of minor children, but these
functions can be performed by one person. The
guardian of the person is responsible for decisions
about the health, education, and welfare of the
ESTATE PLANNING—WILLS
578 GALE ENCYCLOPEDIA OF EVERYDAY LAW
minor child. The guardian of the estate is responsible
for the child’s property and for managing finances
for the minor child.
When one natural parent dies, generally the other
natural parent is appointed as the guardian for minor
children, whether or not the parents were married
at the time. If someone besides a surviving natural
parent of a minor child is named as guardian in a will,
the surviving natural parent can contest that nomina-
tion. The court will then determine whether the ap-
pointment of the other parent as the guardian would
be detrimental to the best interests of the minor
child. Courts strongly prefer that children be placed
in the guardianship of their natural parents whenev-
er possible. It is very difficult from a legal standpoint
to overcome this presumption. However, if both nat-
ural parents are deceased, it is important to name a
guardian for minor children, to ensure the children
(and their financial assets) will be cared for by some-
one the parents trust.
Life Insurance
It is not a good idea to name a beneficiary for your
insurance in your will. This adds an unnecessary level
of administration and expense as insurance proceeds
become caught up in the probate process. Because
life insurance proceeds generally pass to your benefi-
ciaries free of the claims of your creditors, passing in-
surance proceeds through your will may unnecessar-
ily subject your life insurance proceeds to your
estate’s debts. Currently, you may contact your insur-
ance company to ask for a beneficiary form on which
you name your life insurance beneficiaries. If your
life insurance is part of your employer’s benefit plan,
your employer may provide you with insurance ben-
eficiary forms. With the forms from your insurance
company or employer, you may name the beneficia-
ries of your choice and file the new beneficiary desig-
nation with the insurance company or with your em-
ployer. Do not forget to ask for written confirmation
that the form was received and properly filed. In the
event of your death, the insurance company would
pay the insurance proceeds directly to the beneficia-
ries you have named without having your beneficia-
ries going through the delay, expense, and trouble
of probate.
Lost Wills
Sometimes, a family knows that a deceased rela-
tive made a will, but the will cannot be found. Miss-
ing wills raise many legal issues. The outcomes of
these situations depend on the specific facts and cir-
cumstances, as well as on the law of the state in
which the deceased resided. If the will is missing be-
cause the deceased attempted to revoke it, depend-
ing on state law, an earlier will or the state’s rules on
interstate SUCCESSION would determine how to dis-
tribute the deceased’s estate. If the will is missing be-
cause it was destroyed in an explosion or fire, the
probate court may accept a photocopy of the will.
The court may also accept the deceased lawyer’s
draft or computer file. In either of these cases, the
court will require evidence that the deceased execut-
ed the original will according to state law.
Moving from State to State
The laws of all states differ with respect to wills.
If you move to a different state after you make and
execute your will, it may be a good idea to have your
will reviewed by a lawyer in your new state. Basically,
a will properly drafted and executed in your former
state—and that would be valid in your former state—
will typically be regarded as valid under the law of
your new state.
Do not forget that the laws in your new state may
be more favorable than the laws of your previous
state. For example, your new state may have different
processes to ‘‘prove’’ the will. Or your new state may
permit some probate matters to be handled on a less
formal and less expensive basis. Sometimes this can
be accomplished simply by adding language that re-
fers to certain statutory provisions in your new
state’s laws.
Sometimes complications will occur because dif-
ferent states maintain different statutory classifica-
tions of property. The differences between states
without community property schemes and those
that have them can create important complications.
If your will was executed in a state that does not have
a community property scheme and you subsequently
move to a community property state (or vice versa),
you may want to confer with a lawyer in your new
state to determine whether to create a new will to
achieve your intended result.
Revoking a Will
As mentioned above, a change in your marital sta-
tus may revoke all of your will, or it may revoke the
part of your will relating to your former spouse. If
ESTATE PLANNING—WILLS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 579
you are mentally competent at the time you do it,
you can revoke your will by burning it, tearing it up,
or otherwise destroying it. Be aware that revoking
your will must be properly witnessed and recorded.
If not, someone may later claim that your will was
simply ‘‘lost’’ and not revoked. Thus, copies of the
will you thought you had revoked can be produced
and duly probated. Alternatively, someone may claim
that you lacked mental competence at the time you
‘‘attempted’’ to revoke your will.
Probate
Probate is the process by which legal title of your
property will be transferred from your estate to your
beneficiaries. If you die with a will (‘‘testate’’), the
probate court determines if your will is valid, hear
any objections to your will, orders that your creditors
be paid, and supervises the process to assure that
property remaining is distributed in accordance with
the terms and conditions of your will. The cost of
probating your estate is determined either by state
law or by practice and custom in your community.
The usual cost to probate an estate varies between
3% and 7% of the value of the estate.
Taxes
As part of his or her duties, your personal repre-
sentative will file tax returns for your estate to report
the assets of your estate. The personal representative
will also file an estate income TAX RETURN to report
any income generated by your estate. Federal estate
taxes are the highest in the federal tax code. Current-
ly, estate tax is levied on decedents’ estates when the
estate is valued over $675,000. This exclusion
amount will rise in annual increments to $3.5 million
in 2009. Federal estate tax rates range between 37%
and 50% in 2002. Prior to 2002, the federal estate tax
rate was 55%. This tax rate will drop 1% each year
until it reaches 45%. The Federal Estate Tax begins
in § 2001 of the Internal Revenue Code. (26 U.S.C.
2001). Merely making and executing a will does not
reduce federal estate tax. However, through compe-
tent legal advice on estate planning, including the
careful crafting of your will, you can minimize or
avoid these taxes. Such tax benefits would not be
available to you and your family if you died without
a will.
Types of Wills
Do-It-Yourself Wills
So-called do-it-yourself are wills that individuals
create themselves, usually with the aid of self-help
legal literature. There are numerous guides, form
books, websites, and fill-in-the-blank literature in the
marketplace geared for non-lawyers. This material
purports to help you create a valid will and avoid the
costs of hiring an attorney to prepare a will for you.
While this may be true in some cases, there is much
to be cautious about. Mainly, the consequences of
preparing a do-it-yourself will can be potentially dev-
astating. If you die and your will is declared to be in-
valid, you will not be around to explain what you had
intended to accomplish in your will. Instead, a pro-
bate court will either interpret your will or distribute
your property according to the state intestacy
scheme. Keep in mind that your will is an important
legal document. If it is not prepared and executed ac-
cording to state law, your entire will can be set aside
by a probate court. Additionally, just about anyone
who envisions an alternative distribution of your es-
tate can contest a do-it-yourself will. If it does not
meet some very stringent tests mandated by state
law, the court can disregard your do-it-yourself will.
Oral Wills
Oral wills are those whose contents and terms are
merely spoken to a witness or witnesses, but not
written down. There is great potential for fraud or
even simple misunderstanding in oral wills. In most
cases an ‘‘oral will’’ is only recognized by a probate
court when made by members of the armed services
or merchant marine in active service in time of con-
flict. Oral wills are not uncommon in situations in
which a person feels he or she does not have time
to prepare a written will and have it properly execut-
ed.
Death-Bed Wills
Deathbed wills are those created and executed
when the testator is facing imminent death. These
wills may be perfectly valid and binding, but the
closer to the testator’s death the will is prepared the
more likely it is to be challenged. The contest is usu-
ally based on a premise that the testator lacked suffi-
cient mental capacity or was subject to undue influ-
ence. As previously stated, challenges can lead to
costly and protracted will contests.
A deathbed will can potentially lead to errors. Its
hasty preparation can be such that the will may not
distribute the property in the manner that the testa-
tor intended. Hasty preparation can also fail to take
ESTATE PLANNING—WILLS
580 GALE ENCYCLOPEDIA OF EVERYDAY LAW
advantage of some features that can reduce or elimi-
nate the Federal Estate Tax. It is also more likely that
the will would be found invalid because it does not
conform to some legal requirement. These are some
of the reasons many lawyers urge their clients or po-
tential clients to create and execute their wills while
they are still of sound mind and body.
Holographic Wills
A holographic will is one that you have written
yourself. They are generally handwritten, although
some states may allow for a holographic will to be
created on a typewriter or with word processing soft-
ware. These kinds of wills are not allowed in some
states, but other states permit this kind of informal
will. In states that permit them, the laws relating to
holographic wills can be very specific or restrictive.
For example, California requires that you write all
material provisions entirely by hand and that you
must sign your holographic will. On occasion, a holo-
graphic will is better than no will at all. In cases
where the holographic will creates an ambiguity or
an unintended result, it may have been better to
have no will at all.
Self-Probating Wills
You can help simplify the probate process by ad-
ding to your will the affidavits (sworn statements) of
the witnesses who saw you signing your will. When
these affidavits are included with a will, it is some-
times called a ‘‘self-probating will.’’ In the affidavits,
the witnesses state that they saw you execute or sign
the will, that you asked them to be witnesses to the
will, that you appeared mentally competent at the
time, and you acted voluntarily. Without these affida-
vits, the process is more complicated and lengthy. In
those cases, the executor would usually need to con-
tact the original witnesses and have them appear in
probate court (if they can). Before the personal rep-
resentative or executor can even file your will in pro-
bate court, the witnesses would usually appear in
court (or sometimes provide an AFFIDAVIT) to state
the circumstances surrounding the execution of the
will. This TESTIMONY helps to ‘‘prove’’ that the will is
genuine.
Probate courts usually permit your will to be filed
along with the affidavits, without the need to sum-
mon witnesses or obtain new affidavits. The court
then gives notice to other heirs at law who are given
a specific amount of time to file any objections to the
will being admitted to probate. If any of these choose
to challenge your will, the probate court is more like-
ly to require your witnesses to come into court (if
they are still available) to TESTIFY about the circum-
stances in which your will was signed. In some states,
self-authenticating affidavits are not accepted in situ-
ations where the testator dies shortly after the will is
signed, or the will was not executed with the assis-
tance of a licensed attorney.
Living Wills
A LIVING WILL is something of a misnomer. It does
not direct how your property is to be disposed of
after you die. Rather, it is a document that specifies
the general kinds of medical care you would want—
or not want—in the event you became unable to
communicate with your health care providers. Living
wills are sometimes known as ‘‘medical directives’’
or ‘‘medical declarations.’’
Additional Resources
The American Bar Association Guide to Wills & Estates:
Everything You Need to Know About Wills, Trusts, Es-
tates, and Taxes. American Bar Association, Times
Books, 1995.
The Estate Planning Sourcebook. Berry, Dawn Bradley,
Lowell House, 1999.
Family Money: Using Wills, Trusts, Life Insurance and
Other Financial Planning tools to Leave the Things
You Own to People You Love. Silver Lake Editors, Silver
Lake Publishing, 2001.
http://www.estateplanninglinks.com/ep.html#
highlighted. ‘‘Estate Planning Resources.’’ EstatePlan-
ningLinks.com, 2001.
http://www.findlaw.com/01topics/31probate/index.html.
‘‘Wills, Trusts, Estates and Probate.’’ FindLaw, 2002.
http://law.freeadvice.com/estate_planning/wills/. ‘‘Wills.’’
FreeAdvice.Com, 2002.
http://www.lawyers.com/lawyers-com/content/aboutlaw/
taxation_3.ht ml. ‘‘Inheritance and Estate Tax.’’ law-
yers.com, 2001.
http://www.mtpalermo.com. ‘‘Crash Course in Wills and
Trusts.’’ Palermo, Michael T., Attorney at Law, 2002.
http://www.nolo.com/lawcenter/index.cfm/catID/
FD1795A9-8049-422 C-9087838F86A2BC2B. ‘‘Wills and
Estate Planning.’’ Nolo.Com, 2002.
Restatement of the Law, Property-Wills and Other Dona-
tive Tranfers, 3d Edition. American Law Institute, West
Publishing, 1999.
The Wills and Estate Planning Guide: A State and Territo-
rial Summary of Will and Intestacy Statutes. American
Bar Association, The Association, 1995.
Wills and Trusts in a Nutshell. Mennell, Robert L., West
Publishing, 1994.
ESTATE PLANNING—WILLS
GALE ENCYCLOPEDIA OF EVERYDAY LAW 581
Organizations
The American Academy of Estate Planning
Attorneys
9360 Towne Centre Drive, Suite 300
San Diego, CA 92121 USA
Phone: (800) 846-1555
Fax: (858) 453-1147
E-Mail: infor mation@aaepa.com
URL: http://www.aaepa.com
American College of Trust and Estate
Counsel
3415 South Sepulveda Blvd., Suite 330
Los Angeles, CA 90034 USA
Phone: (310) 398-1888
Fax: (310) 572-7280
E-Mail: info @actec.org
URL: http://www.actec.org
The National Academy of Elder Law
Attorneys
1604 North Country Club Road
Tucson, AZ 85716 USA
Phone: (520) 881-4005
Fax: (520) 325-7925
URL: http://www.naela.com
National Network of Estate Planning
Attorneys, Inc.
One Valmont Plaza, Fourth Floor
Omaha, NE 68154-5203 USA
Phone: (800) 638-8681
E-Mail: webmaster@netplanning.com
URL: http://www.netplanning.com/
ESTATE PLANNING—WILLS
582 GALE ENCYCLOPEDIA OF EVERYDAY LAW
FAMILY LAW
ADOPTION
Sections within this essay:
• Background
• Types of Adoption
- Domestic Adoption
- Multiethnic Adoptions
- International Adoptions
• The Adoption Process
• Obstacles to the Adoption Process
- Putative Fathers
- Multiethnic Issues
- Open Adoption
- Searching for Birth Parents
• Getting Information
• Additional Resources
Background
The decision to adopt a child can be one of the
most rewarding that an individual or couple can
make. As with any rewarding decision, it can be ex-
traordinarily complex. Those who wish to adopt a
child must be willing not merely to welcome a new
life into their hearts; they must also be willing to deal
with legal and bureaucratic issues that can easily take
as long as a typical pregnancy. The key to adopting
successfully is to do one’s homework: finding repu-
table attorneys and agencies, knowing the pros and
cons of different types of adoptions, and understand-
ing the need to be actively involved at every step
without allowing impatience or frustration to take
control.
People adopt for a variety of reasons. Many adop-
tive parents cannot have children. Others want to
provide a loving environment for children in need of
a home; many parents who adopt have already given
birth to children. Some people choose to adopt
‘‘special needs’’ children (children with disabilities,
for example). The reasons for ADOPTION notwith-
standing, the most important requirement for adop-
tive parents is that they accept adoption as being as
irreversible as the birth process.
Beginning in the last decades of the twentieth
century, overseas adoptions became increasingly
common. More prospective parents turned to Rus-
sia, China, and South and Central America for adop-
tion. This trend was spurred on by several factors,
the two most important being easier availability and
less fear of legal challenges. Domestic adoptions are
not subject to widespread legal challenges, but it is
not impossible for birth parents or birth relatives to
initiate proceedings to revoke an adoption. For these
reasons, it is critically important to work with people
who are experienced in the adoption process and
who understand what makes for a successful adop-
tion.
Types of Adoption
When people talk about adoption they usually
mean ‘‘unrelated adoption,’’ the adoption of a child
who has no blood or marriage ties to the adoptive
parent. Often a grandparent or aunt or uncle will
adopt a child whose parents have died or who can-
not serve in their role as parents. Step-parents often
adopt their step-children as a means of creating a
stronger emotional and legal bond within the family.
These adoptions are generally much easier and less
complicated than a typical unrelated adoption.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 583
When individuals or couples choose to adopt,
they have several options.
Domestic Adoptions
People who wish to adopt a child who is as close
to them culturally and physically as possible will
often opt for domestic adoptions. A white couple
may want to adopt a white baby, a black couple a
black baby, and so on. Because there are more mi-
nority children available for adoption, prospective
parents almost always have a longer wait if they wish
to adopt a white child.
