West''''s encyclopedia of American law 2ND EDITION Volume 8 doc

Other guards, such as campus police officers, are given specific authority to serve as peace officers by state law.. Private guards and police person-nel now outnumber the total number o

2 ND EDITION

❚ 1 ❚ Article Title

❚ 2 ❚ Definition in italics with Latin

translation provided

❚ 3 ❚ First-level subhead

❚ 4 ❚ Timeline for subject of biography,

including general historical events

and life events

❚ 5 ❚ Sidebar expands upon an issue

addressed briefly in the article

❚ 6 ❚ Quotation from subject of biography

❚ 7 ❚ Biography of contributor to

American law

❚ 8 ❚ Internal cross-reference to entry

within WEAL

❚ 9 ❚ In Focus article examines a

controversial or complex aspect

of the article topic

❚10 ❚ Cross-references at end of article

❚11❚ Full cite for case

❚ 1 ❚ Article Title

❚ 2 ❚ Definition in italics with Latin

translation provided

❚ 3 ❚ First-level subhead

❚ 4 ❚ Timeline for subject of biography,

including general historical events

and life events

❚ 5 ❚ Sidebar expands upon an issue

addressed briefly in the article

❚ 6 ❚ Quotation from subject of biography

❚ 7 ❚ Biography of contributor to

American law

❚ 8 ❚ Internal cross-reference to entry

within WEAL

❚ 9 ❚ In Focus article examines a

controversial or complex aspect

of the article topic

❚10 ❚ Cross-references at end of article

❚11❚ Full cite for case

2ND EDITION

Volume 8

Po to San

West’s Encyclopedia of American Law, 2nd Edition

Project Editors

Jeffrey Lehman

Shirelle Phelps

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Library of Congress Cataloging-in-Publication Data

West’s encyclopedia of American law / Jeffrey Lehman, editor, Shirelle Phelps, editor.— 2nd ed.

p cm.

Includes bibliographical references and index.

ISBN 0-7876-6367-0 (hardcover set : alk paper)

1 Law—United States—Encyclopedias 2 Law—United States—Popular works I Lehman, Jeffrey II Phelps, Shirelle.

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k

VOLUME 1

Preface ix

Contributors xiii

A–Ba 1

Abbreviations 507

VOLUME 2 Preface ix

Contributors xiii

Be–Col 1

Abbreviations 511

VOLUME 3 Preface ix

Contributors xiii

Com–Dor 1

Abbreviations 509

VOLUME 4 Preface ix

Contributors xiii

Dou–Fre 1

Abbreviations 509

VOLUME 5 Preface ix

Contributors xiii

Fri–Jam 1

Abbreviations 501

VOLUME 6 Preface ix

Contributors xiii

Jap–Ma 1

Abbreviations 469

VOLUME 7 Preface ix

Contributors xiii

Mc–Pl 1

Abbreviations 467

VOLUME 8 Preface ix

Contributors xiii

Po–San 1

Abbreviations 461

VOLUME 9 Preface ix

Contributors xiii

Sar–Ten 1

Abbreviations 465

VOLUME 10 Preface ix

Contributors xiii

Ter–Z 1

Abbreviations 459

VOLUME 11 Milestones in the Law

VOLUME 12 Primary Documents

VOLUME 13 Dictionary of Legal Terms Cases Index

General Index

Contents

The U.S legal system is admired aroundthe world for the freedoms it allows the

individual and the fairness with which it

attempts to treat all persons On the surface, it

may seem simple, yet those who have delved

into it know that this system of federal and

state constitutions, statutes, regulations, and

common-law decisions is elaborate and

com-plex It derives from the English common law,

but includes principles older than England,

along with some principles from other lands

The U.S legal system, like many others, has a

language all its own, but too often it is an

unfa-miliar language: many concepts are still

phrased in Latin The second edition of West’s

Encyclopedia of American Law (WEAL) explains

legal terms and concepts in everyday language,

however It covers a wide variety of persons,

entities, and events that have shaped the U.S

legal system and influenced public perceptions

movements, cases, and persons significant to

U.S law Entries on legal terms contain a

defini-tion of the term, followed by explanatory text if

necessary Entries are arranged alphabetically in

standard encyclopedia format for ease of use A

wide variety of additional features, listed later in

this preface, provide interesting background and

supplemental information

Definitions Every entry on a legal term is

followed by a definition, which appears at thebeginning of the entry and is italicized The Dic-tionary and Indexes volume includes a glossary

containing all the definitions from WEAL.

Further Readings To facilitate further

research, a list of Further Readings is included atthe end of a majority of the main entries

Cross-References WEAL provides two types

of cross-references, within and following entries

Within the entries, terms are set in small capitalletters—for example, LIEN—to indicate thatthey have their own entry in the encyclopedia

At the end of the entries, related entries thereader may wish to explore are listed alphabeti-cally by title

Blind cross-reference entries are alsoincluded to direct the user to other entriesthroughout the set

In Focus Essays

In Focus essays accompany related entriesand provide additional facts, details, and argu-ments on particularly interesting, important, orcontroversial issues raised by those entries Thesubjects covered include hotly contested issues,such as abortion, capital punishment, and gayrights; detailed processes, such as the Food andDrug Administration’s approval process for newdrugs; and important historical or social issues,such as debates over the formation of the U.S

complement regular entries and In Focus essays

by adding informative details Sidebar topicsinclude the Million Man March and the branches

of the U.S armed services Sidebars appear at thetop of a text page and are set in a box

Biographies

WEAL profiles a wide variety of interesting

and influential people—including lawyers,judges, government and civic leaders, and his-torical and modern figures—who have played apart in creating or shaping U.S law Each biog-raphy includes a timeline, which shows impor-tant moments in the subject’s life as well asimportant historical events of the period

Biographies appear alphabetically by the ject’s last name

sub-ADDITIONAL FEATURES OF THIS SET

Enhancements Throughout WEAL, readers

will find a broad array of photographs, charts,graphs, manuscripts, legal forms, and othervisual aids enhancing the ideas presented in thetext

Indexes WEAL features a cases index and a

cumulative index in a separate volume

Appendixes

Three appendix volumes are included with

WEAL, containing hundreds of pages of

docu-ments, laws, manuscripts, and forms tal to and characteristic of U.S law

fundamen-Milestone Cases in the Law

A special Appendix volume entitled stones in the Law, allows readers to take a closelook at landmark cases in U.S law Readers canexplore the reasoning of the judges and thearguments of the attorneys that produced majordecisions on important legal and social issues.Included in each Milestone are the opinions ofthe lower courts; the briefs presented by the par-ties to the U.S Supreme Court; and the decision

Mile-of the Supreme Court, including the majorityopinion and all concurring and dissenting opin-ions for each case

Primary Documents

There is also an Appendix volume ing more than 60 primary documents, such asthe English Bill of Rights, Martin Luther KingJr.’s Letter from Brimingham Jail, and severalpresidential speeches

contain-Citations

Wherever possible, WEAL entries include

citations for cases and statutes mentioned in thetext These allow readers wishing to do addi-tional research to find the opinions and statutescited Two sample citations, with explanations ofcommon citation terms, can be seen below andopposite

1 Case title The title of the case is set in i and

indicates the names of the parties The suit

in this sample citation was between Ernesto

A Miranda and the state of Arizona

2 Reporter volume number The number

pre-ceding the reporter name indicates thereporter volume containing the case (Thevolume number appears on the spine of thereporter, along with the reporter name)

3 Reporter name The reporter name is

abbrevi-ated The suit in the sample citation is from

the reporter, or series of books, called U.S.