Multiethnic Adoptions
Often a prospective parent is unconcerned about
the race or ethnicity of the child. Or the parent may
actively seek a child of a different race or ethnic
group. Multiethnic adoptions (also called transethnic
or transracial adoptions) are generally easier when
the parents seek a minority child, again, because
there are more minority children available for adop-
tion.
International Adoptions
Because there are many more children overseas
who are waiting to be adopted (in particular, many
more who are under one year old), it is often easier
for parents to adopt from another country. This ac-
tion involves extra steps, of course, including dealing
with both the U. S. government and the adoptee’s
government as well. A number of adoption agencies
specialize in overseas adoptions.
The costs associated with adoption depend on
the type of adoption and the age of the child, among
other factors. An agency or other intermediary
should be able to give you a detailed breakdown of
how much you should expect to pay for the adop-
tion. Agencies are also be able to provide informa-
tion on sources for funding and possible tax breaks
for adoptive parents.
The Adoption Process
Adoption is a complex process, but it follows a
fairly predictable sequence of events. The first step
for those who are serious about adopting is to con-
tact someone who can provide assistance. Some peo-
ple try to handle the adoption process themselves.
Because the laws are so complex, doing so is illegal
in a number of jurisdictions, and the sheer volume
of regulations is often more than the average un-
trained person can handle.
Most people turn to adoption agencies when they
decide to adopt a child. Agencies can be public or
state-licenced private groups. Some agencies special-
ize in specific types of adoption, as mentioned
above. Agencies place children whose birth parents
have voluntarily surrendered their rights to their off-
spring or whose birth parents have had their parental
rights terminated. Because agencies have consider-
able experience with adoptions, they can often make
the process run more smoothly. A number of people,
however, turn to ‘‘private placement,’’ in which the
biological parent or parents place the child directly
with the adoptive parents. Often this action involves
a third party (typically a lawyer, doctor, or a member
of the clergy) who brings the biological and adoptive
parents together and who then acts as an intermedi-
ary. Private placement is illegal in Connecticut, Dela-
ware, and Massachusetts, and it is strictly regulated
in several other states.
The next step after choosing a third party in the
adoption is to arrange for a ‘‘home study.’’ This is an
evaluation of the prospective parent’s fitness to raise
a child. Not surprisingly, the process is detailed. A
prospective parent is interviewed, often by several
people. The parent’s home is visited, and letters of
reference and recommendation are asked for. The
prospective parent needs to provide information
about his or her physical and emotional health, finan-
cial status, employment history, marital history, and
so on. The process is by necessity extremely thor-
ough.
If the child has not yet been born, the prospective
parent or the intermediary (whether an agency or an
individual) selects a pregnant woman who has decid-
ed to give up her baby for adoption. If the child has
been born, the prospective parent is offered a
chance to meet him or her (for domestic adoptions).
Obviously, a prospective parent may not be able to
meet a child from overseas right away, but pictures
and often videotapes of the child are made available.
Some agencies do require that the prospective par-
ent visits the country of the child’s birth to meet with
the child before the process is finalized. Meeting the
child is an important turning point in the adoption
process because it is the first chance for the parent
and child to bond, if only for a brief time.
At this point the goal is to make sure all the legal
requirements have been met. Many forms need to be
filled out and filed with different courts and govern-
ment agencies. For domestic adoptions, the child
may be placed with the adoptive family for supervi-
sion to ensure that the adjustment is smooth before
the adoption is finalized. This step depends on the
FAMILY LAW—ADOPTION
584 GALE ENCYCLOPEDIA OF EVERYDAY LAW
state laws and the courts. Overseas adoptions by ne-
cessity cannot require a supervised adjustment peri-
od, so usually when the parent makes a second trip
it is to take CUSTODY of the child. Before this action
can be accomplished, however, the child must be
granted U. S. citizenship. This step involves more
paperwork but usually does not take long. However,
adoptive parents should be prepared to wait just in
case, since two government bureaucracies are at
work instead of one.
Each state has its own regulations regarding the
adoption process, so it is important to learn the laws
governing your particular state and also to know that
the intermediary you choose has a thorough knowl-
edge of your state’s laws and requirements.
Obstacles to the Adoption Process
The adoption process is not thorough simply be-
cause bureaucrats like to make people fill out dozens
of forms. Adoption is a permanent decision, and
each adoption needs to be made ironclad to avoid
difficulties later on.
Probably the greatest fear adoptive parents have
is that the birth parents will change their minds and
petition to get their children back. Although the laws
are thorough, sometimes a birth parent will chal-
lenge an adoption for any one of a number of rea-
sons. Most states allow birth mothers to revoke or
withdraw their consent to give up their children for
adoption; in some states this can be done at any time
before the adoption has been finalized. By law, birth
mothers actually cannot give consent to an adoption
until after their babies have been born; Alabama, Ha-
waii, Washington, and Wisconsin allow prebirth con-
sent in certain circumstances. But there are strict
rules regarding consent. A birth parent who has been
proved to have deserted the child, for example, has
no LEGAL RIGHT to give or revoke consent.
Putative Fathers
Many adoptees are the children of single women
who may not even know the fathers’ identity. Some-
times, birth fathers may wish to exercise their rights
to claim their children. Unwed, or ‘‘putative’’ fathers
can establish certain rights thanks to changes in state
laws since the 1970s. That said, a putative father
needs to prove that he has actually earned these
rights. Putative fathers have to prove their commit-
ment to their children by having signed the birth cer-
tificate, provided support for the child, and commu-
nicated with him or her, and by having obtained a
court order establishing PATERNITY. They should also
have submitted their names to a registry of putative
fathers in their states. Moreover, in most cases all of
these steps need to have been taken before a birth
mother has made a petition to the court to give up
her child for adoption. Court cases involving putative
fathers who tried to revoke adoptions after claiming
they knew nothing of their children’s births have re-
sulted in many states clarifying their laws. Putative fa-
thers may have the law on their side, but again, only
if they can prove they are truly concerned for their
children’s welfare.
Multiethnic Issues
Within pockets of the adoption community the
question of whether to allow children of one race or
color to be adopted by parents of another race or
color is a source of heated controversy. Some people
believe that mixed-race adoptions are a good prac-
tice because they break down racial, ethnic, and cul-
tural barriers. Others see mixed-race adoptions as a
means of diluting the cultural and ethnic heritage of
adopted children.
Multiethnic adoption presents a compelling prob-
lem for two reasons. One is that, as noted above,
there are many more minority children available for
adoption (including mixed-race children). The other
is that there are many more whites than minorities
who are willing to adopt. Insisting on matching race
to race can leave many children without available
parents to adopt them. For children of mixed ances-
try, matching race to race is hardly possible.
Federal law protects parents and children from
this dilemma. The Multi-Ethnic Protection Act
(MEPA) of 1994 states that no adoption agencies that
receive federal funds can deny or delay a placement
based on race or ethnicity. Occasionally there are still
some court cases that raise the issue, but parents
who work with a reputable agency and knowledge-
able attorneys should not have to worry.
MEPA does not cover children of American Indian
(Native American) ancestry. The Indian Child Wel-
fare Act of 1978 was passed to protect Indian chil-
dren from being taken away from their families for
adoption without parental or tribal consent. This ac-
tion was apparently not uncommon in years past,
and the protection is thus important. Unfortunately,
some have read the law to mean that no child with
Indian ancestry can be legally adopted, even with the
birth parent’s consent, without tribal approval. Com-
plicating the matter is the unclear definition of Indi-
an ancestry; some tribes may consider a person with
FAMILY LAW—ADOPTION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 585
one drop of Indian blood to be Indian. Clearly there
are many layers to this issue, and it requires careful
evaluation by the prospective parent with the help
of knowledgeable intermediaries.
Open Adoption
Open adoption allows the birth family to have visi-
tation rights with the child and the adoptive family.
The idea is that maintaining contact with the birth
family is beneficial for the child. In some cases it may
be, but it can also create uncomfortable situations in
which the child ends up being forced to make a
choice most children should never have to make. An
open adoption can take place only if both the adop-
tive and birth parents sign an agreement and only if
that agreement meets the approval of the court. Dif-
ferent states have different rules about open adop-
tion procedures and also different approaches for ad-
dressing whether open adoptions are legally
enforceable.
Again, this issue requires careful consideration by
prospective parents. In some cases agencies encour-
age open adoption, but if you wish to adopt a child
and open adoption makes you uncomfortable, you
should make your concerns known early on.
Searching for Birth Parents
Whether an adopted child may want to know his
or her birth parents does not come up at the time
of adoption but the question is worth thinking about
early on. State laws vary widely on whether adopted
children can have access to the names of their bio-
logical parents. Often those parents do not want con-
tact with the child. Even if they do, the situation can
be problematic for all parties. The issue is not really
within the scope of this discussion, but adoption
agencies and intermediaries should be able to an-
swer questions about it. Bear in mind that, according
to figures form the National Council on Adoption, no
more than two percent of adopted adults search for
their biological parents.
Getting Information
Probably the best first step is to conduct some re-
search, either through materials available at the pub-
lic library or over the Internet. There are a number
of adoption-related web sites, but keep in mind that
not all of them offer the same quality of information.
The National Adoption Information Clearinghouse,
which is run by the U. S. Department of Health and
Human Services’ Administration on Children and
Families, may be a good starting point. Its web ad-
dress is http://www.calib.com/naic.
Because each state’s laws vary so widely, it is criti-
cally important to check with state government agen-
cies that regulate adoption to determine your specif-
ic rights and responsibilities.
There are numerous adoption agencies, and it
makes sense to get information from several before
making a decision on which one would be the best
option. Once you choose an agency, you will be
working with that group for the next several months,
so make sure you are comfortable with your choice.
Additional Resources
The Adoption Resource Book. Lois Gilman, HarperPerenni-
al, 1998.
Family Bonds: Adoption and the Politics of Parenting.
Elizabeth Bartholet, Houghton Mifflin, 1993.
The Law of Adoption and Surrogate Parenting. Irving J.
Sloan, Oceana Publications, 1988.
The Unofficial Guide to Adopting a Child. Andrea Della-
Vecchio, IDG Books Worldwide, 2000.
Organizations
National Council for Adoption (NCFA)
1930 17th Street NW
Washington, DC 20009 USA
Phone: (202) 328-1200
Fax: (202) 332-0935
URL: http://www.ncfa-usa.org
Primary Contact: Patrick Purtill, Chief Executive
Officer
U. S. Department of Health and Human
Services, Administration for Children and
Families
370 L’Enfant Promenade
Washington, DC 20447 USA
Phone: (202) 401-2337
URL: http://www.acf.dhhs.gov
Primary Contact: Wade F. Horn, Assistant Secretary
for Children and Families
FAMILY LAW—ADOPTION
586 GALE ENCYCLOPEDIA OF EVERYDAY LAW
FAMILY LAW
CHILD ABUSE/CHILD SAFETY/DISCIPLINE
Sections within this essay:
• Background
• History
• Defining Child Abuse
• Preventing Child Abuse
• State Laws
• Additional Resources
Background
CHILD ABUSE occurs when a parent or caretaker
physically, emotionally, or sexually mistreats or ne-
glects a child resulting in the physical, emotional, or
sexual harm or exploitation, or imminent risk of
harm or exploitation, or in extreme cases the death,
of a child. Laws regarding child abuse seek to protect
children while at the same time allowing parents the
right to raise and discipline their children as they see
fit. Controversies over child abuse laws arise when
parents or guardians feel that the government is in-
terfering in their private family lives.
History
Child abuse has a lengthy history. Children have
always been subject to abuse by their parents or
other adults, and for many centuries laws failed to
protect them. Children under English COMMON LAW
were considered the property of their fathers until
the late 1800s; American colonists in the seventeenth
and eighteenth centuries carried this tradition to the
early years of the United States.
In the early 1870s, child abuse captured the na-
tion’s attention with news that an eight-year-old or-
phan named Mary Ellen Wilson was suffering daily
whippings and beatings at her foster home. With no
organization in existence to protect abused children,
the orphan’s plight fell to attorneys for the American
Society for the Prevention of Cruelty to Animals
(ASPCA). These attorneys argued that laws protect-
ing animals from abuse should not be greater than
laws protecting children. Mary Ellen Wilson’s case
went before a judge, who convicted the foster moth-
er of ASSAULT AND BATTERY and gave her a one year
sentence. More significantly, the orphan’s case gen-
erated enough outrage over child abuse that in 1874,
citizens formed the New York Society for the Preven-
tion of Cruelty to Children.
Child abuse captured the country’s attention
again in 1962, when an article appearing in the Jour-
nal of the American Medical Association described
symptoms of child abuse and deemed child abuse to
be medically diagnosable. Within ten years, every
state had statutes known as mandatory reporting
laws. Mandatory reporting laws require certain pro-
fessionals—doctors and teachers, for example—to
report to police suspected child abuse situations. A
1974 federal law further bolstered efforts to elimi-
nate child abuse by funding programs to help indi-
viduals identify and report child abuse and to pro-
vide shelter and other protective services to victims.
Defining Child Abuse
Child abuse may involve physical abuse that
causes injury. The most obvious types of physical
child abuse include children who are beaten,
burned, or shaken. Child abuse may involve SEXUAL
GALE ENCYCLOPEDIA OF EVERYDAY LAW 587
ABUSE, although sexual abuse need not result in phys-
ical injury to the child for it to be illegal. Sexual abuse
may include inappropriate touching, fondling, or
even sexual intercourse. Finally, child abuse may in-
volve neglect that places a child at risk, such as when
a child who is left alone without adult supervision,
or a child who is left enclosed and unattended in a
car.
Preventing Child Abuse
In addition to state laws criminalizing child abuse,
states have agencies, known as child protective ser-
vices, that investigate suspected child abuse cases in-
volving the child’s parent or GUARDIAN. When a sus-
pected case of child abuse involves an adult other
than the child’s parent or guardian, law enforcement
agencies such as police departments typically con-
duct the investigation. An investigation may include
a law officer or case worker visiting and interviewing
the child. Parents, guardians, and other possible wit-
nesses such as doctors or teachers also may be ques-
tioned during an investigation.
Once an investigation is completed, the child pro-
tective service or law enforcement agency deter-
mines whether the EVIDENCE substantiates child
abuse. If it does, then the agency will intervene.
There is a spectrum of intervention modalities. In
less severe cases of child abuse— for example, when
a parent unwittingly leaves a child in a car while mak-
ing a quick stop in a grocery store— intervention
may be nothing more than requiring the parent to
meet with a social worker to learn about the dangers
of leaving a child unattended. If it appears to the in-
vestigating agency that an abused child is in immi-
nent danger, the agency may take the child from the
parents and place the child temporarily in a foster
home until the parents demonstrate their willing-
ness to stop the abuse. In extreme cases of child
abuse, the investigating agency may seek assistance
from a court to terminate the parental rights. When
this happens, the child may be placed for permanent
ADOPTION.
Child protective services, in addition to investigat-
ing allegations of child abuse, maintain records re-
garding child abuse. These records are kept in a cen-
tral registry, and in some states, parties such as CHILD
CARE providers or adoption agencies have access to
the central registry. The goal of the central registry
is to help child protective services, and sometimes
other parties, know whether an individual has a his-
tory of abusing children. Although this information
can be invaluable in preventing future child abuse,
central registries may contain false or unsubstantiat-
ed accounts of child abuse, implicating innocent in-
dividuals. For this reason, some groups oppose cen-
tral registries and argue that child protective services
have too much power. One such group, Victims of
Child Abuse Laws (VOCAL), seeks a reform in child
abuse laws to better protect the rights of parents,
who may be falsely ACCUSED of child abuse or neglect.
VOCAL, and groups like it, maintain that it is too
easy for false accusations about child abuse to lead
to the removal of children from their parents and
their homes. False reports of child abuse can come
from children seeking attention or attempting to
avoid reasonable forms of discipline. False reports of
child abuse also may result from animosity between
parents, such as when parents are in the midst of
DIVORCE and CUSTODY battles over their children. The
evidence of child abuse is sometimes nothing more
than a young child’s TESTIMONY. Proponents of child
abuse law reform maintain that police and other offi-
cials can easily manipulate a young child to support
allegations of child abuse. The ramifications of a false
report of child abuse can be serious: officials may re-
move children from their homes and place them in
foster care or permanent new adoptive homes, emo-
tionally scarring both children and parents.
Another difficult issue in the arena of child abuse
concerns discipline. There are many different views
regarding what constitutes discipline and where the
line should be drawn between reasonable parental
discipline and child abuse. For example, some par-
ents feel that spanking or hitting a child is abusive be-
havior; other parents rely on spanking, or the threat
of a spanking, to teach children to obey and behave.
Using physical measures to discipline children is
known as corporal punishment. In trying to prevent
child abuse, legal and governmental agencies at-
tempt to balance the parents’ right to raise their chil-
dren in the manner they feel is appropriate with the
child’s right to be safe and unharmed.
Some forms of child abuse are caused not by a
parent’s willful abuse, but rather, by a parent’s
NEGLIGENCE. One common, and oftentimes tragic,
form of neglect occurs when a parent accidentally
leaves a sleeping baby in a car on a warm day. In the
sun, the interior of a car can heat within minutes to
more than 100 degrees, temperatures that a baby
cannot survive. Whether to charge parents in these
situations with child abuse is a divisive issue. Some
people maintain that careless parents should be
FAMILY LAW—CHILD ABUSE/CHILD SAFETY/DISCIPLINE
588 GALE ENCYCLOPEDIA OF EVERYDAY LAW
prosecuted; other people believe that a parent who
loses a child due to the parent’s mistake suffers
enough without being prosecuted.
State Laws
ALABAMA: STATUTE defines child abuse as harm or
threatened harm of physical abuse, neglect, sexual
abuse, sexual exploitation, or emotional/mental inju-
ry against a child under the age of 18. Statute con-
tains an exemption for religious reasons for a par-
ent’s failure to obtain medical help for the child.
ALASKA: Statute defines child abuse as harm or
threatened harm of physical abuse, neglect, sexual
abuse, sexual exploitation, or emotional/mental inju-
ry of a child under the age of 18. Statute contains an
exemption for religious reasons for a parent’s failure
to obtain medical help for the child.
ARIZONA: Statute defines child abuse as inflicting
or allowing physical abuse, neglect, sexual abuse,
sexual exploitation, emotional/mental injury, or
ABANDONMENT of a child under the age of 18. Statute
contains an exemption for Christian Scientists or un-
availability of reasonable resources for a parent’s fail-
ure to obtain medical help for the child.
ARKANSAS: Statute defines child abuse as intention-
ally, knowingly, or negligently without cause inflict-
ing physical abuse, neglect, sexual abuse, sexual ex-
ploitation, abandonment or emotional/mental injury
of a child under the age of 18. Statute contains ex-
emptions for poverty or corporal punishment.
CALIFORNIA: Statute defines child abuse as inflicting
by non-accidental means physical abuse, neglect,
sexual abuse, or sexual exploitation of a child under
the age of 18. Statute contains exemptions for reli-
gion, reasonable force, and informed medical deci-
sion.
COLORADO: Statute prohibits threats to a child’s
health and welfare due to physical abuse, neglect,
sexual abuse, sexual exploitation, emotional/mental
injury, or abandonment. Statute contains exemp-
tions for corporal punishment, reasonable force, reli-
gious practices, and cultural practices.
CONNECTICUT: Statute prohibits injuries inflicted
by non-accidental means involving physical abuse,
neglect, sexual abuse, sexual exploitation, emotional/
mental injury, or abandonment. Statute contains ex-
emption for Christian Scientists.
DELAWARE: Statute prohibits injuries inflicted by
non-accidental means involving physical abuse, ne-
glect, sexual abuse, sexual exploitation, emotional/
mental injury, or abandonment. Statute contains ex-
emption for religion.
DISTRICT OF COLUMBIA: Statute prohibits persons
from inflicting and requires people to take reason-
able care not to inflict injuries involving physical
abuse, neglect, sexual abuse, sexual exploitation, or
emotional/mental injury. Statute contains exemption
for poverty and religion.
FLORIDA: Statute prohibits willful or threatened act
that harms or is likely to cause harm of physical
abuse, neglect, sexual abuse, sexual exploitation,
abandonment, or emotional/mental injury. Statute
contains exemptions for religion, poverty, or corpo-
ral punishment.
GEORGIA: Statute prohibits injuries inflicted by non-
accidental means involving physical abuse, neglect,
sexual abuse, or sexual exploitation. Statute contains
exemption for religion and corporal punishment.
HAWAII: Statute prohibits acts or omissions resulting
in the child being harmed or subject to any reason-
ably foreseeable, substantial risk of being harmed
with physical abuse, neglect, sexual abuse, sexual ex-
ploitation, or emotional/mental injury. Statute con-
tains no exemptions.
IDAHO: Statute prohibits conduct or omission re-
sulting in physical abuse, neglect, sexual abuse, sexu-
al exploitation, abandonment, or emotional/mental
injury. Statute contains exemption for religion.
ILLINOIS: Statute prohibits persons from inflicting,
causing to be inflicted, or allowing to be inflicted, or
creating a substantial risk, or committing or allowing
to be committed, physical abuse, neglect, sexual
abuse, sexual exploitation, or emotional/mental inju-
ry. Statute contains exemptions for religion, school
attendance, and plan of care.
INDIANA: Statute prohibits act or omission resulting
in physical abuse, neglect, sexual abuse, sexual ex-
ploitation, abandonment, or emotional/mental inju-
ry. Statute contains exemptions for religion, pre-
scription drugs, or corporal punishment.
KENTUCKY: Statute prohibits harm or threat of
harm, or infliction or allowance of infliction of physi-
cal abuse, neglect, sexual abuse, sexual exploitation,
abandonment, or emotional/mental injury. Statute
contains exemptions for religion.
MARYLAND: Statute prohibits harm or substantial
risk of harm resulting in physical abuse, neglect, sex-
FAMILY LAW—CHILD ABUSE/CHILD SAFETY/DISCIPLINE
GALE ENCYCLOPEDIA OF EVERYDAY LAW 589
ual abuse, sexual exploitation, or emotional/mental
injury. Statute contains no exemptions.
MICHIGAN: Statute prohibits harm or threatened
harm of physical abuse, neglect, sexual abuse, sexual
exploitation, or emotional/mental injury. Statute
contains exemptions for religion.
MISSISSIPPI: Statute prohibits persons from causing
or allowing to be caused physical abuse, neglect, sex-
ual abuse, sexual exploitation, or emotional/mental
injury. Statute contains exemption for religion and
corporal punishment.
NEBRASKA: Statute prohibits knowingly, intentional-
ly, or negligently causing or permitting physical
abuse, neglect, sexual abuse, sexual exploitation, or
emotional/mental injury. Statute contains no exemp-
tions.
NEW MEXICO: Statute prohibits knowingly, inten-
tionally, or negligently causing or permitting physical
abuse, neglect, sexual abuse, sexual exploitation,
abandonment, or emotional/mental injury. Statute
contains exemption for religion.
NORTH DAKOTA: Statute prohibits serious harm
caused by non-accidental means resulting in physical
abuse, neglect, sexual abuse, sexual exploitation,
abandonment, or emotional/mental injury. Statute
contains no exemptions.
OKLAHOMA: Statute prohibits harm or threat of
harm resulting in physical abuse, neglect, sexual
abuse, sexual exploitation, abandonment, or emo-
tional/mental injury. Statute contains exemptions for
religion or corporal punishment.
PENNSYLVANIA: Statute prohibits recent act or fail-
ure to act resulting in physical abuse, neglect, sexual
abuse, sexual exploitation, or emotional/mental inju-
ry. Statute contains exemptions for religion or pover-
ty.
SOUTH DAKOTA: Statute prohibits threat with sub-
stantial harm resulting in physical abuse, neglect,
sexual abuse, sexual exploitation, abandonment, or
emotional/mental injury. Statute contains no exemp-
tions.
TENNESSEE: Statute prohibits persons from com-
mitting or allowing to be committed physical abuse,
neglect, sexual abuse, sexual exploitation, or emo-
tional/mental injury. Statute contains no exemptions.
UTAH: Statute prohibits harm or threat of harm re-
sulting in physical abuse, neglect, sexual abuse, sexu-
al exploitation, or emotional/mental injury. Statute
contains no exemptions.
WASHINGTON: Statute prohibits harm of health,
welfare, or safety resulting from physical abuse, ne-
glect, sexual abuse, or sexual exploitation. Statute
contains exemptions for Christian Scientists, corpo-
ral punishment, or physical DISABILITY.
Additional Resources
National Clearinghouse on Child Abuse and Neglect In-
formation. Available at www.calib.com
West’s Encyclopedia of American Law. West Group, 1998.
Organizations
American Professional Society on the Abuse
of Children
940 NE 13th Street
Oklahoma City, OK 73104 USA
Phone: (405) 271-8202
URL: www.apsac.org
Prevent Child Abuse America
200 South Michigan Avenue, 17th Floor
Chicago, IL 60604-2404 USA
Phone: (312) 663-3520
URL: www.preventchildabuse.org
FAMILY LAW—CHILD ABUSE/CHILD SAFETY/DISCIPLINE
590 GALE ENCYCLOPEDIA OF EVERYDAY LAW
FAMILY LAW
CHILD SUPPORT/CUSTODY
Sections within this essay:
• Background
• Child Custody
- Joint Custody
- Split Custody
- Custody Disputes
• Child Support
• Mediation
• State Laws
• Additional Resources
Background
Historically, fathers had sole rights to CUSTODY.
Since custody was connected to INHERITANCE and
property laws, mothers had no such rights. Begin-
ning in the late nineteenth century courts began to
award custody of young boys and of girls of all ages
solely to mothers on the presumption that mothers
are inherently better caretakers of young children.
Most states followed this maternal preference and
mothers almost always received custody. Eventually,
many state courts found this preference to be uncon-
stitutional, and gender-neutral custody statutes re-
placed maternal preference standards in forty-five
states by 1990. Today, the custody arrangement is
typically part of the DIVORCE DECREE. The decree pro-
vides specifics as to where the child will live, how vis-
itation will be handled, and who will provide financial
support. Courts consider custody and CHILD SUPPORT
issues as subject to change until the child involved
reaches the AGE OF MAJORITY. In many divorces physi-
cal custody is awarded to the parent with whom the
child will live most of the time. Often, the custodial
parent shares joint legal custody with the noncus-
todial parent, meaning that the custodial parent
must inform and consult with the noncustodial par-
ent about the child’s education, health care, and
other concerns. In this situation, courts may order
visitation, sometimes called temporary custody, be-
tween the child and the noncustodial parent. A clear
schedule with dates and times is often incorporated
into the decree. Child support is usually paid by the
noncustodial parent to the custodial parent. States
have formulas to assist judges in determining the ap-
propriate amount of child support.
Child Custody
Joint Custody
Some states have a presumption that joint custo-
dy is in the best interest of the child, while other
states have no provision for it. Advocates of joint cus-
tody claim it lessens the feeling of losing a parent
that children may experience after a divorce and that
it is fair to both parents. However, because of the
high degree of cooperation joint custody requires,
courts resist ordering it if either of the parents does
not want it or if there is EVIDENCE of past DOMESTIC
VIOLENCE. Later problems regarding medical or edu-
cation decisions concerning the child may develop
necessitating long and lengthy court proceedings.
Split Custody
Split custody is an arrangement in which the par-
ents divide custody of their children, with each par-
ent being awarded physical custody of one or more
children. In general, courts try to avoid split custody
GALE ENCYCLOPEDIA OF EVERYDAY LAW 591
because it separates siblings, which is usually not
considered to be in the best interest of the child.
Custody Disputes
Many states have adopted a standard that places
primary emphasis on the best interests of the child
when custody is disputed. Today, courts exercise
their discretion in awarding custody, considering all
relevant factors, including marital misconduct, to de-
termine the children’s best interests. The court may
consider such matters as the wishes of the child’s
parents; the wishes of the child; the relationship be-
tween each parent and the child, and any other per-
son who interacts with the child (including step-
parents); the child’s adjustment to home, school,
community; the mental and physical health of all in-
dividuals involved; which parent will foster a positive
parent-child relationship between the child and the
other parent; who was the primary caretaker; the na-
ture and extent of COERCION, if any, by a parent in ob-
taining an agreement regarding custody; and wheth-
er either parent has complied with an order to attend
domestic relations education if the state requires it.
Domestic violence is considered not to be in the best
interest of a child and in many states a parent’s
CONVICTION for any domestic violence can weigh
heavily against that parent’s bid for custody.
Child Support
In determining child support obligations, courts
generally hold that each parent should contribute in
accordance with his or her means. Child support is
a mutual duty, although the primary caretaker of pre-
school children may not be required to obtain em-
ployment. All states have enacted some form of the
Reciprocal Enforcement of Support Act. URESA is a
uniform law designed to facilitate the interstate en-
forcement of support obligations. URESA allows an
individual who is due ALIMONY or child support from
someone who lives in a different state to bring action
for receipt of the payments in the home state. This
measure circumvents such problems as expense and
inconvenience inherent in traveling from one state
to another in pursuit of support.
In response to federal legislation, state laws re-
garding child support payments have become more
severe. State laws can require employers to withhold
child support from the paychecks of parents who are
delinquent for one month. Employers are to be held
responsible if they do not comply fully. State laws
must provide for the imposition of liens against the
property of those who owe support. Unpaid support
must be deducted from federal and state INCOME TAX
refunds. Expedited hearings are required in support
cases.
Mediation
MEDIATION is a centered resolution process assist-
ed by an IMPARTIAL trained third party to assist the
parties in reaching an informed and consensual
agreement. Many parents find the process useful in
figuring out which custody and visitation arrange-
ment can work best for them and their child. Media-
tion typically provides a non-adversarial setting in
which to resolve the conflicts that arise over finan-
cial, parenting, and other issues. It allows the parents
to control many aspects of the court process, rather
than deferring to a judge. Additionally, parties who
are able to reach an agreement in mediation can save
significant court costs and attorneys’ fees.
State Laws
State law varies considerably with respect to di-
vorce. States have differing residency requirements,
property rules, and spousal support provisions.
ALABAMA: Both parents have an equal right to the
custody of their children. Under Alabama law, a court
may consider an award of joint custody, whereby the
parental rights of both parties remain intact, with
one parent as the primary custodian of the children
and the other as the secondary custodian. Under this
arrangement, both parents remain involved in the
decision making responsibilities regarding the chil-
dren, with each parent having ‘‘tie breaking’’ authori-
ty regarding certain issues, such as education, health
and dental care, religion, civic and cultural activities,
and athletic involvement. Child support is deter-
mined under the Alabama Child Support Guidelines,
unless the Court finds grounds to deviate from the
guidelines. In Alabama, the Department of Human
Resources is responsible for enforcing child support
obligations. The court retains JURISDICTION to modify
child support, up or down, until the children reach
the age of 19.
ALASKA: The court determines custody in accor-
dance with the best interests of the child and may
consider all relevant factors. Domestic violence may
be considered contrary to the best interest of the
child. There is no presumption in favor of sole custo-
dy or joint custody. Joint custody may be ordered if
both parents agree and submit a written parenting
FAMILY LAW—CHILD SUPPORT/CUSTODY
592 GALE ENCYCLOPEDIA OF EVERYDAY LAW
plan and such joint custody is in the child’s best in-
terest. Child support is based on Flat Percentage of
Income model. Support terminates at age 18, or 19
if child is enrolled in high school or the equivalent
and is residing with custodial parent. Court may not
require either parent to pay for post-majority college
tuition.