Reports, which contains cases from the U.S.

Supreme Court (Numerous reporters lish cases from the federal and state courts.)

pub-4 Reporter page The number following the

reporter name indicates the reporter page onwhich the case begins

5 Additional reporter page Many cases may be

found in more than one reporter The suit inthe sample citation also appears in volume

86 of the Supreme Court Reporter, beginning

on page 1602

6 Additional reporter citation The suit in the

sample citation is also reported in volume 16

of the Lawyer’s Edition, second series,

begin-ning on page 694

7 Year of decision The year the court issued its

decision in the case appears in parentheses atthe end of the cite

Miranda v Arizona, 384 U.S 436, 86 S.Ct 1602, 16 L.Ed 2d 694 (1966)

1 Statute title.

2 Public law number In the sample citation,

the number 103 indicates this law waspassed by the 103d Congress, and the num-ber 159 indicates it was the 159th law passed

by that Congress

3 Reporter volume number The number

pre-ceding the reporter abbreviation indicatesthe reporter volume containing the statute

4 Reporter name The reporter name is

abbre-viated The statute in the sample citation is

from Statutes at Large.

5 Reporter page The number following the

reporter abbreviation indicates the reporterpage on which the statute begins

6 Title number Federal laws are divided into

major sections with specific titles The ber preceding a reference to the U.S Codestands for the section called Crimes andCriminal Procedure

num-7 Additional reporter The statute in the ple citation may also be found in the U.S.

sam-Code Annotated.

8 Section numbers The section numbers lowing a reference to the U.S Code Anno- tated indicate where the statute appears in

fol-that reporter

PREFACE XI

Brady Handgun Violence Prevention Act, Pub L No 103–159, 107 Stat 1536 (18 U.S.C.A §§ 921–925A)

Lynne CristPaul D DaggettSusan L DalhedLisa M DelFiaccoSuzanne Paul Dell’OroDan DeVoe

Joanne EngelkingSharon FischlowitzJonathan FlandersLisa FloreyRobert A FrameJohn E GisselquistRussell L Gray IIIFrederick K GrittnerVictoria L HandlerHeidi L HeadleeJames HeidbergClifford P HookerMarianne Ashley JerpbakAndrew Kass

Margaret Anderson KelliherChristopher J KennedyAnne E KevlinAnn T LaughlinLaura Ledsworth-WangLinda Lincoln

Gregory LuceDavid LuikenJennifer MarshSandra M OlsonAnne Larsen OlstadWilliam OstremLauren PacelliRandolph C ParkGary PeterMichele A PottsReinhard PriesterChristy RainBrian RobertsDebra J RosenthalMary Lahr SchierMary ScarbroughTheresa L SchulzJohn ScobeyJames SlavicekScott D SlickDavid StromWendy TienDouglas TuetingRichard F TysonChristine Ver PloegGeorge E WarnerAnne WelsbacherEric P WindLindy T Yokanovich

Contributors

The illegal shooting, trapping, or taking of game or

fish from private or public property.

The poaching of game and fish was made acrime in England in the seventeenth century, as

aristocratic landowners sought to preserve their

shooting and property rights Poor peasants did

most of the poaching to supplement their diets

with meat and fish

In the United States, poaching was not sidered a serious problem meriting legal meas-

con-ures before the twentieth century, because vast

expanses of undeveloped land contained

abun-dant sources of fish and game The increased

cul-tivation of land and the growth of towns and

cities reduced wildlife habitats in the twentieth

century In the early 1900s, the U.S conservation

movement arose with an emphasis on preserving

wildlife and managing the fish and game

popula-tions Wildlife preserves and state and national

parks were created as havens for wild animals,

many of which were threatened with extinction

Because of these changing circumstances,restrictions were placed on hunting and fish-

ing State game and fish laws now require

per-sons to purchase licenses to hunt and fish The

terms of these licenses limit the kind and

num-ber of animals or fish that may be taken and

restrict hunting and fishing to designated times

of the year, popularly referred to as hunting

and fishing seasons

Therefore, persons who fail to purchase alicense, as well as those who violate the terms of

their licenses, commit acts of poaching Mostpoaching in the United States is done for sport

or commercial profit Rare and endangeredspecies, which are protected by state and federallaw, are often the targets of poachers

Poaching laws are enforced by game dens, who patrol state and national parks andrespond to violations on private property.Poachers are subject to criminal laws, rangingfrom misdemeanors to felonies Penalties mayinclude steep fines, jail sentences, the FORFEI- TURE of any poached game or fish, the loss ofhunting and fishing license privileges for severalyears, and the forfeiture of hunting or fishingequipment, boats, and vehicles used in thepoaching

A pocket part is located inside the back cover

of the book A legal researcher should alwaysconsult it to ensure that the most current law isexamined

POINT

A distinct proposition or QUESTION OF LAW ing or propounded in a case In the case of shares

of stock, a point means $1 In the case of bonds a point means $10, since a bond is quoted as a per- centage of $1,000 In the case of market averages, the word point means merely that and no more If, for example, the Dow-Jones Industrial Average rises from 8,349.25 to 8,350.25, it has risen a point A point in this average, however, is not equivalent to $1.

With respect to the home mortgage finance industry, a fee or charge of one percent of the prin- cipal of the loan that is collected by the lender at the time the loan is made and is in addition to the constant long-term stated interest rate on the face

of the loan.

POISON

Any substance dangerous to living organisms that

if applied internally or externally, destroy the action of vital functions or prevent the CONTINU- ANCEof life.

Economic poisons are those substances that are used to control insects, weeds, fungi, bacteria, rodents, predatory animals, or other pests Eco- nomic poisons are useful to society but are still dangerous.

The way a poison is controlled depends onits potential for harm, its usefulness, and the rea-sons for its use The law has a right and a dutypursuant to the POLICE POWERof a state to con-trol substances that can do great harm

In the past, an individual who was harmed

by a poison that had been handled in a carelessmanner could institute a lawsuit for damagesagainst the person who had mishandled thechemical As time went on, state statutes pre-scribed the circumstances under which someonewas legally liable for injuries caused by a poison

For example, a sale to anyone under sixteenyears of age was unlawful, and a seller wasrequired to ensure that the buyer understoodthat the chemical was poisonous It was notunusual for all poisons, drugs, and narcotics to

be covered by the same statutory scheme

Specialized statutes currently regulate sons Pesticides must be registered with the fed-eral government, and those denied registrationcannot be used The ENVIRONMENTAL PROTEC- TION AGENCY(EPA) has issued a number of reg-ulations governing the use of approvedpesticides Federal law also prohibits unautho-rized adulteration of any product with a poison-ous substance and requires clear labeling foranything sold with a poisonous ingredient It

poi-might not be sufficient to list all the chemicals in

a container or even to put the word POISON onthe label The manufacturer should also warn ofthe injuries that are likely to occur and the con-ditions under which the poison will cause harm.Stricter standards are applied to householdproducts than to poisonous products intended

to be used in a factory, on a farm, or by a cially trained person Poisonous food productsare banned Under other federal regulations,pesticide residues on foods are prohibited abovecertain low tolerance levels

spe-Certain provisions under federal law seek toprotect children from poisoning Special pack-aging is required for some household products

so that a child will not mistake them for food orwill not be able to open containers Federalfunds are available for local programs to reduce

or eliminate the danger of poisoning from based paint Under the Hazardous SubstancesAct (15 U.S.C.A § 1261 et seq.), toys containingpoisonous substances can be banned or sub-jected to recall

lead-POISON PILL

A defensive strategy based on issuing special stock that is used to deter aggressors in corporate takeover attempts.