ARIZONA: There is no presumption in favor of joint
custody. Joint custody may be granted if both par-
ents agree, the parents submit a parenting plan, and
the order is in the child’s best interests. Evidence of
domestic violence must be considered contrary to
the best interests of the child. In determining the
best interests of the child, the court can consider: the
wishes of the child’s parents; the wishes of the child;
the interaction among the child and relatives; the
child’s adjustment to school, home, and community;
the mental and physical health of the parties; which
parent is more likely to involve the child in the life
of the other parent; if either parent has been the pri-
mary care giver; the nature and extent of coercion
used by a parent in obtaining a written agreement re-
garding custody; whether either parent has com-
plied with an order to attend domestic relations edu-
cation. The non-custodial parent is entitled to
reasonable visitation, which shall not be restricted
unless the court finds serious endangerment to the
child. Child support guidelines are based on Income
Shares Model, and award is calculated on GROSS
INCOME. Support terminates at age 18, or when the
child graduates from high school. The court may not
order the parents to pay for the college education
costs of the child.
ARKANSAS: The court shall determine custody in ac-
cordance with the best interests of the child. Child
Support guidelines adopt Varying Percentage of In-
come Model, basing noncustodial parent’s obligation
on a percentage of NET income, which percentage
decreases as income goes higher. Support termi-
nates at age 18 or when child graduates from high
school. Parents cannot be compelled to pay for the
college education of their children.
CALIFORNIA: There is no presumption in favor of
joint or sole custody; custody shall be awarded to
both parents jointly or to either parent AS IS in the
best interests of the child. However, where the par-
ties agree to joint custody, then joint custody shall
be presumed to be in the best interests of the child.
In awarding custody, the court shall consider which
parent is more likely to foster a positive relationship
between the child and the other parent. An explicit
link between custody and child support is made by
the provision that a court may order financial com-
pensation to one parent for those periods of time the
other parent fails to assume care taking responsibili-
ty. There may be additional financial compensation
awarded to a parent who has been repeatedly thwart-
ed by the other parent in attempts to exercise custo-
dy/visitation. Statewide Uniform Guidelines are an
Income Shares model, explicitly taking into consider-
ation the time each parent has custody of the child.
COLORADO: Joint custody, with one parent desig-
nated residential custodian, may be awarded when
the parties submit a parenting plan. If no plan is sub-
mitted, the court shall determine custody in accor-
dance with the best interests of the child. Child Sup-
port Guidelines are based on Income Shares model,
based on gross income of both parents. Support ter-
minates at age 18 or when child graduates from high
school. Parents cannot be compelled to pay for the
college education of their children.
CONNECTICUT: If the parents agree to joint custo-
dy, then it is presumed that joint custody is in the
best interests of the child, and the court must state
its reasons for denial of joint custody. The court may
award joint legal custody with primary physical cus-
tody to one parent. Visitation may be granted to
grandparents or any person if it is in the child’s best
interests. Child Support guidelines are based on the
Income Shared Model, taking into consideration the
net income of both parents. Child support termi-
nates when the child reaches 18 years of age.
DISTRICT OF COLUMBIA: There is no presumption
as to the form of legal custody. The court may order
frequent and continuing contact between each party
and the child. The court’s order shall be based on the
best interests of the child. The court can consider the
wishes of the parents, the wishes of the child, the in-
teraction and interrelationship among all family
members, the mental and physical health of all par-
ties, the capacity of the parties to communicate, the
demands of parental employment, the age and num-
ber of children, the parents’ financial ability to sup-
port the custody arrangement and the impact of gov-
ernmental assistance. Child support guidelines are a
hybrid model, sharing aspects of both the income
shares and percentage of income model. The award
is based on parties’ gross incomes, with a self-
support reserve for each parent. By STATUTE, a child
is entitled to support until age 21.
FLORIDA: The court must order that parental re-
sponsibility for a minor child be shared by both par-
FAMILY LAW—CHILD SUPPORT/CUSTODY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 593
ents, unless it is detrimental to the child. The court
may grant to one party the ultimate responsibility
over specific aspects of the child’s welfare. The court
shall order sole parental responsibility with or with-
out visitation to the other parent when it is in the
best interests of the child. The court may order rotat-
ing custody. Child Support Guidelines are the In-
come Shares Model of support, figured on net in-
come. Health insurance, childcare, and education
expenses are added to the basic award. Support ter-
minates at age 18, or 19 if the child will graduate from
high school by that time.
GEORGIA: The court may award joint custody and
may consider agreements of the parties, if they are
in the best interests of the child. The court shall
award custody as in the best interests of the child. If
a child is 14 years old or older, the child shall have
the right to select the parent with whom he desires
to live, and such selection shall be controlling unless
the parent is not fit. The court may consider family
violence in making a decision. Visitation shall be or-
dered unless there is a history of family violence.
Child support is STATUTORY. It is the flat percentage
of income model, calculated on gross income, with
most extra expenses being a deviation factor.
HAWAII: Custody is determined according to the
best interests of the child. If a child is of sufficient age
and capacity to reason, so as to form an intelligent
preference, the child’s wishes can be considered.
Joint custody may be awarded in the discretion of the
court. Visitation may be awarded to grandparents or
any person interested in the welfare of the child.
Guidelines set out in court rule follow the Melson
Formula. Support is calculated on net income, with
allowances for household members.
ILLINOIS: There is no presumption for or against
joint custody. Custody is determined based on the
best interests of the child, considering the parents’
and the child’s wishes. Child support guidelines are
statutory, based on a flat percentage of income
model based on net income.
INDIANA: Joint custody may be awarded if it is in the
child’s best interests. The relevant factors for deter-
mining custody are the parents’ and child’s wishes,
the interaction and relationship of the child with any
person who may significantly affect his or her best in-
terests; the mental and physical health of all individu-
als involved, and a pattern of domestic violence.
Child support guidelines are set out in the Indiana
Rules of Court. The guidelines are based on the in-
come shares model, based on gross income. Support
may include sums necessary for a child’s education,
including post-majority education.
IOWA: If either party requests joint custody, there is
a presumption of joint custody. If the court does not
grant joint custody, it must clearly state its reasons
why joint custody is not in the best interests of the
child. Joint custody does not necessarily require joint
physical care. Physical care shall be awarded as is in
the best interests of the child. Child support guide-
lines are enacted by the supreme court of Iowa by
court rule. The guidelines are based on the income
shares model, based on gross income.
KENTUCKY: The court may grant joint custody to the
child’s parents if it is in the child’s best interests. The
court may not consider conduct of a custodian that
does not affect his or her relationship to the child,
nor may it consider ABANDONMENT of the family resi-
dence if it was to avoid physical harm. Child support
guidelines set out by statute. The guidelines are
based on the income shares model, based on gross
income. Support may include sums necessary for a
child’s education, including post-majority education.
LOUISIANA: The court shall award custody in accor-
dance with the parents’ agreement, unless the best
interests of the child require otherwise. If there is no
agreement or if the agreement is not in the best in-
terests of the child, the court shall award joint custo-
dy, unless custody by one parent is shown by clear
and convincing evidence to serve the child’s best in-
terests. Factors for determining the child’s best inter-
ests include a stable environment and the primary
caretaker preference. The parent not awarded custo-
dy is entitled to reasonable visitation. Child support
guidelines are statutory. They are based on the In-
come Shares Model and are based on gross income
of the parents.
MARYLAND: The court may award joint custody or
sole custody. The court shall deny custody to a party
if the court has reasonable grounds to believe that
the party abused or neglected the child and that
there is a likelihood of further abuse or neglect.
Child support guidelines set out by statute. The
guidelines are based on the income shares model,
based on gross income.
MAINE: When the parties have agreed to shared pa-
rental rights and responsibilities, the court shall
make such an award absent substantial evidence that
it should not be ordered. In making an award of pa-
rental rights and responsibilities, the court applies
the best interests of the child standard. The court
FAMILY LAW—CHILD SUPPORT/CUSTODY
594 GALE ENCYCLOPEDIA OF EVERYDAY LAW
may not apply a preference for one parent over the
other on account of either parent’s gender or the
child’s age and gender. The court may order grand-
parent or third party visitation. Child support guide-
lines are statutory. They are based on the Income
Shares Model, based on gross income.
MASSACHUSETTS: Each parent must submit to the
court a shared custody implementation plan. The
court may modify or grant the plan. The court may
reject the plan and award sole custody to one parent.
Child Support Guidelines are provided in the Massa-
chusetts Court Rules, promulgated by the Supreme
Judicial Court. The Massachusetts guidelines are a
hybrid form of the Percentage of Income model and
Income Shares Model. Support is calculated on the
gross income of the non-custodial parent, but then
offset by a percentage of income of the custodial par-
ent over a certain floor. Support for education of the
child is through age 21.
MICHIGAN: Custody is awarded based on the best
interests of the child, based on the following factors:
moral character and prudence of the parents; physi-
cal, emotional, mental, religious and social needs of
the child; capability and desire of each parent to
meet the child’s emotional, educational, and other
needs; preference of the child, if the child is of suffi-
cient age and maturity; the love and affection and
other emotional ties existing between the child and
each parent; the length of time the child has lived in
a stable, satisfactory environment and the desirability
of maintaining continuity; the desire and ability of
each parent to allow an open and loving frequent re-
lationship between the child and other parent; the
child’s adjustment to his/her home, school, and com-
munity; the mental and physical health of all parties;
permanence of the family unit of the proposed cus-
todial home; any evidence of domestic violence; and
other factors. There is a joint custody presumption
if the parties agree to joint custody. The court may
also award joint custody if one party requests joint
custody and the court finds it to be in the best inter-
ests of the child. In deciding whether to grant joint
custody, the court shall consider all of the above fac-
tors plus whether the parents will be able to cooper-
ate; whether the parents have agreed to joint custo-
dy. Child support payments are made through the
Michigan FRIEND OF THE COURT Bureau. Child sup-
port guidelines are contained in the Michigan Friend
of Court Child Support Manual. The guidelines are
based on the Income Shares Model, calculated on
each parent’s net income.
MINNESOTA: If both parents request joint custody,
there is a presumption that such an arrangement is
in the best interests of the child, unless there has
been spousal abuse. Sole custody can be awarded
based on the best interests of the child. Additional
visitation may be ordered for wrongful denial or in-
terference with visitation orders. Child support
guidelines are based on the Varying Percentage of In-
come formula, calculated on net income.
MISSISSIPPI: Custody is determined based on the
best interests of the child. Joint custody may be
awarded if both parents request joint custody, and
if they so request joint custody, there is a presump-
tion that joint custody is in the best interests of the
child. The court may order any of the following: Joint
physical custody to one or both parents, with legal
custody to one or both parents; physical custody to
both parents, with legal custody to one parent; physi-
cal custody to one parent, with legal custody to both
parents; custody to a third party if the parents have
abandoned the child or are unfit. Child support
guidelines are based on the Flat Percentage of In-
come model, calculated on net income.
MISSOURI: The court determines custody based on
the best interests of the child. Custody can be joint
legal, joint physical, sole legal, sole physical, or any
combination. An award of joint custody is encour-
aged. Child support guidelines are based on the In-
come Shares Formula, calculated on gross income.
MONTANA: Each parent is required to submit, either
jointly or separately, a proposed ‘‘parenting plan.’’
Sole or joint parenting is awarded based on the best
interests of the child. Child support guidelines are
set out in the Montana Administrative Rules. The
support guidelines are based on the Melson Formu-
la, calculated on net income.
NEBRASKA: The court makes a custody determina-
tion based on the best interests of the child, which
include the relationship of the child to each parent;
the desires and wishes of the child; the general
health, welfare, and social behavior of the child;
credible evidence of any abuse in the household.
Joint custody may be awarded when both parents
agree to such an arrangement. Child support guide-
lines were established by court rule and are con-
tained in the Rules of the Supreme Court. The guide-
lines are based on the Income Shares Formula and
are calculated on net income.
NEVADA: Best interests of the child is the standard.
The court awards custody in the following order of
FAMILY LAW—CHILD SUPPORT/CUSTODY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 595
preference unless in a particular case the best inter-
est of the child requires otherwise: to both parents
jointly or to either parent; to a person or persons in
whose home the child has been living and where the
child has had a wholesome and stable environment;
to any person related within the third degree of con-
sanguinity; to any other person or persons whom the
court finds suitable and able to provide proper care.
In determining the best interests of the child, the
court considers: the wishes of the child if the child
is of sufficient age and maturity; any nomination by
a parent for a GUARDIAN; whether either parent has
engaged in domestic violence. A finding of domestic
violence creates a rebuttable presumption that cus-
tody would not be appropriate by the PERPETRATOR.
Child support guidelines are based on the varying
percentage of income model. Support is figured by
applying a percentage to the obligor’s gross income,
which percentage gradually decreases as the income
rises.
NEW HAMPSHIRE: Joint legal custody is presumed
to be in the best interests of the child, unless the
child has been abused by one of the parents. Custody
is awarded based on preference of the child, educa-
tion of the child, findings and recommendations of
a neutral mediator, and other factors. Child support
amounts are set out by statute. The guidelines are
based on the Income shares model figured on net in-
come.
NEW MEXICO: Joint custody is presumed to be in
the best interests of the child. The court may award
joint or sole custody as in the best interests of the
child, upon consideration of five enumerated factors.
Child support guidelines are based on the Income
Shares Model, calculated on gross income.
NEW JERSEY: Sole or joint custody may be awarded
based on the needs of the child. There is no prefer-
ence for either parent and no preference for joint
custody. Child support guidelines are contained in
New Jersey Court Rules. The guidelines are based on
the Income Shares model figured on net income.
NEW YORK: Joint or sole custody is determined ac-
cording to the best interests of the child. Neither par-
ent is entitled to a preference. Child support guide-
lines are based on the Income Shares Model,
calculated on net income.
NORTH CAROLINA: Joint or sole CHILD CUSTODY is
determined according to the interests and welfare of
the child. There is no presumption that either parent
is better suited to have custody. The court considers
all relevant factors, including acts of domestic vio-
lence and the safety of the child. Child support
guidelines are based on the Income Shares Model
and calculated on gross income.
OHIO: If at least one parent requests shared parent-
ing and files a plan that is in the child’s best interests
and approved by the court, the court may allocate
parental rights and responsibilities of the child to
both parents and issue a shared parenting order.
Otherwise, the court, consistent with the child’s best
interests, allocates parental rights and responsibili-
ties primarily to one parent. Child support guidelines
are based on the Income Shares Model and is calcu-
lated on net income. Termination of child support is
at age 18 or graduation from high school, whichever
occurs later.
OREGON: The court may order joint custody if the
parents agree, but if one parent objects, the court
cannot order joint custody. An order for joint custo-
dy may specify one home as the primary residence
of the child and designate one parent to have sole
power to make decisions regarding specific matters
while both parents retain equal rights and responsi-
bilities for other matters. When ordering sole custo-
dy, the court can consider the conduct, marital sta-
tus, income, social environment or lifestyle of either
party only if it is shown that these factors are causing
or may cause damage to the child. Any person who
has established emotional ties creating a parent/child
relationship with a child may petition for custody,
placement, or visitation. The child support guide-
lines formula is based on the Income Shares Formu-
la, calculated on gross income.
TEXAS: Joint or sole custody is determined accord-
ing to the best interests of the child. The court con-
siders the best interests of the children deciding
upon the terms and conditions of the rights of the
parent with visitation. Child support guidelines, by
statute, are based on a percentage of income of the
noncustodial parent’s net income. Support termi-
nates at age 18 or graduation from high school,
whichever is later. No statute or CASE LAW requires
support for college.
UTAH: The court considers the best interests of the
child along with the past conduct and demonstrated
moral standards of the parties. There is a presump-
tion that a spouse who has been abandoned is enti-
tled to custody. State law contains advisory guide-
lines for visitation schedules, broken down by age of
the child. Child support guidelines are based on the
income shares model, calculated on gross income.
FAMILY LAW—CHILD SUPPORT/CUSTODY
596 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Support terminates at age 18 or when the child grad-
uates from high school. In a divorce action, the court
may order support to the age of 21.
WEST VIRGINIA: There is a presumption in favor of
the parent who has been the primary caretaker of the
child. There is no provision for joint custody. Child
support guidelines are based on the income shares
model, calculated on ADJUSTED GROSS INCOME. Sup-
port terminates at age 20, or up to age 20 if the child
is still enrolled in secondary school. The court may
award support for college tuition.
Additional Resources
Joint Custody with a Jerk: Raising a Child with an Unco-
operative EX. Ross, Julie, St. Martin’s Press, 1996.
Why Did You Have to Get a Divorce? and When Can I Get
a Hamster?: A Guide to Parenting through Divorce.
Wolf, Anthony E., Farrar, Straus & Giroux, 1998.
Organizations
American Bar Association
750 N. Lake Shore Dr.
Chicago, IL 60611 USA
Phone: (312) 988-5603
Fax: (312) 988-6800
URL: http://www.abanet.org
FAMILY LAW—CHILD SUPPORT/CUSTODY
GALE ENCYCLOPEDIA OF EVERYDAY LAW 597
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FAMILY LAW
COHABITATION
Sections within this essay:
• Background
• Unmarried Cohabitation Compared with
Marriage
- Criminal Statutes
- Legal Status and Discrimination
- Acquisition of Property
- Children
- Adoption
- Eligibility for Benefits
• Recognition of Domestic Partners
• Common Law Marriage
• Agreements Between Unmarried Cohabi-
tants
- Validity
- Provisions of Written Cohabitation
Agreements
- Wills and Durable Power of Attorney
for Health Care
• State and Local Provisions Regarding Cohab-
itation
• Additional Resources
Background
The law has not traditionally looked favorably
upon individuals living together outside marriage.
However, the law in this area has changed considera-
bly in the past 40 years, and COHABITATION has in-
creased dramatically. In 1970, about 530,000 couples
reportedly lived together outside marriage. This
number increased to 1.6 million in 1980, 2.9 million
in 1990, 4.2 million in 1998, and 5.5 million in 2000.
In some respects, unmarried cohabitation can be
beneficial from a legal standpoint. Unmarried part-
ners may define the terms of their relationship with-
out being bound by marriage laws that can restrict
the marriage relationship. When a relationship ends,
unmarried cohabitants need not follow strict proce-
dures to DISSOLVE the living arrangement. Moreover,
unmarried couples can avoid the so-called ‘‘marriage
tax’’ in the Internal Revenue Code that provides a
greater tax rate for unmarried couples than it does
for two unmarried individuals (notwithstanding ef-
forts to eliminate this PENALTY).
On the other hand, unmarried cohabitants do not
enjoy the same rights as married individuals, particu-
larly with respect to property acquired during a rela-
tionship. Marital property laws do not apply to un-
married couples, even in long-term relationships.
Moreover, laws regarding distribution of property of
one spouse to another at death do not apply to un-
married couples. Children of unmarried couples
have traditionally not been afforded the same rights
as children of married couples, though most of these
laws have now been revised to avoid unfairness to-
wards offspring.
A fairly recent trend among both heterosexual and
homosexual couples who live together is to enter
into contracts that provide rights to both parties that
are similar to rights enjoyed by married couples. In
fact, many FAMILY LAW experts now recommend that
unmarried cohabitants enter into such arrange-
ments. Further changes in the laws may also afford
greater rights to unmarried partners who live togeth-
er. However, such arrangements may be invalid in
some states, particularly where the contract is based
on the sexual relationship of the parties.
GALE ENCYCLOPEDIA OF EVERYDAY LAW 599
Unmarried Cohabitation Compared with
Marriage
Family laws related to marriage simply do not
apply to unmarried couples. More specifically, mar-
riage creates a legal status between two individuals
that gives rise to certain rights to both parties and to
the union generally. Unmarried cohabitants do not
enjoy this status and do not enjoy many of the rights
afforded to married couples. Thus, if a couple is mar-
ried for two years, and a spouse dies, the other
spouse is most likely entitled to receive property, in-
surance benefits, death benefits, etc., from the other
spouse’s estate. If an unmarried couple lives togeth-
er for 20 years, and one partner dies, the other is not
guaranteed any property or benefits.
Though many groups support legal reforms pro-
viding protection to unmarried cohabitants that
would be analogous to laws governing marriage, very
few such laws exist today. Unmarried cohabitants
need to know what laws do exist in their state and
cities and know what their options are regarding
contractual agreements that may provide themselves
rights that are analogous to marital rights.
Criminal Statutes
Laws prohibiting cohabitation and sexual relations
outside marriage were very common until about
the1970s. Though most of these laws have been re-
pealed or are no longer enforced, they still exist in
some state statutes. Eight states still have laws pro-
hibiting cohabitation, which is usually defined as two
individuals living together as husband and wife with-
out being legally married. Nine states prohibit forni-
cation, which is usually defined as consensual sexual
intercourse outside marriage. More than 15 states
prohibit SODOMY, which includes any ‘‘unnatural’’
sexual activity, such as anal or oral sex. Several of
these statutes apply specifically to homosexual activi-
ty.
While most of these criminal laws are clearly anti-
quated, they are sometimes enforced. In the United
States Supreme Court case of Bowers v. Hardwick in
1986, the court upheld the enforcement of a criminal
STATUTE prohibiting sodomy between two homosex-
ual men. Criminal statutes proscribing private sexual
activity do not violate the federal constitution under
Bowers, though some state courts have held that
similar statutes are unconstitutional under the rele-
vant state constitutions.
Legal Status and Discrimination
A person living as an unmarried cohabitant with
another might face some form of DISCRIMINATION.
For example, an employer may expressly forbid em-
ployees from living together outside marriage and
may terminate the employment of an employee who
does cohabit with someone else outside marriage.
Such discrimination in employment is not generally
forbidden, either under federal law or under the laws
of most states. Some state cases have, however, up-
held the rights of individuals’ cohabiting outside
wedlock.
Acquisition of Property
Marital and COMMUNITY PROPERTY laws govern the
ownership of property acquired during a marriage.
The characterization of property acquired by unmar-
ried cohabitants is less clear. Some property ac-
quired by unmarried couples may be owned jointly,
but it may be difficult to divide such property when
the relationship ends. Similarly, if one partner has
debt problems, a CREDITOR may seek to attach prop-
erty owned jointly by both partners as if the partner
owing the debt solely owned the property. Problems
such as these are even more complicated if one part-
ner dies without a will, since the surviving partner
has no right to the other partner’s property unless
the property is devised to the surviving partner.
Children
Children born out of wedlock have not traditional-
ly enjoyed the same legal protections as children
born in wedlock. Such children were historically re-
ferred to as ‘‘bastards’’ in a legal context. Though
many restrictions on illegitimate children have been
repealed, legitimate (or legitimated) children still
enjoy some rights that frustrate illegitimate children.
This discrepancy is particularly clear with respect to
INHERITANCE. In most states, a child born in wedlock
does not need to establish PATERNITY to recover from
the father. However, a child born out of wedlock
generally must establish paternity before he or she
can recover from the father.
Adoption
State laws have traditionally prevented unmarried
couples from adopting children. Though some states
have begun permitting unmarried couples to adopt,
these couples still face difficulties. Married couples,
on the other hand, are permitted to adopt and are
usually preferred over unmarried individuals.
Eligibility for Benefits
Recent changes of policy by insurance companies
permit unmarried couples to purchase life insurance
policies on the life of the other partner or jointly pur-
chase homeowners’ insurance on a house owned by
both partners. However, an unmarried couple will
FAMILY LAW—COHABITATION
600 GALE ENCYCLOPEDIA OF EVERYDAY LAW
often have more trouble jointly obtaining automo-
bile insurance covering an automobile owned by
both partners. Similarly, unmarried couples continue
to face serious problems with respect to health insur-
ance family coverage paid or co-paid by an employer.
A recent trend among some states, municipalities,
and private employers is to extend benefits to regis-
tered ‘‘domestic partners.’’
Recognition of Domestic Partners
Several states and municipalities have adopted a
system whereby unmarried cohabitants (heterosexu-
al or homosexual) may register as ‘‘domestic part-
ners.’’ Other states and municipalities permit domes-
tic partners to recover benefits. These classifications
provide some rights that are analogous to marital
rights, though these rights are certainly limited. The
greatest benefit in registering as domestic partners
is that each partner enjoys insurance coverage, fami-
ly leave, and retirement benefits similar to married
couples, though these rights are considerably more
restricted than rights afforded to married couples.
However, these rights are not generally recognized
outside the JURISDICTION that permits registration of
domestic partners.
Common Law Marriages
A minority of states continues to recognize
COMMON LAW, or informal, marriages. Such a marriage
requires more than mere cohabitation between a
man and a woman. The couple generally must agree
to enter into a martial arrangement, must cohabit
with one another, and must hold themselves out as
husband and wife to others. Parties that enter into
such marriages enjoy the same rights as couples mar-
ried in a formal ceremony, including rights related to
insurance and other benefits, property distribution
on DISSOLUTION of the marriage, and distribution of
property upon the death of one spouse.
Proof that the marriage exists is often the most dif-
ficult aspect of a common law marriage, and this
issue often arises after the relationship has ended ei-
ther in death or DIVORCE. For example, the question
of whether a common law marriage exists may arise
after one of the partners in a relationship dies and
the other seeks to prove that the partners were infor-
mally married to receive property through the other
partner’s estate. Similarly, when a relationship ends,
a partner may seek to prove that an informal mar-
riage exists in order to seek property distribution
under marital or community property laws.
Though a minority of states recognizes common
law marriages, all states will recognize the validity of
a common law marriage if it is recognized in the state
where the parties reside, agreed to be married, and
hold themselves out as husband and wife. Common
law marriages apply only to partners who are mem-
bers of the opposite sex.
Contracts Between Unmarried
Cohabitants
Validity
Unmarried cohabitants can provide rights to one
another that are analogous to rights granted to mar-
ried couples by entering into a contract or contracts
with one another. The validity of such agreements
was the subject of the well-publicized case of Marvin
v. Marvin in the California Supreme Court. In this
case, the court held that an express or implied agree-
ment between a couple living together outside wed-
lock to share income in consideration of companion-
ship could be legally enforceable. The majority of
states now recognizes these agreements, though
many require that the agreement be in writing. Only
a small number of recent cases have held that con-
tracts between unmarried cohabitants are unen-
forceable.
When an agreement expressly includes consider-
ation of sexual services provided by one of the par-
ties, a court is more likely to find the contract unen-
forceable. For example, if one partner agrees to
share his or her income in return for the other part-
ner’s love and companionship, a court may find that
the contract implicates meretricious sexual activity
and refuses to enforce the contract. Proving an oral
agreement or an implied contract between unmar-
ried cohabitants is also difficult, and several courts
have refused to recognize such an agreement due to
lack of proof.
Provisions of Written Cohabitation
Agreements
Written cohabitation agreements usually involve
financial and property arrangements. Parties can pro-
vide arrangements analogous to community or mari-
tal property laws or can provide other arrangements
that are more favorable to the couple. Parties should
consult with a lawyer prior to entering into such an
agreement to ensure that the provisions are enforce-
able.
FAMILY LAW—COHABITATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 601
Wills and Durable Power of Attorney for
Health Care
Nothing prevents unmarried cohabitants from
leaving estate property to the other partner upon
death in a will. Alternatively, INTESTATE SUCCESSION
laws may not provide that any of the property will
pass from one cohabitant to another, since INTESTACY
laws are limited to marital and other family relation-
ships. A fellow cohabitant might be able to get a
share of the intestate’s estate by arguing that the par-
ties entered into a financial or property-sharing ar-
rangement, though such claims are often difficult to
prove. A will is generally the best method to ensure
that a partner’s property is given to the person he or
she designates.
Another complicated situation can arise if one co-
habitant is disabled and requires a GUARDIAN. To en-
sure that one partner is named guardian or is other-
wise able to make decisions for the other partner,
the parties can prepare a document providing dura-
ble POWER OF ATTORNEY to the other partner. Under
this arrangement, the person granted durable power
of attorney could make healthcare decisions for the
disabled person. Similarly, a party can draft a LIVING
WILL (also called a healthcare directive) that dictates
the wishes of the party regarding life-prolonging
treatments.
State and Local Provisions Regarding
Cohabitation
Sixteen states recognize common law marriages,
though several of these states have repealed their
laws and only recognize these marriages entered into
prior to a certain date. Several states and municipali-
ties now recognize domestic relations rights, provid-
ing a registry, extension of benefits, or both. Unmar-
ried cohabitants should check with the state and
local laws in their jurisdictions to determine what
rights may be available to them.
ALABAMA: The state recognizes common law mar-
riages. Neither the state nor any municipality in the
state provides specific rights to domestic partners.
ALASKA: The state does not recognize common law
marriages. Neither the state nor any municipality in
the state provides specific rights to domestic part-
ners.
ARIZONA: The state does not recognize common law
marriages. The cities of Phoenix and Tucson extend
benefits to domestic partners.
ARKANSAS: The state does not recognize common
law marriages. Neither the state nor any municipality
in the state provides specific rights to domestic part-
ners.
CALIFORNIA: The state does not recognize common
law marriages. The following cities and counties ex-
tend benefits to domestic partners: Alameda County,
Berkeley, Laguna Beach, Los Angeles, Los Angeles
County, Marin County, Oakland, Petaluma, Sacra-
mento, San Diego, San Francisco, San Francisco
County, San Mateo County, Santa Cruz, Santa Cruz
County, Ventura County, West Hollywood. The fol-
lowing cities and counties offer domestic partner
registries: Arcata, Berkeley, Cathedral City, Davis, La-
guna Beach, Long Beach, Los Angeles, Los Angeles
County, Oakland, Palo Alto, Sacramento, San Francis-
co, Santa Barbara County, and West Hollywood.
COLORADO: The state recognizes common law mar-
riages. The city of Denver extends benefits to domes-
tic partners and provides a domestic partner registry.
CONNECTICUT: The state does not recognize com-
mon law marriages. The state extends benefits to do-
mestic partners. The city of Hartford extends bene-
fits to domestic partners and provides a domestic
partner registry.
DELAWARE: The state does not recognize common
law marriages. Neither the state nor any municipality
in the state provides specific rights to domestic part-
ners.
FLORIDA: The state does not recognize common law
marriages. Broward County extends benefits to do-
mestic partners and provides a domestic partner reg-
istry. The city of West Palm Beach extends benefits
to domestic partners.
GEORGIA: The state recognizes common law mar-
riages entered into before January 1, 1997. The city
of Atlanta extends benefits to domestic partners and
provides a domestic partner registry.
HAWAII: The state does not recognize common law
marriages. The state extends benefits to domestic
partners and provides a domestic partner registry.
IDAHO: The state recognizes common law marriages
enter into before January 1, 1996. Neither the state
nor any municipality in the state provides specific
rights to domestic partners.
ILLINOIS: The state does not recognize common law
marriages. The city of Chicago and Cook County ex-
FAMILY LAW—COHABITATION
602 GALE ENCYCLOPEDIA OF EVERYDAY LAW
tend benefits to domestic partners. The city of Oak
Park extends benefits to domestic partners and pro-
vides a domestic partner registry.
INDIANA: The state does not recognize common law
marriages. The city of Bloomington extends benefits
to domestic partners.
IOWA: The state recognizes common law marriages.
The city of Iowa City extends benefits to domestic
partners and provides a domestic partner registry.
KANSAS: The state recognizes common law mar-
riages. Neither the state nor any municipality in the
state provides specific rights to domestic partners.