The poison pill is a defensive strategy usedagainst corporate takeovers Popularly known ascorporate raiding, takeovers are hostile mergersintended to acquire a corporation A takeoverbegins when a so-called aggressor tries to buysufficient stock in another corporation, known

as the target, to seize control of it Target rations use a wide range of legal options to detertakeovers, among which is the poison pill: achange in the company’s stock plan or financialcondition that is intended to make the corpora-tion unattractive to the buyer Despite its fanci-ful name, the poison pill does not destroy thetarget company It is intended to affect theaggressor, which will be burdened with costs if itsucceeds in its takeover The strategy was widelyadopted in the 1980s

corpo-The poison pill is unique among takeover strategies At the simplest level,takeovers are about buying stock Corporateraiders offer shareholders an inflated price fortheir shares They try to buy the company formore than its stock is worth Although this ideaseems paradoxical, raiders can reap profits fromtheir overpriced acquisition by selling off its

divisions and assets Some anti-takeover

strate-gies try to deter the aggressor by selling off prize

assets first, making a counter offer to

sharehold-ers, or stipulating that the current executives will

receive huge payoffs after a takeover when they

are fired These strategies can injure the

com-pany or simply benefit executives But the

poi-son pill involves a kind of doomsday scenario

for the aggressor If the takeover is successful, it

will end up paying enormous dividends to the

company’s current stockholders

Essential to the use of such a strategy is that

it is first established in the corporation’s charter

Among other details, these charters specify

shareholders’ rights They specify that

compa-nies can issue preferred stock—shares that give

special dividends, or payments—to their

hold-ers When a takeover bid begins, the company’s

board of directors issues this preferred stock to

its current shareholders The stock is essentially

worthless and is intended to scare away the

aggressor If the takeover succeeds, the stock

becomes quite valuable It can then be redeemed

for a very good price or it can be converted into

stock of the new controlling company—namely,

the aggressor’s Both scenarios leave the

aggres-sor with the choice of either buying the stock at

a high price or paying huge dividends on it This

is the pill’s poison

Poison pill defenses are popular but what controversial The majority of large U.S

some-companies had adopted them by the 1990s Part

of this popularity comes from their effectiveness

in delaying a corporate takeover, during which

time a target company may marshal other

defenses as well Another reason is that courts

have upheld their legality One of the first

important cases in this area reached the

Delaware courts in 1985 (Moran v Household

International, Inc., 500 A.2d 1346) However,

some critics have argued that the strategy gives

company directors power at the expense of

shareholders They maintain that it can limit

shareholders’ wealth by thwarting potentially

beneficial takeovers and allowing bad corporate

managers to entrench themselves In the 1990s

such arguments spurred some investors to

attempt to repeal poison pill provisions in

cor-porate charters

FURTHER READINGS

Animashaun, Babatunde M 1991 “Poison Pill: Corporate

Antitakeover Defensive Plan and the Directors’

Respon-sibilities in Responding to Takeover Bids.” Southern

University Law Review 18 (fall).

Hancock, William A ed 2000 Special Study for Corporate

Counsel on Poison Pills Chesterland, Ohio: Business

Laws, Inc., Wingerson, Mark R., and Christopher H Dorn 1992 “Insti- tutional Investors in the U.S and the Repeal of Poison

Pills: A Practitioner’s Perspective.” Columbia Business

gov-The police force as we know it came intobeing in England in the 1820s when Sir RobertPeel established London’s first municipal force

Before that, policing had either been done byvolunteers or by soldiers Police officers in thetwenty-first century have technological advan-tages at their disposal to help them solve crimes,but most rely primarily on training and instinct

to do their work

In the United States, policing was originallydone by the “watch system” in which local citi-zens would go on patrol and look for criminalactivity As cities grew, so did the amount ofcrime, and it became impossible to control itthrough volunteers In the mid-1840s, New YorkCity established the first paid professional policeforce in the United States By the end of thenineteenth century, major cities across thenation had their own police forces Regionalpolice organizations were also established Fed-eral policing agencies such as the U.S ParkPolice (who patrolled national parks), the PostalInspectors (who helped ensure safe mail deliv-ery) and the Border Patrol (which kept criminalsfrom sneaking into or out of the country) wereintroduced In 1905, Pennsylvania establishedthe nation’s first state police; other states quicklyfollowed suit

During the first decades of the twentiethcentury, police forces were established in smallermunicipalities, and police officers took a moreactive role in fighting crime and protecting citi-zens The widespread introduction of tele-phones and automobiles made it easier forpolice to respond quickly to emergencies

Over the ensuing years, many of the niques and tools commonly associated withpolice work—mug shots, fingerprint analysis,centralized records, crime labs—were intro-duced and constantly improved Although the

tech-POLICE 3

scenarios commonly created by television policeshows are exaggerations of how much technol-ogy can actually do, such innovations as DNAtesting have made it easier for the police to pos-itively identify criminals.

The average duties of the modern policeofficer can vary widely from community tocommunity In a large city whose police forcehas dozens of divisions and neighborhoodprecincts, an officer’s duties may be quite spe-cialized In a small town with a police force ofonly a few people, each officer will likely have toknow how to do several jobs to be able to fill infor their colleagues as needed

The duties of a police officer on the NewYork City police force provide an example ofwhat the police do New York officers areexpected to patrol their assigned area, either bycar or on foot They apprehend criminals orcrime suspects, stop crimes in progress, andassist people who are in trouble (such as com-plainants in domestic disputes or emotionallydisturbed homeless individuals) They investi-gate crimes and crime scenes, collect evidence,and interview victims and witnesses They helpfind missing persons and handle cases of alleged

CHILD ABUSE They help identify and recoverstolen property, and they testify in court as nec-essary They also keep detailed records of theiractivity by filing reports and filling out variousforms

Police officers are expected to be in goodphysical condition They may have to run after asuspect, carry injured individuals, subdue sus-pects (who may be armed or physically strong),and carry heavy equipment They may haveperiods of extreme physical activity, followed byhours of no activity at all (perhaps just sitting in

a patrol car for several hours) They must also bementally alert and emotionally able to withstandthe strain of their work Although officers inlarge cities or dangerous neighborhoods mayhave a statistically higher chance of beinginjured on killed on the job, all police officersknow that life-and-death situations can happenanywhere

Not accidentally, police departments, cially those in large cities, are compared to mili-tary institutions In fact, the police and themilitary have a number of goals in common,including discipline, endurance, teamwork, andclearly established procedures for all operations

espe-Even the ranks given police officers are similar tothose in the military

Not surprisingly, police officers are required

to undergo often rigorous training before beingsworn in The movement for formalized trainingbegan early in the twentieth century AugustVollmer, chief of police in Berkeley, California,from 1905 to 1932, believed that police officersneeded professional training at the college level