KENTUCKY: The state does not recognize common
law marriages. Neither the state nor any municipality
in the state provides specific rights to domestic part-
ners.
LOUISIANA: The state does not recognize common
law marriages. The city of New Orleans extends ben-
efits to domestic partners.
MAINE: The state does not recognize common law
marriages. The city of Portland extends benefits to
domestic partners and provides a domestic partner
registry.
MARYLAND: The state does not recognize common
law marriages. The cities of Baltimore and Takoma
Park and Montgomery County extend benefits to do-
mestic partners.
MASSACHUSETTS: The state does not recognize
common law marriages. The following cities extend
benefits to domestic partners: Boston, Brewster,
Brookline, Nantucket, Provincetown, and Spring-
field. The following cities provide domestic partner
registries: Boston, Brewster, Brookline, Cambridge,
Nantucket, and Northampton.
MICHIGAN: The state does not recognize common
law marriages. The cities of Kalamazoo, Washtenaw
County, and Wayne County extend benefits to do-
mestic partners. The cities of Ann Arbor and East
Lansing extend benefits to domestic partners and
provide a domestic partner registry.
MINNESOTA: The state does not recognize common
law marriages. The city of Minneapolis extends bene-
fits to domestic partners and provides a domestic
partner registry.
MISSISSIPPI: The state does not recognize common
law marriages. Neither the state nor any municipality
in the state provides specific rights to domestic part-
ners.
MISSOURI: The state does not recognize common
law marriages. The city of St. Louis provides a domes-
tic partner registry.
MONTANA: The state recognizes common law mar-
riages. Neither the state nor any municipality in the
state provides specific rights to domestic partners.
NEBRASKA: The state does not recognize common
law marriages. Neither the state nor any municipality
in the state provides specific rights to domestic part-
ners.
NEVADA: The state does not recognize common law
marriages. Neither the state nor any municipality in
the state provides specific rights to domestic part-
ners.
NEW HAMPSHIRE: The state recognizes common
law marriages but only for inheritance purposes. Nei-
ther the state nor any municipality in the state pro-
vides specific rights to domestic partners.
NEW JERSEY: The state does not recognize common
law marriages. The city of Delaware extends benefits
to domestic partners.
NEW MEXICO: The state does not recognize com-
mon law marriages. The city of Albuquerque extends
benefits to domestic partners.
NEW YORK: The state does not recognize common
law marriages. The following cities and counties ex-
tend benefits to domestic partners: Brighton, East-
chester, Ithaca, New York City, Rochester, and West-
chester County. The following cities provide
domestic partner registries: Albany, Ithaca, New York
City, and Rochester.
NORTH CAROLINA: The state does not recognize
common law marriages. The city of Chapel Hill ex-
tends benefits to domestic partners and provides a
domestic partner registry. The city of Carrboro also
provides a domestic partner registry.
NORTH DAKOTA: The state does not recognize
common law marriages. Neither the state nor any
municipality in the state provides specific rights to
domestic partners.
OHIO: The state recognizes common law marriages
entered into prior to October 10, 1991. Neither the
state nor any municipality in the state provides spe-
cific rights to domestic partners.
OKLAHOMA: The state recognizes common law mar-
riages. Neither the state nor any municipality in the
state provides specific rights to domestic partners.
FAMILY LAW—COHABITATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 603
OREGON: The state does not recognize common law
marriages. The state extends benefits to domestic
partners. The city of Portland and Multnomah Coun-
ty extend benefits to domestic partners. The city of
Ashland provides a domestic partner registry.
PENNSYLVANIA: The state recognizes common law
marriages. The city of Philadelphia extends benefits
to domestic partners.
RHODE ISLAND: The state recognizes common law
marriages. Neither the state nor any municipality in
the state provides specific rights to domestic part-
ners.
SOUTH CAROLINA: The state recognizes common
law marriages. Neither the state nor any municipality
in the state provides specific rights to domestic part-
ners.
TENNESSEE: The state does not recognize common
law marriages. Neither the state nor any municipality
in the state provides specific rights to domestic part-
ners.
TEXAS: The state recognizes common law marriages.
Travis County extends benefits to domestic partners.
UTAH: The state recognizes common law marriages.
Neither the state nor any municipality in the state
provides specific rights to domestic partners.
VERMONT: The state is the first to recognize ‘‘civil
unions,’’ which extends rights to homosexual part-
ners that are similar to rights granted to married cou-
ples. The state also extends benefits to domestic
partners. The state does not recognize common law
marriages.
VIRGINIA: The state does not recognize common
law marriages. Arlington County extends benefits to
domestic partners.
WASHINGTON: The state does not recognize com-
mon law marriages. The state extends benefits to do-
mestic partners. The cities of Olympia and Tumwater
and King County extend benefits to domestic part-
ners. The city of Lacey provides a domestic partner
registry. The city of Seattle extends benefits to do-
mestic partners and provides a domestic partner reg-
istry.
WEST VIRGINIA: The state does not recognize com-
mon law marriages. Neither the state nor any munici-
pality in the state provides specific rights to domestic
partners.
WISCONSIN: The state does not recognize common
law marriages. The city of Madison extends benefits
to domestic partners and provides a domestic part-
ner registry. The city of Sherwood Hills Village and
Dane County extend benefits to domestic relations.
The city of Milwaukee provides a domestic partner
registry.
WYOMING: The state does not recognize common
law marriages. Neither the state nor any municipality
in the state provides specific rights to domestic part-
ners.
Additional Resources
Cohabitation: Law, Practice, and Precedent, Second Edi-
tion. Wood, Helen, Denzil Lush, and David Bishop,
2001.
Family Law in a Nutshell. Krause, Harry D., West Publish-
ing, 1995.
The Living Together Kit: A Legal Guide to Unmarried Cou-
ples, Ninth Edition. Ihara, Toni, Ralph Warner and Fred-
erick Hertz, Nolo Press, 1999.
Understanding Family Law, Second Edition. DeWitt,
John, Gregory, Peter N. Swisher, and Sheryl L. Wolf,
LexisNexis, 2001.
Unmarried Couples and the Law. Douthwaite, Graham,
Allen Smith Company, 1979.
Organizations
Alternatives to Marriage Project
P.O. Box 991010
Boston, MA 02199 USA
Phone: (781) 793-0296
Fax: (781) 394-6625
URL: http://www.unmarried.org/
E-Mail: atmp@unmarried.org
American Association for Single People
(AASP)
415 E. Harvard Street
Suite 204
Glendale, CA 91205 USA
Phone: (818) 242-5100
URL: http://www.singlesrights.com
E-Mail: unmarried@earthlink.net
Primary Contact: Thomas F. Coleman, Executive
Director
Focus on the Family
Colorado Springs, CO 80995 USA
Phone: (719) 531-3328
Fax: (719) 531-3424
URL: http://www.family.org/
FAMILY LAW—COHABITATION
604 GALE ENCYCLOPEDIA OF EVERYDAY LAW
Lambda Legal Defense and Education Fund
120 Wall Street, Suite 1500
New York, NY 10005-3904 USA
Phone: (212) 809-8585
Fax: (212) 809-0055
URL: http://www.lambdalegal.org
FAMILY LAW—COHABITATION
GALE ENCYCLOPEDIA OF EVERYDAY LAW 605
This Page Intentionally Left Blank
FAMILY LAW
DIVORCE/SEPARATION/ANNULMENT
Sections within this essay:
• Background
• No-fault Divorce
• Legal Separation
• Annulment
• Property Distribution
- Equitable Distribution
- Community Property
- Military Pay
• Spousal Support
• Temporary Orders
• Court Process
• Insurance
• Divorce From Parents (Emancipation)
• State Laws
• Additional Resources
Background
In primitive civilizations marriage and marriage
DISSOLUTION were considered private matters which
did not require involvement of any authority above
the individuals in the relationship. The Romans first
placed marriage and DIVORCE under state regulation
during the reign of Augustus. When Christianity
spread about 300 A.D., governments came under re-
ligious control. The Catholic Church did not permit
divorce unless one of the parties had not been con-
verted to Christianity prior to marriage, which then
made the marriage null and void.
During the early 1500s, the Protestant Reforma-
tion began a slow movement in Europe to separate
the laws governing marriage from the precinct of the
Roman Catholic Church. Henry VIII wanted the Cath-
olic Church to grant him a divorce from Catherine of
Aragon because all the male offspring she bore died
shortly after birth, and Henry believed he could se-
cure a male HEIR by marrying another woman. When
Pope Clement VII refused, Henry took control of
Church properties in England and made himself
head of the Anglican Church. This separation from
the Vatican made divorce possible in England by an
act of Parliament. Still, divorce remained rare; when
it occurred it was a costly legislative process and
could only be initiated by husbands. The resistance
toward and rarity of divorce continued well into the
nineteenth century..
Divorce law in the American colonies was some-
what influenced by the British, but more so by the
colonists themselves. England did not want its Amer-
ican colonies to enact any type of law, which conflict-
ed with English law. Thus, a colonial divorce was not
considered final until the English monarch had ap-
proved it. Nevertheless, several colonies adopted
their own laws permitting divorce, often under odd
circumstances. Under one late seventeenth century
Pennsylvania law if a married man committed
SODOMY or bestiality, his punishment was castration,
after which the wife was permitted to divorce him.
In Connecticut divorce was allowed on the grounds
of ADULTERY, desertion, and the husband’s failure in
his CONJUGAL duties. In Massachusetts, divorce was
permitted if one of the parties committed adultery.
The U. S. Constitution left divorce regulation to
the states. State legislatures passed laws that granted
GALE ENCYCLOPEDIA OF EVERYDAY LAW 607
divorce based on a showing of fault. If a divorce was
contested, the divorcing spouse was required to es-
tablish, before a court, specific grounds for the ac-
tion. If the court felt that the divorcing spouse had
not sufficiently proven the grounds alleged, the peti-
tion for divorce could be denied and the case dis-
missed.
The most common traditional grounds for divorce
were cruelty, desertion, and adultery. Other grounds
included nonsupport or neglect, alcoholism or other
drug addiction, insanity, criminal CONVICTION, and
voluntary separation. In 1933, New Mexico became
the first state to allow divorce on the ground of in-
compatibility. In 1969 California completely revised
its divorce laws, providing that a filing party merely
show IRRECONCILABLE DIFFERENCES resulting in an ir-
remediable breakdown of the marriage. California’s
was the first comprehensive ‘‘no-fault’’ divorce law,
and it inspired nationwide divorce law reform. In
1970 the National Conference of Commissioners on
Uniform State Laws prepared a Uniform Marriage
and Divorce Act, which provides for no-fault divorce
if a court finds that the marriage is ‘‘irretrievably bro-
ken.’’ Many states adopted the act. By 1980, nearly
every state legislature had enacted laws allowing no-
fault divorces or divorces after a specified period of
separation. Some states replaced all traditional
grounds with a single no-fault provision. Other states
added the ground of irreconcilable differences to ex-
isting statutes. In those states a divorce petitioner re-
mains free to file for divorce under traditional
grounds.
No-fault Divorce
By 1987, all fifty states had adopted no-fault di-
vorce laws, exclusively or as an option to traditional
fault-grounded divorce. Despite the obvious advan-
tages, no-fault divorce laws sometimes leave parties
with no real remedy for harmful acts of a spouse.
Most states have laws that prevent one spouse from
suing the other. Fault has survived in some aspects
of divorce proceedings. Under current theories, mar-
ital misconduct is irrelevant to the divorce itself, but
it may be relevant to related matters such as CHILD
CUSTODY, CHILD SUPPORT, and child visitation rights,
spousal maintenance, and property distribution.
Legal Separation
Legal separation is similar to a divorce in that pa-
pers are filed, there is often a CUSTODY or PROPERTY
SETTLEMENT ordered by the court, but the parties re-
main married. There may be benefits to this type of
arrangement, but they are few. In most states, it is
difficult to convert a legal separation into a divorce,
and it requires beginning the process over with the
filing of a divorce petition.
Annulment
ANNULMENT is a legal process in which a court es-
sentially determines the parties were never legally
married to begin with and the marriage is null and
void. Annulments are not often granted, but grounds
for doing so include if one party is incapable of con-
sent, due to mental state or INTOXICATION, FRAUD
about some aspect of the marriage, or a failure to
CONSUMMATE the marriage. Annulments are regulated
by state law.
Property Distribution
Property distribution includes issues of real es-
tate, PERSONAL PROPERTY, cash savings, stocks, BONDS,
savings plans, and retirement benefits. The statutes
that govern property division vary by state, but they
can generally be grouped into two types: equitable
distribution and COMMUNITY PROPERTY.
Equitable Distribution
Most states follow the equitable distribution
method. Generally, this method provides that courts
divide assets in a fair and equitable manner. Some
equitable distribution states look to the conduct of
the parties and permit findings of marital fault to af-
fect property distribution. In others only fault relat-
ing to economic welfare is relevant in property distri-
bution. Yet other states entirely exclude marital
misconduct from consideration in DISPOSITION prop-
erty. Equitable distribution rules give the court con-
siderable discretion in which to divide property be-
tween the parties. The courts consider the joint
assets held by the parties and separate assets that the
parties either brought with them into the marriage
or inherited or received as gifts during the marriage.
Generally, if the separate property is kept separate
during the marriage and not commingled with joint
assets, then the court will recognize that it belongs
separately to the individual spouse and will not di-
vide it along with the marital assets.
Equitable distribution states consider contribu-
tions (often including homemaker contributions) by
each spouse made to the marriage. If one party made
FAMILY LAW—DIVORCE/SEPARATION/ANNULMENT
608 GALE ENCYCLOPEDIA OF EVERYDAY LAW
a greater contribution, the court may grant that per-
son more of the joint assets. Some states do not con-
sider a professional degree earned by one spouse
during the marriage to be a joint asset but do ac-
knowledge any financial support contributed by the
other spouse and let that be reflected in the property
distribution. Other states do consider a professional
degree or license to be a joint marital asset and have
devised various ways to distribute it or its benefits.
Community Property
States that follow community property laws pro-
vide that nearly all the property acquired during the
marriage belongs to the marital ‘‘community,’’ such
that the husband and wife each have a one-half inter-
est in it upon death or divorce. It is presumed that
all property acquired during the marriage by either
spouse, including EARNED INCOME, belongs to the
community. Property obtained by gift or through
INHERITANCE is considered separate, unless it is com-
ingled with community property. Upon divorce each
party gets all separate property, as well as one-half of
the community property.
Military Pay
In 1982 Congress passed a law, the Uniformed
Services Former Parties’ Protection Act, that permits
state courts to treat military retired pay as property.
In community property states and many other states,
a formula is used when the member has already re-
tired. But for an active duty member, there may be
no state law that specifies how the award is to be cal-
culated.
Spousal Support
ALIMONY, or spousal maintenance, is the financial
support that one spouse provides to the other after
divorce. It is separate from, and in addition to, the
division of marital property. It can be either tempo-
rary or permanent. Factors relevant to an order of
maintenance include the age and marketable skills of
the intended recipient, the length of the marriage,
and the income of both parties. Maintenance is most
often used to provide support to a spouse who was
financially dependent on the other during the mar-
riage. Many states allow courts to consider marital
fault in determining whether, and how much, main-
tenance should be granted.
Temporary Orders
Between the time a dissolution action is filed and
the time a judgment of dissolution becomes effec-
tive, the court may use temporary orders to resolve
any issue in the case, including temporary support
and temporary allocation of assets. Temporary or-
ders address the immediate concerns of the parties,
but also frequently form the basis for the permanent
orders later in the final DECREE.