He helped found a police training academy atthe University of California’s Berkeley campus,and Berkeley later established the nation’s firstcollege-level CRIMINOLOGY department Today,many COLLEGES AND UNIVERSITIEShave crimi-nology departments and offer degrees in criminaljustice Many police departments will providetuition reimbursement or scholarships to officerswho want to continue their education after theyhave joined the force Some officers get their lawdegrees; others get advanced degrees in criminol-ogy and become college instructors

One of the major goals of many policedepartments is getting cooperation from withinthe community Many officers receive training incommunications, and most police departmentshave public affairs divisions that provide infor-mation for citizens who wish to organize neigh-borhood watch programs or who want to getinformation on avoiding crime Some policedepartments, for example, have increased theirfoot patrols, believing that the officer “walkingthe beat” makes people feel safer and also buildsrapport with local individuals Police also workwith each other as well as with other lawenforcement agencies State, county, and localpolice will often come together to solve a crimethat falls within their jurisdiction Agencies such

as the FEDERAL BUREAU OF INVESTIGATION, the

SECRET SERVICE, the Coast Guard, and othersalso work with the police to help solve crimes.The emergence of computerized records anddatabases make it easy for police organizationsacross the country and even overseas toexchange information about suspects and crim-inals In emergency situations (fires, explosions,

or natural disasters), police officers work in dem with fire fighters, medical professionals, oremergency service workers

tan-FURTHER READINGS

Bittner, Egon 1990 Aspects of Police Work Boston:

North-eastern Univ Press.

Das, Dilip K., and Arvind Verma 2000 Police Mission:

Chal-lenges and Responses Lanham, Md.: Scarecrow Press.

Kelling, George L., and Catherine Coles 1996 Fixing Broken

Windows: Restoring Order and Reducing Crime in Our Communities New York: Free Press.

Wadman, Robert C 2004 To Protect and to Serve: A History

of Police in America Upper Saddle River, N.J.: Prentice

Hall.

CROSS-REFERENCES

Federal Bureau of Investigation; Police Power.

POLICE AND GUARDS, PRIVATE

The use of private security guards and police by

such entities as businesses and school campuses

to protect their property, employees, and

stu-dents has grown rapidly since the early 1980s

The authority of these guards, sometimes

known disparagingly as “rent-a-cops,” depends

upon the employer and the type of security

involved Some guards are considered private

employees of security firms and possess no more

authority than an ordinary citizen Other

guards, such as campus police officers, are given

specific authority to serve as peace officers by

state law

Private investigation firms predate the mation of the United States During the nine-

for-teenth century and early part of the twentieth

century, these firms often were employed by

private companies for such purposes as

break-ing strikes, infiltratbreak-ing LAB OR UNIONS, and

investigating robberies and other crimes By the

1930s, however, the industry was in decline, and

from the 1930s to the 1970s, public law

enforce-ment officers were more prevalent than private

guards

By the early 1980s, the private security try began to expand, and by the early 1990s, it

indus-was one of the largest growing industries in the

United States Private guards and police

person-nel now outnumber the total number of federal,

state, and local law enforcement officers

com-bined Moreover, an estimated 150,000 regular

police officers moonlight as private security

guards Some municipal police departments

sup-ply regular police officers to businesses and

pri-vate individuals, and then pay the officers from

the proceeds of the arrangement

One of the most ubiquitous private securityofficers is the campus or university police offi-

cer Institutions of higher education are

gener-ally under a duty to provide reasonable security

measures to protect their students Many states

designate these private officers with powers and

authority similar or analogous to regular police

officers, particularly at state institutions, but

also at some larger private institutions Some

campus police departments also make

arrange-ments with local police departarrange-ments to ate in investigating campus crimes Under theStudent Right-to-Know and Campus SecurityAct, Pub L No 101-542, 104 Stat 2381, all COL- LEGES AND UNIVERSITIES that receive federalfinancial assistance are required to publish anddistribute campus security policies and crimestatistics to current students, employees, and thesecretary of education

cooper-In California, for example, the Regents of theUniversity of California and the Trustees of theCalifornia State University and Colleges mayemploy one or more campus police officers toserve as peace officers (Cal Educ Code

§§ 89560, 92601) These officers may only cise their duties within one mile of the exteriorboundaries of each campus, although Californiacourts have held that officers may, in some cir-cumstances, extend beyond these boundaries to

exer-fulfill their duties (Baughman v State of nia, 45 Cal Rptr 82 [Cal App 1995]) In order

Califor-to qualify Califor-to become a peace officer, a candidatemust be 18 years old, demonstrate good moralcharacter based upon an investigation, and befree from any physical, emotional, or mentalcondition that might adversely affect the per-formance of his or her duties

Some plaintiffs have sought to hold campuspolice officers liable for the officers’ actionsunder a variety of legal theories For instance, in

DeSanto v Youngstown State University, 2002

WL 31966960 (Oh Ct Cl 2002), campus policewere given the responsibility to provide securityfor a dance, including checking identification ofthe participants and requiring non-students tosign a log Two individuals became involved in afight, requiring the intervention of the officers

Although one of the two participants threatened

to kill the other, the officers did not arrest theman who uttered the threats Thirty minuteslater, another individual killed the man againstwhom the threats were made The family of thevictim claimed that the officers were negligentfor failing to arrest the man who made thethreats In addition, a plaintiff ’s expert witnesstestified that had the officer arrested the manwho made the threats, the victim would nothave been killed Nevertheless, the court foundthat the theory was speculative and held in favor

of the officers

The application of the constitutional sions governing CRIMINAL PRO CEDURE hascome into question in a number of cases involv-ing security guards If a security guard or officer

provi-POLICE AND GUARDS, PRIVATE 5

is a purely private officer, constitutional sions generally do not apply These privateguards usually are limited by other state crimi-nal and TORT LAWS, such as ASSAULT,BATTERY,

provi-TRESPASS, and FALSE IMPRISONMENT On theother hand, if the security guard or officer isdeemed a state actor, then the constitutionalprovisions, such as the Fourth Amendment’sprohibition against unreasonable SEARCHES AND SEIZURES, applies Some states, includingGeorgia and South Carolina, have deputizedsecurity guards with much of the same author-ity as regular police officers Other states, such asArizona, have expressly provided that securityguards do not have the same authority as regu-lar police officers

In Washington v Heritage, 61 P.3d 1190

(Wash App 2002), a juvenile was convicted ofpossession of marijuana after she was searched

by city park security guards The juvenile court

in the case found that the guards were privateguards, so constitutional rules of criminal pro-cedure did not apply However, the Washingtoncourt of appeals determined that these guardswere indeed state actors because they wereemployed by the city government Accordingly,the guards were required to comply with consti-tutional requirements, including giving the sus-

pects Miranda warnings.

FURTHER READINGS

Button, Mark 2002 Private Policing Portland, Or.: Willan

Pub.

Sklansky, David A 1999 “Criminal Procedure and the Private

Police.” Search and Seizure Law Report 26 (September).

——— 1999 “The Private Police.” UCLA Law Review 46

(April).

CROSS-REFERENCES

Colleges and Universities; Police Power.

POLICE CORRUPTION AND MISCONDUCT

The violation of state and federal laws or the lation of individuals’ constitutional rights by police officers; also when police commit crimes for personal gain.

vio-Police misconduct and corruption are abuses

of police authority Sometimes used changeably, the terms refer to a wide range ofprocedural, criminal, and civil violations Mis-conduct is the broadest category Misconduct is

inter-“procedural” when it refers to police who violatepolice department rules and regulations; “crim-inal” when it refers to police who violate state

and federal laws; “unconstitutional” when itrefers to police who violate a citizen’s CIVIL RIGHTS; or any combination thereof Commonforms of misconduct are excessive use of physi-cal or DEADLY FORCE, discriminatory arrest,physical or verbal harassment, and selectiveenforcement of the law

Police corruption is the abuse of policeauthority for personal gain Corruption mayinvolve profit or another type of material bene-fit gained illegally as a consequence of the offi-cer’s authority Typical forms of corruptioninclude BRIBERY,EXTORTION, receiving or fenc-ing stolen goods, and selling drugs The termalso refers to patterns of misconduct within agiven police department or special unit, particu-larly where offenses are repeated with the acqui-escence of superiors or through other ongoingfailure to correct them

Safeguards against police misconduct existthroughout the law Police departments them-selves establish codes of conduct, train newrecruits, and investigate and discipline officers,sometimes in cooperation with civilian com-plaint review boards which are intended to pro-vide independent evaluative and remedialadvice Protections are also found in state law,which permits victims to sue police for damages

in civil actions Typically, these actions arebrought for claims such as the use of excessiveforce (“police brutality”), false arrest andimprisonment, MALICIOUS PROSECUTION, and

WRONGFUL DEATH State actions may bebrought simultaneously with additional claimsfor constitutional violations

Through both criminal and civil statutes,federal law specifically targets police miscon-duct Federal law is applicable to all state,county, and local officers, including those whowork in correctional facilities The key federalcriminal statute makes it unlawful for anyoneacting with police authority to deprive or con-spire to deprive another person of any right pro-tected by the Constitution or laws of the UnitedStates (Section 18 U.S.C § 241 [2000]) Anotherstatute, commonly referred to as the police mis-conduct provision, makes it unlawful for state orlocal police to engage in a pattern or practice ofconduct that deprives persons of their rights (42U.S.C.A 14141 [2000])

Additionally, federal law prohibits nation in police work Any police departmentreceiving federal funding is covered by Title VI

discrimi-of the Civil Rights Act discrimi-of 1964 (42 U.S.C

§ 2000d) and the Office of Justice Programs

statute (42 U.S.C § 3789d[c]), which prohibit

discrimination on the basis of race, color,

national origin, sex, and religion These laws

prohibit conduct ranging from racial slurs and

unjustified arrests to the refusal of departments

to respond to discrimination complaints

Because neither the federal criminal statutenor the civil police misconduct provision pro-

vides for lawsuits by individuals, only the federal

government may bring suit under these laws

Enforcement is the responsibility of the JUSTICE

DEPARTMENT Criminal convictions are

punish-able by fines and imprisonment Civil

convic-tions are remedied through injunctive relief, a

type of court order that requires a change in

behavior; typically, resolutions in such cases

force police departments to stop abusive

prac-tices, institute types of reform, or submit to

court supervision

Private litigation against police officers ordepartments is difficult Besides time and

expense, a significant hurdle to success is found

in the legal protections that police enjoy Since

the late twentieth century, many court decisions

have expanded the powers of police to perform

routine stops and searches Plaintiffs generally

must prove willful or unlawful conduct on the

part of police; showing mere NEGLIGENCE or

other failure of due care by police officers often

does not suffice in court

Most problematically of all for plaintiffs,police are protected by the defense of immu-

nity—an exemption from penalties and burdens

that the law generally places on other citizens

This IMMUNITY is limited, unlike the absolute

immunity enjoyed by judges or legislators In

theory, the defense allows police to do their job

without fear ofREPRISAL In practice, however,

it has become increasingly difficult for

individu-als to sue law enforcement officers for damages

for allegedly violating their civil rights U.S

Supreme Court decisions have continually

asserted the general rule that officers must be

given the benefit of the doubt that they acted

lawfully in carrying out their day-to-day duties,

a position reasserted in Saucier v Katz, 533 U.S.

194, 121 S Ct 2151, 150 L Ed 2d 272 (2001)

History

Society has grappled with misconduct andcorruption issues for as long as it has had police

officers Through the mid-to-late nineteenth

century, private police forces were

common-place, and agents of Pinkerton’s and other hire services became notorious as the muscleemployers used to violently end strikes Heavy-handed law enforcement as well as VIGILANTISM

for-by groups such as the racist KU KLUX KLAN

spurred passage of the CIVIL RIGHTS ACT of

1871, which criminalized acting under state law

to deprive a person of constitutional or otherrights under federal law.SECTION 1983of the actremains a critical tool in the early 2000s forenforcing constitutional rights, with directapplicability to police misconduct cases

The twentieth century saw multiple legal,administrative, and scholarly approaches to theproblem Some developments bore indirectlyupon police misconduct, such as the passage ofthe Civil Rights Act of 1964, which gave newprotections to citizens who had long suffereddiscriminatory policing Additionally, a string oflandmark Supreme Court decisions during theera gave new force both to individual privacyrights as well as to curbs upon POLICE POWER:highly influential cases resulted in the strength-ening of FOURTH AMENDMENT rights againstunreasonable SEARCH AND SEIZURE, evidentiaryrules forbidding the use at trial of evidencetainted by unconstitutional police actions, andthe establishment of the so-called MirandaWarning requiring officers to advise detainedsuspects of their constitutional rights

While these decisions profoundly shaped thelegal and social landscape, renewed focus onpolice misconduct and corruption occurred inthe latter part of the century As the pioneeringcriminologist Herman Goldstein argued, tradi-tional views were based on the assumption thatpolice abuse reflected the moral failings of indi-vidual officers—the so-called “bad cop.” Publicscandals began to shape a new view of the prob-lem In 1971, New York City organized theKnapp Commission to hold hearings on theextent of corruption in the city’s police depart-ment Police officer Frank Serpico’s startling tes-timony against fellow officers not only revealedsystemic corruption but highlighted a long-standing obstacle to investigating these abuses:

the fraternal understanding among police cers known variously as “the Code of Silence”

offi-and “the Blue Curtain” under which officersregard testimony against a fellow officer asbetrayal

Broader recognition of the problem broughtmore ambitious reform efforts in the 1980s and1990s Spurred by the work of criminologistsPOLICE CORRUPTION AND MISCONDUCT 7

such as Goldstein and others, police ments sought to improve organizational rules,training, and prevention and control mecha-nisms Such efforts are reflected in the publica-tion of a code of police conduct by theInternational Association of Chiefs of Police,more rigorous training for officers, and experi-mented with so-called community policing pro-grams to improve ties between officers and thepublic Several cities established joint police andcivilian complaint review boards to give citizens

depart-a ldepart-arger role in whdepart-at trdepart-aditiondepart-ally hdepart-ad been depart-aclosed, internal process by police departments