Court Process
JURISDICTION over a divorce case is usually deter-
mined by residency. That is, a divorcing spouse is re-
quired to bring the divorce action in the state where
she or he maintains a permanent home. States are
obligated to acknowledge a divorce obtained in an-
other state. This rule is from the Full Faith and Credit
Clause of the U.S. Constitution, which requires states
to recognize the valid laws and court orders of other
states. Under the Due Process Clause of the Four-
teenth Amendment to the U.S. Constitution, a state
must make divorce available to everyone. If a party
seeking divorce cannot afford the court expenses, fil-
ing fees, and costs attached to the serving or publica-
tion of legal papers, the party may file for divorce free
of charge. Typically, in a divorce proceeding or disso-
lution action the parties are referred to as the ‘‘peti-
tioner,’’ and the ‘‘respondent.’’ The petitioner is the
spouse who initiates the dissolution proceeding. The
other spouse is the respondent. A dissolution action
begins with one spouse filing a document known as
a petition or complaint. The other spouse must then
be served with these papers and has a specific time
frame in which to respond. The ultimate goal of any
dissolution action is to obtain a decree or judgment.
The decree will resolve every issue in the case, in-
cluding child support and visitation, division of as-
sets and debts, and spousal support.
There are basically three methods for securing a
divorce decree. If the respondent is properly served,
but never files a response, the petitioner can request
that the court order the divorce by DEFAULT. Also, the
couple may agree on all the issues in the case and ob-
tain a decree by SETTLEMENT, stipulation, or agree-
ment. If the parties cannot agree, the case can be de-
cided by a judge after a trial.
Insurance
Insurance is considered a form of property in a di-
vorce. The owner of the insurance policy controls
the policy and has the right to name the beneficia-
ries. Although some laws prohibit the changing of in-
surance policies while a divorce is pending, once a
FAMILY LAW—DIVORCE/SEPARATION/ANNULMENT
GALE ENCYCLOPEDIA OF EVERYDAY LAW 609
divorce is final, insurance can become an important
issue. Divorce is a qualifying event for benefits under
Consolidated Omnibus Budget Reconciliation Act of
1985 (COBRA). Under this act, any person who
would lose employer-based coverage because of di-
vorce can choose to purchase continued coverage
for up to 36 months. The act applies to employers
with 20 or more employees, but the coverage is not
automatic. The spouse seeking coverage must con-
tact the employer within 60 days of the qualifying
event and complete the necessary paperwork. Some
decrees include a provision for life insurance on the
provider, to protect the support order.
Divorce From Parents (Emancipation)
One method children can use to ‘‘divorce’’ their
parents is to become emancipated. The word ‘‘eman-
cipation’’ means to become free from the control or
restraint of another. In the context of emancipated
minors, EMANCIPATION is a legal procedure whereby
children become legally responsible for themselves
and their parents are no longer responsible. Emanci-
pated children are freed from parental custody and
control and are adults for most legal purposes. Par-
ents of a child have not only responsibility for the
child but also legal control over any money the child
may earn. Many famous child performers and ath-
letes have sued their parents, often claiming that
money earning by the child star was mismanaged,
seeking to have the courts declare the child an adult.
In fact, it is possible for a child or a teenager to seek
legal emancipation and be declared an adult before
age 18, although the process can be difficult. In order
to become emancipated, a minor must convince a
judge he or she has a place to live and sufficient
money and income to be self-supporting. But since
minors are not permitted to sign legally binding con-
tracts such as rental agreements, proving such self-
sufficiency can be difficult. Emancipation does not
require any proof of abuse or neglect by the parents.
It can be granted for educational purposes, if a teen-
ager is starting college early and wants to rent an
apartment. Many young actors and musicians who
are not fighting with their parents over money seek
emancipation in order to avoid strict CHILD LABOR
LAWS. Emancipation laws vary from state to state.
Some states have no age restrictions, while others set
the age from 14 to 17. Some states also require pa-
rental consent or ACQUIESCENCE, which may be dem-
onstrated by CIRCUMSTANTIAL EVIDENCE. Emancipa-
tion is typically automatic when a teenager marries
or joins the military; however, emancipation does
not override age restrictions for getting married.
Some states require the emancipated teen to under-
go counseling with an appointed advisor.
An emancipated minor is entitled to make almost
all medical, dental, and psychiatric care decisions,
enter into a contract, sue and be sued, make a will,
buy or sell property, and apply for a work permit
without parental consent. The emancipated minor is
obligated to self-support but must also follow state
laws regarding such requirements as compulsory
school attendance. Federal age rules relating to ac-
tions such as selective service registration, and vot-
ing rights do not change simply because a minor is
emancipated.
State Laws
State law varies considerably with respect to di-
vorce. States have various residency requirements,
property rules, and spousal support provisions. In
the United States, each state regulates its own do-
mestic relations. Most courts ignore marital fault in
determining whether to grant a divorce, but many
still consider fault in setting future obligations be-
tween the parties. To determine the rights and obli-
gations of the parties in a dissolution proceeding,
one must consult the divorce laws for the state in
which the divorce was filed.
ALABAMA: The party filing for divorce must have re-
sided in the State for at least six months before filing
for divorce. At a minimum, Alabama law has a 30-day
waiting period before a divorce can be granted.
ALASKA: No period of residence is required. After fil-
ing of complaint, however, 30 days must elapse be-
fore divorce action may be heard. A divorce may be
granted for any of the following grounds: failure to
consummate the marriage at the time of the mar-
riage and continuing at the commencement of the
action; adultery; conviction of a FELONY; willful deser-
tion for a period of one year; cruel and inhuman
treatment calculated to impair health or endanger
life; personal indignities rendering life burdensome;
incompatibility of temperament; HABITUAL gross
DRUNKENNESS contracted since marriage and continu-
ing for one year prior to the commencement of the
action; incurable mental illness when the spouse has
been confined to an institution for a period of at least
18 months immediately preceding the commence-
ment of the action; addiction of either party, subse-
quent to the marriage, to the habitual use of opium,
morphine, cocaine, or a similar drug. Parties may
FAMILY LAW—DIVORCE/SEPARATION/ANNULMENT
610 GALE ENCYCLOPEDIA OF EVERYDAY LAW
jointly petition for dissolution of marriage on ground
of incompatibility of temperament causing an irre-
mediable breakdown of the marriage, so long as they
have agreed to property distribution, support, custo-
dy, and visitation. Alaska’s equitable distribution
STATUTE establishes a three-tier version of the dual
classification model. Property acquired during the
marriage, except for gifts and inheritance, is classi-
fied as marital property, and it is divided equitably
upon divorce. Property acquired before the marriage
is not marital property but can be divided upon di-
vorce if ‘‘the balancing of the equities between the
parties requires it.’’ The court may allow an amount
of money for spousal support, for either a limited
time or an indefinite time, in gross or in installments,
without regard to fault.
ARIZONA: One party must be domiciled in the state
for 90 days prior to the filing of the action. Arizona
requires only that the filing party ALLEGE irretrievable
breakdown of the marriage. Arizona is a community
property state. Property held in common must be di-
vided equitably without regard to marital conduct.
The court may consider excessive or abnormal ex-
penditures, destruction, concealment, or FRAUD-
ULENT disposition of community, joint TENANCY, and
other property held in common in dividing the prop-
erty. Spousal support may be granted to either
spouse if the spouse seeking such spousal is unable,
through appropriate employment, to provide self-
support or is the custodian of a child at home. Sup-
port can also be awarded if a spouse contributed to
the educational opportunities of the other spouse or
had a long marriage and is of an age that may pre-
clude employment. If spousal support is awarded it
is without regard to marital fault. Factors the court
will consider include: the couple’s standard of living
during marriage; the duration of the marriage; the
age, employment history, earning ability, physical
and emotional condition of the recipient spouse; fi-
nancial resources and earning abilities of parties; any
reduced income or career opportunities; and exces-
sive or abnormal expenditures, destruction, conceal-
ment or fraudulent disposition of community assets.
ARKANSAS: Presence is required in the state by one
party for 60 days before commencement of the ac-
tion, plus another 30 days before the final decree
may be entered. Grounds for divorce in Arkansas in-
clude voluntary separation without COHABITATION for
18 months; impotency; felony conviction; habitual
drunkenness for one year; cruel and barbarous treat-
ment; indignities to the person; adultery; three year
separation by reason of confinement for incurable in-
sanity; willful nonsupport. Marital property is divided
equally between the parties unless the court finds
that equal division is inequitable. The only usual as-
pect of Arkansas equitable distribution law is its treat-
ment of property held as tenants by the entireties,
which is divided by legal title. Spousal support may
be awarded to either party in fixed installments for
a specific period of time.
CALIFORNIA: Either party must be a resident of the
state for six months, and a resident of the county for
three months. A filing party need only allege irrecon-
cilable differences or incurable insanity. California is
a community property state. Community property is
property acquired by either party during the mar-
riage in any type of joint form. Unless the parties oth-
erwise agree, the court divides the community prop-
erty estate equally. The court may award spousal
support in an amount, and for a period of time, that
the court determines is just and reasonable, based
upon the standard of living established during the
marriage. In awarding spousal support, there is a
goal that the supported spouse be self-supporting
within a reasonable period of time. The court retains
jurisdiction to modify spousal support in all cases of
marriages over ten years unless the parties otherwise
agree. There is a presumption for spousal support
decreases on the recipient’s cohabitation.
COLORADO: Either party must be domiciled in the
state for 90 days before commencement of the pro-
ceeding. A filing party need only allege irretrievable
breakdown of the marriage. Colorado adopts the tra-
ditional dual classification of property under Uni-
form Marriage and Divorce Act. Separate property,
defined as property owned before the marriage and
property acquired by gift, inheritance, is retained by
the owning party. Marital property includes property
that is not separate property, property acquired dur-
ing the marriage, including the increase in value of
separate property. The court divides the marital
property as it deems just, without regard to marital
fault, considering the contributions of each spouse
to the acquisition of the marital property, the value
of each party’s separate property, the economic cir-
cumstances of the parties, depletion of separate
property for marital purposes. The court may order
spousal support if a spouse lacks sufficient property
to provide for his/her reasonable needs, is unable to
support him/herself through appropriate employ-
ment, or is the custodian of a child whose age or con-
dition makes it inappropriate for the spouse to seek
employment outside the home.
FAMILY LAW—DIVORCE/SEPARATION/ANNULMENT
GALE ENCYCLOPEDIA OF EVERYDAY LAW 611
CONNECTICUT: There is no residence requirement
for filing; however, the Decree of Divorce can only
be entered after one party has been a resident for a
year. The party filing may allege irretrievable break-
down of the marriage or that the parties have lived
apart for 18 months due to incompatibility, with no
reasonable prospect of reconciliation. Adultery,
fraudulent contract, desertion for one year, seven
years’ absence, habitual intemperance, intolerable
cruelty, or sentencing to IMPRISONMENT for life or the
commission of any infamous crime involving a viola-
tion of conjugal duty and punishable by imprison-
ment for over one year are also valid grounds. The
court values and distributes all property and awards
spousal support by considering the causes of the dis-
solution, the length of the marriage, the age, health,
station, occupation, amount and sources of income,
vocational skills, employability, estate, liabilities,
needs of each party, opportunity for future acquisi-
tion of capital assets and income, contribution of
each party to the marital and separate estates.
DISTRICT OF COLUMBIA: The party filing must live
in the jurisdiction for six months. The parties must
have mutually and voluntarily lived separate and
apart without cohabitation for a period of six
months, or the parties have lived separate and apart
for one year. Factors for equitable division of proper-
ty include length of the marriage, and the age,
health, and occupation of parties. The court takes
into consideration the value of homemaker services.
The court may grant spousal support and may decree
that a party retains dower rights in the other’s estate.
FLORIDA: One party must live in the state for six
months prior to the commencement of the action.
The filing party need only allege irretrievable break-
down of the marriage or spousal mental incapacity
for three years. If there are minor children, or if a
claim of irretrievable breakdown is denied the court
may order counseling, continue the proceedings for
three months, or take such other action as may be
in the best interests of the parties and children of the
marriage. Florida follows an equitable distribution of
property policy, based on dual classification of prop-
erty into separate and marital estates. In distributing
the marital estate, the court presumes a 50/50 divi-
sion, but that may be altered by factors including the
contribution to the marriage by each spouse, includ-
ing homemaker services, the economic circum-
stances of the parties, the duration of the marriage,
any interruption in career or educational opportuni-
ties, the contribution of each spouse to the acquisi-
tion, enhancement, and production of income or
marital assets, and any action during the pending di-
vorce proceedings which depletes marital assets.
The court may grant spousal support to either party,
which may be permanent or rehabilitative in nature.
The court may order periodic payments or payments
in lump sum, or both. The court may consider the
adultery of each spouse. The court considers the
standard of living established during the marriage,
the duration of the marriage, the age and health of
the parties, the financial resources of the parties, the
time necessary to become fully employed, and the
contribution of the parties to the marriage.
GEORGIA: One spouse must have resided in Georgia
for six months prior to filing. Grounds include irre-
trievable breakdown; mental incapacity or impoten-
cy at the time of the marriage; fraud in obtaining the
marriage; adultery; desertion for one year; convic-
tion of an offense involving moral turpitude and im-
prisonment for two or more years; habitual intoxica-
tion or other drug addiction; cruel treatment;
incurable mental illness. A dual classification system
was adopted, with separate property comprising
property acquired before marriage, property ac-
quired by gift, and property acquired by inheritance.
Temporary or permanent spousal support may be
granted, except in cases of adultery and desertion.
The court may consider the conduct of the parties
toward one another, in addition to needs and ability
to pay, in deciding whether to award spousal sup-
port. If spousal support is to be awarded, the court
considers, in deciding the amount, the standard of
living established during the marriage, duration of
the marriage, age and physical and emotional condi-
tion of the parties; contributions to the marriage,
and financial condition of the parties.
HAWAII: The filing party must have lived in Hawaii
for six months prior to filing. The filing party need
only allege irretrievable breakdown or the marriage
or that the parties have lived separate and apart for
more than two years. Hawaii law provides for equita-
ble distribution of all property, whether community,
joint, or separate. The court considers the condition
in which each party will be left by the divorce, the
burdens imposed upon either party for the benefit
of the children of the parties, and all other circum-
stances of the case. The court may award indefinite
or rehabilitative periodic spousal support. The court
considers the respective merits of the parties, the
usual occupation of the parties during the marriage,
and the vocational skills and employability of the
party seeking support and spousal support.
FAMILY LAW—DIVORCE/SEPARATION/ANNULMENT
612 GALE ENCYCLOPEDIA OF EVERYDAY LAW
ILLINOIS: The filing party must have lived in the state
for 90 days prior to filing. The filing party need only
allege irreconcilable differences causing the irretriev-
able breakdown of the marriage. Fault grounds are
impotency, BIGAMY, adultery, desertion for one year,
habitual drunkenness or other drug addiction for
two years, an attempt to take the life of the other,
physical or mental cruelty, conviction of a felony or
other infamous crime, or infecting the other with a
sexually transmitted disease. Illinois law provides for
equitable distribution of marital property upon di-
vorce, without regard to marital misconduct, based
on dual classification of property. Marital property is
all property acquired during the marriage, except
property acquired by gift, BEQUEST, devise, or de-
scent, and property acquired before the marriage.
The court may award rehabilitative, periodic, or per-
manent spousal support, without regard to marital
misconduct. Spousal support terminates on cohabi-
tation.
INDIANA: The party filing must live in the state for
six months and for three months in the county
where the petition is filed. The party filing need only
allege irretrievable breakdown of the marriage. Fault
grounds include conviction of a felony, impotency
existing at the time of the marriage, and incurable in-
sanity for three years. Division of property carries a
presumption that equal division is just and reason-
able. The presumption may be overcome by suffi-
cient proof. Rehabilitative spousal support may be
granted for a maximum of three years. The court may
order permanent periodic spousal support if a
spouse is physically or mentally incapacitated or
where a spouse lacks sufficient property and is the
custodial parent of a child whose incapacity requires
the GUARDIAN to forego employment.