Among the most dramatic examples of tem-wide reform is New York City’s response tolong-standing brutality, discrimination, andcorruption within the New York City PoliceDepartment (NYPD) After flirting with civilianreview of complaints against police in the 1960s,the city committed to it after public outcry overthe videotaping of officers beating citizens whoviolated curfew in 1988 The city subsequentlyestablished its Civilian Complaint ReviewBoard, which became an all-civilian agency in

sys-1993 In 1992, responding to new complaints,Mayor David N Dinkins appointed the Com-mission to Investigate Allegations of Police Cor-ruption and the Anti-Corruption Procedures ofthe Police Department, known as the MollenCommission Two years later, the commissionconcluded that the city had alternated betweencycles of corruption and reform Afterwards, in

1995, Mayor Rudolph W Giuliani establishedthe full-time Commission to Combat PoliceCorruption (CCPC) as an entity independentfrom the police department The CCPC moni-

tors the NYPD anti-corruption policies and cedures, conducts audits, and issues publicreports

mis-its May 2000 report, The Measurement of Police Integrity, most corruption incidents go unre-

ported, and data that do exist “are best regarded

as measures of a police agency’s anticorruptionactivity, not the actual level of corruption.”During the late 1990s, highly-publicizedcases in New York, New Jersey, Texas, Detroit,and Cleveland exposed an apparently new trend:police drug corruption In the Cleveland casealone, the FBI arrested 42 officers from five lawenforcement agencies in 1998 on charges of con-spiracy to distribute cocaine In a 1998 report toU.S Congressman Charles B Rangel, the federal

GENERAL ACCOUNTING OFFICE (GAO) foundevidence of growing police involvement in drugsales, theft of drugs and money from drug deal-ers, and perjured testimony about illegalsearches The GAO survey of police commissionreports and academic research suggested a trou-bling new dimension previously not seen instudies of police corruption Traditionally,police corruption had been understood toinvolve individuals acting alone, but the newtrend revealed officers working in small groups

to protect and assist each other

In 1999, this pattern emerged in one of theworst police corruption scandals in U.S history.The scandal involved the Los Angeles PoliceDepartment’s Rampart precinct and particularlyits elite anti-gang unit, CRASH (CommunityResources Against Street Hoodlums) Followinglocal and federal investigations, CRASH was dis-mantled, some 70 officers were investigated, andseveral either pleaded guilty to or were convicted

of crimes ranging from drug theft and peddling

to assault, fabricating arrests, and filing falsereports

The Rampart scandal bore heavy costs,financially as well as in human terms Severaldozen criminal convictions credited to the work

Protesters react to the

acquittal of four New

York City police

officers in the 1999

shooting death of

Amadou Diallo.

AP/WIDE WORLD PHOTOS

of the corrupt officers were overturned By 2003,

the city had already paid $40 million to settle

lawsuits In a settlement with the federal

gov-ernment in 2000, the Los Angeles City Council

accepted a CONSENT DECREE that placed the

city’s police department under the supervision

of a federal judge for five years to implement

and monitor reforms

However, reform is no panacea Even NewYork City’s extensive reforms were called into

doubt by two high-profile police cases in the

1990s Both highlighted the difficulties inherent

in prosecuting even apparently clear-cut

mis-conduct The first, in 1997, involved Haitian

immigrant Abner Louima, who was shockingly

beaten in a police cruiser and sodomized in a

bathroom with a broom handle by four NYPD

officers Louima ultimately settled a civil case

against the department for $8.7 million in 2001,

one of the highest police brutality settlements

ever paid and the highest by New York City since

paying a $3 million settlement in the choking

death of Anthony Baez in 1994

Yet, despite much public frustration, cution of the officers was less conclusive Officer

prose-Justin Volpe pleaded guilty to leading the

SODOMYassault and was sentenced to 30 years in

prison However, in 1999, his fellow three officers

were acquitted on charges of assault in the police

cruiser; one of them, officer Charles Schwarz,

was convicted of violating Louima’s civil rights

for holding him down during the bathroom

assault In 2000, all three were convicted of

obstructing justice for their actions in covering

up evidence of the attack, but these convictions

were later overturned in United States v Schwarz,

283 F.3d 76 (2d Cir 2002) Ordered a new trial

on the civil rights charge, Schwarz reached a plea

bargain in September 2002, agreeing to be

sen-tenced to a 5-year prison term

The second New York controversy involvedthe killing in 1999 of an unarmed man Four

undercover police officers shot Amadou Diallo

41 times after stopping the Guinean immigrant

in the vestibule of his apartment building,

where, they said, he reached into his back

pocket Large public protests attracted activists

such as Susan Sarandon and former New York

mayor David Dinkins, who argued that the

department’s so-called Aggressive Street Crimes

Unit was in fact far too aggressive In 2000, the

four officers were acquitted in a trial that

sup-porters said vindicated them but which critics

blamed on lax prosecution

Outside the courts, mounting resentmentover discriminatory misconduct by police offi-cers has occasionally led to rioting In contem-porary experience, the Los Angeles riots in 1992followed the acquittal of white police officerscharged with the videotaped beating of blackmotorist RODNEY KING In April 2001, threedays of rioting in Cincinnati followed theacquittal of a white police officer on charges ofshooting Timothy Thomas, a 19-year oldunarmed black man

Cities, courts, police departments, andcriminologists all continue to examine ways tobring meaningful reform to police depart-ments Some critics have argued that miscon-duct and corruption are age-old problems thatresist all efforts at eradication; the best societycan do, in this view, is monitor and correct

Others trace recent problems to public policythat emphasizes aggressive policing of drug,gang, and street crimes Whatever the cause andthe solution, until more efficacious remediesare found, some citizens will still require pro-tection from the very people appointed to pro-tect and serve them

FURTHER READINGS

Drug Policy Alliance “Police Corruption.” Available online

at <www.drugpolicy.org/law/police/> (accessed August

23, 2003).

Howell, Ron 2002 “Mother Hopes for Settlement.” Newsday

(February 5).

Hurtado, Patricia 2002 “Case Now Closed: Unusual Plea

Deal Yields No Clear Win for Louima, Schwarz.”

News-day (September 23).

Kennedy, Rozella Floranz, ed “Fighting Police Abuse: A Community Action Manual.” ACLU Department of Public Education Available online at <archive.aclu.org/

library/fighting_police_abuse.html> (accessed August

23, 2003).

Klockars, Carl B., et al 2000 “The Measurement of Police

Integrity.” Research in Brief Washington, D.C.: National

Institute of Justice.

“Law Enforcement—Information on Drug-Related Police

Corruption.” 1998 Government Accounting Office

Report Washington, D.C.: Government Printing Office

(June 29).

Manalili, Joseph, ed “Chapter 5: Remedies and Legal

Devel-opments.” Revisiting Who Is Guarding the Guardians?

Washington, D.C.: U.S Commission on Civil Rights.

Available online at <www.usccr.gov/pubs/guard/main htm> (accessed August 23, 2003).

New York City Civilian Complaint Review Board “History of the CCRB.” Available online at <www.ci.nyc.ny.us/html/

ccrb/html/history.html> (accessed August 23, 2003).

“The Rampart Scandal.” F RONTLINE/PBS Online Available

online at <www.pbs.org/wgbh/pages/frontline/shows/

lapd/scandal> (accessed September 5, 2003).

POLICE CORRUPTION AND MISCONDUCT 9

U.S Department of Justice Civil Rights Division, tion, and Review Section “Addressing Police Miscon- duct: Laws Enforced by the United States Department

Coordina-of Justice.” Available online at <www.usdoj.gov/crt/cor/

Pubs/polmis.htm> (accessed August 23, 2003).

CROSS-REFERENCES

Civil Rights; Conspiracy; Constitutional Law; tion; Fourth Amendment; Immunity; Ku Klux Klan; Pinker- ton Agents; Privacy.

Discrimina-POLICE POWER

The authority conferred upon the states by the

TENTH AMENDMENTto the U.S Constitution and which the states delegate to their political subdivi- sions to enact measures to preserve and protect the safety, health,WELFARE, and morals of the com- munity.

Police power describes the basic right of

gov-ernments to make laws and regulations for thebenefit of their communities Under the system

of government in the United States, only stateshave the right to make laws based on their policepower The lawmaking power of the federal gov-ernment is limited to the specific grants ofpower found in the Constitution

The right of states to make laws governingsafety, health, welfare, and morals is derivedfrom the Tenth Amendment, which states, “Thepowers not delegated to the United States by theConstitution, nor prohibited by it to the states,are reserved to the States respectively, or to thepeople.” State legislatures exercise their policepower by enacting statutes, and they also dele-gate much of their police power to counties,cities, towns, villages, and large boroughs withinthe state

Police power does not specifically refer tothe right of state and local government to createpolice forces, although the police power doesinclude that right Police power is also used asthe basis for enacting a variety of substantivelaws in such areas as ZONING, land use, fire and

BUILDING CODES, gambling, discrimination,parking, crime, licensing of professionals, liquor,motor vehicles, bicycles, nuisances, schooling,and sanitation

If a law enacted pursuant to the policepower does not promote the health, safety, orwelfare of the community, it is likely to be anunconstitutional deprivation of life, liberty, orproperty The most common challenge to astatute enacted pursuant to the police power is

that it constitutes a taking A taking occurswhen the government deprives a person ofproperty or directly interferes with or substan-tially disturbs a person’s use and enjoyment ofhis or her property

The case of Mahony v Township of ton, 539 Pa 193, 651 A.2d 525 (1994) illustrates

Hamp-how a state or local jurisdiction can exceed its

police power Mahony involved a zoning

ordi-nance enacted by the township of Hampton inPennsylvania The ordinance prohibited a pri-vate party from operating a gas well in a resi-dential district but allowed the operation ofsuch wells by the government Jack D Mahony,

a landowner who operated a gas well, objected

to the ordinance, arguing that the disparatetreatment of public and private operation of gaswells was ARBITRARY and not justified by anyconcerns related to the police power Mahonynoted that the STATE DEPARTMENTof Environ-mental Regulation (DER) already regulated allgas wells in the state and that there was no fac-tual basis for distinguishing between public andprivate wells

The Supreme Court of Pennsylvania agreedwith Mahony that the regulation by the DERwas sufficient to secure the safety of the com-munity The court opined that if the townshipwished to further ensure gas well safety, it couldrequire the posting of a bond with the townshipbefore granting a license to operate the well.Such a measure would ensure that the gas wellwas being operated by a financially secure per-son who would have the resources to keep thewell in good repair The court held that the totalban on private operation of gas wells in residen-tial districts was unreasonable and that it bore

no real and substantial relation to the health,safety, and welfare of the community Therefore,the ordinance was an invalid exercise of thepolice power

As applied to a law, ordinance, or RULE OF LAW, the general purpose or tendency considered

as directed to the welfare or prosperity of the state

or community.

POLITICAL ACTION COMMITTEE

A group not endorsed by a candidate or political

party but organized to engage in political election

activities, especially the raising and spending of

money for “campaigning.” Some political action

committees (PACs) are organized solely to help

defeat a candidate deemed undesirable by the

group.

PACs are most often organized around aparticular trade, union, or business; they are also

organized to promulgate particular social,

eco-nomic, or political beliefs or agendas For

exam-ple, there are PACs formed to represent the

interests of the pharmaceutical industry and the

automotive industry From an ideological

per-spective on ABORTION, there are both pro-life

PACs and pro-choice PACs

Some PACs are sponsored by a corporation,business, or LABOR UNION Corporations, busi-

ness interests, and LABOR UNIONSthat sponsor

PACs are prohibited from contributing their

organizations’ funds to the PACs they sponsor,

but employees or members of the sponsoring

organizations may contribute

Many types of special-interest groups haveestablished PACs, including the following exam-

ples: coal operators, hospitals, labor unions,

banks, doctors, feminist groups, lawyers,

insur-ance agents, pharmaceutical companies, and

manufacturers These groups commonly form

PACs to promote their legislative goals Some of

these, such as the coal industry and labor PACs,

generally give most of their donations to

candi-dates they expect to favor their legislative

agen-das Other PACs, such as those created by

chiropractors or publishers, may dole out small

contributions to dozens of candidates with

widely varying political views

Nearly all PACs have specific legislativeagendas Special-interest PACs are a major force

in the financing of congressional campaigns

Their contributions heavily favor incumbents

These PACs’ numbers and influence are

grow-ing For example, in 1976 there were only 608

PACs; just 20 years later, in 1996, there were

more than 4,000 PACs

Some PACs are not sponsored by an zation For example, some members of Congress

organi-have formed their own PACs These PACs are

separate from their candidate committees This

separation allows them to accept contributions

and distribute larger sums than they otherwise

could through their own candidate committee

A newly formed PAC must register with the

FED-ERAL ELECTION COMMISSION (FEC) within tendays of its formation The PAC must provide thename and address for the PAC, its treasurer, andany affiliated organizations

Many politicians also form leadership PACs.

These PACs are not technically affiliated withthe candidate Rather, they are a way of raisingmoney to help fund other candidates’ cam-paigns Leadership PACs are often indicative of apolitician’s aspirations for leadership positions

in Congress or for higher office

Although PACs are used mostly by members

of the House and Senate, they also can be used

in presidential campaigns For example, in BobDole’s presidential bid in 1994, Dole formed aleadership PAC called “Campaign America.”