IOWA: The complainant must live in the jurisdiction
one year. Divorce may be granted upon breakdown
of the marriage relationship to the extent that the le-
gitimate objects of matrimony have been destroyed
and there remains no reasonable likelihood that the
marriage can be saved. Marital property is property
acquired during the marriage except that acquired by
gift or bequest. The court may grant limited or indefi-
nite spousal support.
KENTUCKY: The filing party must reside in the state
for 180 days prior to filing. The filing party need only
allege irretrievable breakdown of marriage. The de-
cree cannot be entered until the parties have lived
separate and apart for at least 60 days. Kentucky fol-
lows an equitable division of property theory, based
on dual classification of property found in the Uni-
form Marriage and Divorce Act. Property is divided
without regard to marital misconduct. Spousal sup-
port may be rehabilitative, periodic, or lump sum.
The court may order spousal support only if it finds
that the spouse seeking spousal support lacks suffi-
cient property, is unable to be self supporting, or is
the custodian or a child whose age or condition
makes it appropriate that the custodian not seek em-
ployment outside the home.
LOUISIANA: Six months residence is required of the
filing party. Except in the case of a covenant mar-
riage, divorce shall be granted upon motion of either
spouse upon proof of 180 days’ lapse since service
or petition and separation of 180 days before filing
of motion. Louisiana is a community property state.
Community assets and liabilities are divided so that
each spouse receives property of equal value. The
court may award final periodic support, up to 1/3 of
the obligor’s NET income, to a party free from fault
based on the needs of that party and the ability of the
other to pay.
MARYLAND: Maryland requires residence or one
year residence if the cause of action for divorce oc-
curred outside the state. Marital property is defined
as property acquired during the marriage. This in-
cludes pensions and profit sharing plans. In dividing
the marital property, the court considers: contribu-
tions, monetary and non-monetary, of each party to
the well-being of the family; the value of the property
interest of each party; the economic circumstances
of the parties at the time the award is made; the cir-
cumstances that contributed to the estrangement of
the parties; the duration of the marriage; the age of
each party; the physical and mental condition of
each party; how and when specific marital property
or interest in a PENSION, retirement, profit sharing, or
deferred compensation plan was acquired; contribu-
tion of non-marital property to entireties property;
any spousal support award; any other factor deemed
necessary. The court may award rehabilitative or in-
definite spousal support, periodic or lump sum. In-
definite spousal support, however is awardable only
if the requesting spouse cannot reasonably be ex-
pected to make substantial progress toward becom-
ing self-sufficient or the parties’ respective standards
of living would be unconscionably disparate.
MAINE: The filing party must live in the jurisdiction
for six months prior to filing. Marital property is de-
fined as all property acquired by either spouse dur-
ing the marriage, except property acquired by gift,
FAMILY LAW—DIVORCE/SEPARATION/ANNULMENT
GALE ENCYCLOPEDIA OF EVERYDAY LAW 613
bequest, devise or descent; property acquired in ex-
change for pre-marital property or in exchange for
property acquired by gift, bequest, devise or descent;
property acquired after decree of legal separation;
property excluded by valid agreement of the parties;
increase in value of property acquired prior to the
marriage. The court divides the marital property
after considering the contribution of reach spouse to
the acquisition of marital property, including home-
maker efforts; the value of each spouse’s separate
property; the economic circumstances of each
spouse. The court may award periodic or lump sum
spousal support. The court may also award non-
modifiable spousal support.
MASSACHUSETTS: Either party can be a resident if
the cause of action occurred within the state. Other-
wise, there is a one-year residency requirement.
Fault grounds include: adultery; impotency; deser-
tion for one year; confirmed habits of intoxication
cause by the use of alcohol or other drugs; cruel and
abusive treatment; refusal to provide suitable spou-
sal support. The parties also have the option of filing
affidavits that the marriage is irretrievably broken,
and can then, within 90 days, file a separation agree-
ment. Parties may also file a complaint alleging irre-
trievable breakdown without a separation agree-
ment, and the court may order the divorce after six
months have elapsed. The court may assign to either
the husband or the wife part of the estate of the
other. The court may award periodic or lump sum
spousal support. Factors in awarding spousal sup-
port include: homemaker’s contributions; the em-
ployability of each party; the needs of each party; the
opportunity for the future acquisition of capital as-
sets and income.
MICHIGAN: Immediately prior to filing for divorce,
one of the parties must have been a resident for 180
days and a resident of the county where the divorce
is filed for 10 days. The filing party need only allege
breakdown of the marriage relationship to the extent
that the objects of matrimony have been destroyed
and there remains no reasonable likelihood that the
marriage can be preserved. The court can award one
spouse any property owned by the other party if it
appears from the EVIDENCE in the case that the party
contributed to the acquisition, improvement, or ac-
cumulation of the property. Either spouse may be or-
dered to pay spousal support ‘‘in gross’’ or other-
wise. Factors to be considered include the ability of
either spouse to pay and the respective circum-
stances of the parties.
MINNESOTA: One of the parties must have been a
resident for 180 days immediately before the petition
for divorce is filed. The petition may be filed in a
county where either spouse resides. The filing party
need allege irrevocable breakdown of the marriage
relationship demonstrated by living separate and
apart for 180 days or serious marital discord adverse-
ly affecting the attitude of one or both parties. In di-
viding marital property, the court considers the con-
tribution of each spouse to the acquisition of the
property, including homemaker contributions; the
economic circumstances of the parties; the length of
the marriage; the age and health of the parties; the
occupation of the parties; the amount and sources
of income of the parties; the vocational skills of the
parties; the employability of each spouse; the liabili-
ties and needs of the parties, and the opportunity for
further acquisition of capital assets; any prior mar-
riage of each spouse; any other factor necessary to
achieve equity and justice between the parties. The
court may order temporary or permanent spousal
support, without regard to marital fault, after the
consideration of eleven factors, including need, the
ability to become employed, the standard of living
during the marriage, the duration of the marriage,
loss of earnings, age and condition of both parties.
MISSISSIPPI: One of the parties must have been a
resident for at least six months prior to filing and not
have secured residency solely for the purpose of pro-
curing a divorce. Special venue provisions based on
whether the divorce is no-fault or fault-based. Irrec-
oncilable differences are sufficient for divorce. Other
grounds include: impotence; adultery; imprison-
ment; alcoholism and/or other drug addiction; con-
finement for incurable insanity for at least three years
before the divorce is filed; the wife was pregnant by
another man at the time of the marriage without hus-
band’s knowledge; willful desertion for at least one
year; cruel and inhumane treatment; spouse lacked
mental capacity at time of marriage; INCEST; biga-
mous marriage. Mississippi is an equitable distribu-
tion dual classification state. Either spouse may be
awarded spousal support if it is equitable.
MISSOURI: One of the parties must be a resident of
Missouri for 90 days before filing. The dissolution pe-
tition must be filed in the county where the plaintiff
resides. There is a 30-day waiting period after filing
before the dissolution will be granted. Irretrievable
breakdown of marriage is sufficient for divorce. Mis-
souri adopted the Uniform Marriage and Divorce Act.
The court may award rehabilitative, periodic, or
lump sum spousal support. The spousal support
FAMILY LAW—DIVORCE/SEPARATION/ANNULMENT
614 GALE ENCYCLOPEDIA OF EVERYDAY LAW
shall be in such amounts and for such periods of time
as the court deems just.
MONTANA: One of the parties must be a resident of
Montana for 90 days immediately prior to filing. The
dissolution of marriage petition must be filed in the
county where the petitioner has been a resident for
the previous 90 days. The party must allege irretriev-
able breakdown of marriage, supported by evidence
that the parties have lived separate and apart for 180
days. Montana adopted the all-property provisions of
the Uniform Marriage and Divorce Act. The court
may divide, without regard to marital misconduct,
the property of the parties and assets belonging to
either or both. Either spouse may be awarded spou-
sal support. The award is made without regard to
marital fault.
NEBRASKA: One of the parties must have been a resi-
dent for at least one year, or the marriage must have
been performed in Nebraska and one of the parties
lived in Nebraska for the entire marriage. The disso-
lution may be filed in a county where either spouse
lives. There is a 30-day waiting period after service of
the petition before the court can decide the case. Ir-
retrievable breakdown of marriage or lack of mental
capacity at time of marriage is sufficient to obtain a
divorce. The parties keep any separate property ac-
quired before the marriage. All marital property,
which includes gifts and inheritances acquired dur-
ing the marriage, may be divided. Either spouse may
be ordered to pay reasonable spousal support, with-
out regard to marital fault.
NEVADA: One of the parties must have lived in Neva-
da for at least six weeks prior to filing to divorce. The
filing party need only allege. Nevada is a community
property state. The court can make an unequal dis-
position of community property if the court finds a
compelling reason to do so. The court may award
such spousal support to the husband or the wife in
specified principal sum or a specified period of pay-
ments.
NEW HAMPSHIRE: Both parties must be residents of
the state when the divorce is filed, or the spouse fil-
ing for divorce must have been a resident of New
Hampshire for one year immediately prior to the fil-
ing of the divorce and the other spouse was person-
ally served with process in New Hampshire, or the
cause of divorce must have arisen in New Hampshire
and one of the parties must be living in New Hamp-
shire when the divorce is filed for. Irreconcilable dif-
ferences, which have caused irremediable break-
down of the marriage, are sufficient grounds for
divorce. The court may award spousal support to ei-
ther party in need, either temporary or permanent,
for a definite or indefinite period of time.
NEW MEXICO: One of the parties must have been a
resident of New Mexico for at least six months imme-
diately preceding the filing and have a home in New
Mexico. Incompatibility because of discord and con-
flicts of personalities such that the legitimate ends of
the marriage relationship have been destroyed, pre-
venting any reasonable expectation of reconciliation
is JUST CAUSE. New Mexico is a community property
state. Each spouse retains his/her separate property
acquired before the marriage. Separate property
comprises property designated as such by written
agreement, gifts, or inheritances. Community prop-
erty shall be divided equally between the parties.
‘‘Quasi-community property,’’ defined as property
acquired outside New Mexico, which would be com-
munity property if acquired in New Mexico, is also be
divided equally. Either spouse may be awarded a just
and proper amount of spousal support, without re-
gard to marital fault. Factors considered include: du-
ration of the marriage, parties’ current and future
earning capacities, GOOD FAITH efforts to maintain
employment or become self-supporting, needs and
obligations of each spouse, age and health of each
spouse, amount of property each spouse owns, stan-
dard of living during the marriage, medical and life
insurance maintained during the marriage, assets of
the parties, each spouse’s liabilities, and any marital
settlement agreements.
NEW JERSEY: One party must be a resident of New
Jersey for at least one year prior to the filing for di-
vorce, unless the cause of divorce is adultery and
took place in New Jersey, in which case one of the
spouses must be a resident at the time of filing. Liv-
ing separate and apart for 18 months and no reason-
able prospect of reconciliation is sufficient to obtain
a no-fault divorce in New Jersey. Marital property is
property legally and beneficially acquired during the
marriage, except for property acquired by gift, de-
vise, interstate SUCCESSION, except that gifts between
spouses are considered marital property. Either
party may be awarded spousal support without re-
gard to marital fault. Spousal support may be perma-
nent or rehabilitative.
NEW YORK: If both spouses resided in New York at
the time of the filing of the divorce and the grounds
for divorce arose in New York, there is no residency
requirement. No-fault divorce is obtainable by living
separate and apart. Fault grounds include: adultery;
FAMILY LAW—DIVORCE/SEPARATION/ANNULMENT
GALE ENCYCLOPEDIA OF EVERYDAY LAW 615
ABANDONMENT for one year; imprisonment for three
or more consecutive years; and cruel and inhuman
treatment. Separate property comprises property ac-
quired before the marriage, gifts, inheritances, in-
crease in value of separate property, and property ac-
quired in exchange for separate property. Marital
property is property acquired during the marriage
and not separate property. Marital property is divid-
ed based on factors including custodial provisions,
dissipation, and contributions as spouse, parent,
wage earner, and homemaker. Either spouse may be
awarded maintenance without regard to marital
fault.
NORTH CAROLINA: Either spouse must have been
a resident of North Carolina for at least six months
prior to filing for divorce. Living separate and apart
without cohabitation for one year is sufficient
grounds to obtain a no-fault divorce. Separate prop-
erty comprises any property acquired before the
marriage, gifts and inheritances, property acquired in
exchange for separate property, increase in value of
separate property, expectation of a non-vested pen-
sion, retirement, or other deferred compensation
rights. Marital property is property acquired during
the marriage. Either spouse may be awarded spousal
support. The amount, duration, and manner of pay-
ment is in the court’s discretion; however, an award
of spousal support is barred by ‘‘illicit sexual behav-
ior.’’
OHIO: The spouse filing the divorce must have been
a resident of Ohio for at least six months and a resi-
dent of the county for at least 90 days immediately
prior to filing incompatibility is sufficient to obtain a
divorce. Divorce may be obtained by filing a separa-
tion agreement, according to specific procedures.
Each party retains separate property, defined as gifts,
inheritances, property acquired prior to the mar-
riage, income or APPRECIATION of separate property,
individual proceeds from PERSONAL INJURY awards.
Marital fault and spousal support are not to be con-
sidered in the division of property. Either spouse
may be awarded reasonable spousal support, in real
property or personal property, or both, or by decree-
ing a sum of money, payable either in gross or by in-
stallments, from future income or otherwise. Marital
fault is not a consideration.
OKLAHOMA: Either party must have been a resident
of Oklahoma for six months immediately prior to fil-
ing for divorce. Incompatibility is sufficient to obtain
a divorce. Each spouse keeps separate property, de-
fined as property owned prior to the marriage, gifts,
and inheritances. All property held or acquired joint-
ly during the marriage is divided between the
spouses in a just and equitable manner. Marital fault
is not a factor. Spousal support may be awarded to
either spouse, in money or property, in lump sum or
installments, having regard for the value of the prop-
erty at the time of the award. Marital fault is not a
consideration.
OREGON: If the marriage was not performed in Ore-
gon, one spouse must have been a resident for six
months immediately prior to filing. If the marriage
was performed in Oregon and either spouse is a resi-
dent of Oregon, there is no residency requirement.
Irreconcilable differences between the spouses that
have caused the irretrievable breakdown of the mar-
riage is the only grounds on which to obtain a di-
vorce. Fault is abolished completely. Regardless of
whether the property is held jointly or individually,
there is a presumption that the spouses contributed
equally to the acquisition of the property, unless
proven otherwise. Either spouse may be required to
make allowances for support of the other for his or
her life or for a shorter period, having regard to the
circumstances of the parties respectively.
PENNSYLVANIA: Either spouse must have been a res-
ident for at least six months before filing. Pennsylva-
nia’s no-fault provisions require ALLEGATION of an ir-
retrievable breakdown of the marriage with the
spouses living separate and apart without cohabita-
tion for two years. The couple can also file alleging
irretrievable breakdown of the marriage with affida-
vits from both spouses that they consent to the di-
vorce. The divorce can then be granted after 90 days.
Separate and apart is defined as no cohabitation but
is not precluded by living in the same residence. The
parties retain their separate property, defined as
property acquired before marriage, acquired in ex-
change for separate property, gifts and inheritances,
and property designated separate by valid agree-
ment. All other property is marital and is divided by
the court equitably between the parties. A court may
allow alimony to either party only if it finds that ali-
mony is necessary. Pennsylvania has statewide spou-
sal support guidelines that are presumed to be cor-
rect unless there is a showing that the amount would
be unjust or inappropriate under the circumstances
of the case.
RHODE ISLAND: Either spouse must have been a
resident for one year prior to filing. Irreconcilable dif-
ferences, which have caused the irremediable break-
down of the marriage, are sufficient grounds to ob-
FAMILY LAW—DIVORCE/SEPARATION/ANNULMENT
616 GALE ENCYCLOPEDIA OF EVERYDAY LAW
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