This PAC helped contribute $62,000 to state andlocal candidates in Iowa This type of moneyhelped Dole to build a very strong base of sup-port for his presidential bid during the Iowa pri-maries, although he eventually went on to losethat election bid The laws regarding publicfunding for presidential candidates are techni-cally separate from the Federal Election Cam-paign Act, Pub L 92–225, 86 Stat 19, 2 U.S.C

§ 451, and are found in the Presidential paign Fund Act, 26 U.S.C §§ 9001-9012, and the Presidential Primary Matching PaymentAccount Act, 26 U.S.C §§ 9031–9042

Cam-PACs first came into existence in 1944 TheCongress of Industrial Organizations (CIO)formed the first PAC to raise money for the re-election of President FRANKLIN D ROOSEVELT.The PAC received voluntary donations fromunion members rather than from union treasur-ies; this system did not violate the Smith Con-nally Act of 1943, which forbade unions fromcontributing to federal candidates Althoughcommonly called PACs, federal election lawrefers to these accounts as “separate segregatedfunds” because money contributed to a PAC iskept in a bank account separate from the generalcorporate or union treasury

In 1936, labor unions began spending uniondues to support federal candidates sympathetic

to the workers’ issues This practice was ited by the Smith-Connally Act of 1943, Pub L

prohib-No 78-89, 57 Stat 163 (1943) Thus, laborunions, corporations, and interstate banks wereeffectively barred from contributing directly tocandidates for federal office In 1944, the Con-gress of Industrial Organizations (CIO), one ofthe largest labor interest groups in the nation,found a way to go around the constraints of the

POLITICAL ACTION COMMITTEE 11

Smith-Connally Act by forming the first cal action committee, or PAC.

politi-The CIO’s political goal was to support there-election of President Franklin D Roosevelt

Because the CIO was a union and prohibitedfrom using union money to support a federalcandidate by the Smith Connally Act, the PACcircumvented the prohibitions of the act bysoliciting volunteer contributions from individ-ual union members

In the wake of the WATERGATEpolitical dal in the early 1970s, Congress passed newcampaign financing legislation known as theFederal Election Campaign Act (FECA) FECAwas intended to do the following:

scan-■ achieve full disclosure of the sources of paign contributions;

cam-■ limit the size of campaign contributions bywealthy individuals and organized interestgroups;

■ provide public funding—with spending its—for presidential candidates; and

lim-■ enforce campaign finance rules through anew ADMINISTRATIVE AGENCY, the FederalElection Commission (FEC)

This legislation also continued older bitions on the use of corporation and uniontreasury funds in federal elections These provi-sions of FECA were sustained by the Supreme

prohi-Court in the leading case of Buckley v Valeo, 424

U.S 1, 96 S Ct 612, L Ed 659 (1976)

Following the 2002 midterm elections, a newset of campaign finance laws went into effect TheBipartisan Campaign Reform Act (BCRA), Pub

L No 107-155, 116 Stat 81, is considered themost sweeping change of the U.S campaignfinance system since the FECA The legislationwas sponsored by Senators JOHN MCCAIN(R-AZ)and Russ Feingold (D-WI) and RepresentativesChris Shays (R-CT) and Marty Meehan (D-MA).The BCRA is an attempt to curb the use of

“soft money” in campaigns Basically, softmoney is money donated to political parties in away that leaves the contribution unregulated.Conversely, “hard money” consists of politicaldonations that are regulated by law through theFederal Election Commission The soft moneyloophole was created, not by Congress, but bythe Federal Election Commission in an adminis-trative ruling in 1978 The law also increases thecontribution limits for individuals giving to fed-eral candidates and political parties

PACs can donate up to $5,000 to a date’s campaign committee for each individualelection bid, and PACs can give $5,000 a year toany other PAC PACs may receive up to $5,000from any one individual, PAC, or party commit-tee during any given calendar year They can alsodonate up to $15,000 annually to any nationalparty committee PACs that affiliate with otherlike-minded PACs are treated as one donor forthe purpose of contribution limits

candi-The Supreme Court has ruled that spending

in support of or in opposition to a candidatethat is not coordinated with any candidate can-not be limited Such “independent expendi-tures” can be made by either individuals orPACs Independent expenditures are those made

on behalf of (or against) a candidate that are notcoordinated with a candidate For example, anexporters’ PAC might spend $50,000 on TV adscritical of a candidate’s stand on import restric-tions and urge a vote against that candidate.Political ads which urge the viewer to “votefor” or “vote against” a candidate are examples

of express advocacy and must be paid for from

SOURCE: Center for Responsive Politics web page.

PAC Campaign Contributions, 1979 to 1998

contributions which come under the restrictions

of federal campaign finance laws, including

pro-hibitions on contributions by corporations or

labor unions Advertising campaigns discussing

issues—and not directly advocating the defeat

or election of a candidate—are not subject to

federal campaign finance laws Thus, these

“issue advocacy” campaigns are not subject to

limits on spending or contributions and are not

required to disclose their contributions or

expenditures

FURTHER READINGS

Anschutz, Auguste V., ed 2002 Campaign Financing in the

United States: Issues and Laws Huntington, N.Y.: Nova

Science.

Bauer, Robert F 2002 Soft Money Hard Law: A Guide to the

New Campaign Finance Law Washington, D.C.: Perkins

Coie.

Biersack, Robert, Paul S Herrnson, and Clyde Wilcox, eds.

1999 After the Revolution: PACs, Lobbies, and the

Repub-lican Congress Boston: Allyn and Bacon.

— 1994 Risky Business? PAC Decisionmaking in

Con-gressional Elections Armonk, N.Y.: M.E Sharpe.

Corrado, Anthony 2000 Campaign Finance Reform New

York: Century Foundation.

Herrnson, Paul S 2004 Congressional Elections:

Campaign-ing at Home and in WashCampaign-ington 4th ed WashCampaign-ington,

D.C.: CQ Press.

Ryden, David K., ed 2002 The U.S Supreme Court and the

Electoral Process Washington, D.C.: Georgetown Univ.

Press.

CROSS-REFERENCES

Campaign Finance Reform.

POLITICAL CAMPAIGN LAW

Statutes and court rulings that govern candidates

running for public office.

Political campaign laws have been enacted toensure fair elections and to prevent misleading

or false information from being given to voters

Though federal and state laws that govern

cam-paign financing dominate the headlines, there

are a host of state laws that a candidate must

fol-low during a campaign A candidate who

vio-lates campaign laws risks criminal prosecution

or the FORFEITUREof the public office

Political campaigns are protected by the

FIRST AMENDMENT, but FREEDOM OF SPEECHis

not unlimited For example, state laws prohibit

candidates from using the term “reelect” in

cam-paign signs and literature if the person is not the

incumbent of that office Candidates are also

barred from making “false claims of support”

that falsely state or imply the endorsement of a

political party or an organization Moreover, acandidate cannot state in printed campaign lit-erature that specific individuals endorse the candidate without first obtaining written per-mission from those individuals All of these lawsspeak to fraudulent MISREPRESENTATION by acandidate

More difficult situations arise when one didate alleges that another candidate has inten-tionally misrepresented the position of theother Open political debate is expected in acampaign but candidates can be prosecuted ifthe claims are judged to be objectively false

can-Candidates who retract or withdraw challengedcampaign literature may escape any penalties forthese actions if done in a timely manner How-ever, false claims made in the closing days orhours of a campaign will be scrutinized moreclosely

Up until the early twentieth century politicalcampaigns were marred by corruption Citizenstraded their vote for money or the promise of agovernment job or benefit Progressive Erareformers sought to diminish the power ofpolitical machines that used BRIBERY, as well ascoercion, to assure the election of their candi-dates States have enacted criminal laws thatprohibit bribing persons to vote or not vote in

an election For example, a person may port voters to the polls on election day but maynot solicit votes Persons who directly or indi-rectly threaten the use of force, coercion, eco-nomic REPRISAL, loss of employment, or otherharm to compel individuals to vote or not votefor a candidate are also subject to prosecution

trans-Political advertising on television and radio

is also subject to regulation For example, paper print ads, along with radio and televisionbroadcasts, must convey to the public that amessage is a paid advertisement Such laws seek

news-to prevent voters from believing that the sage is actually news In addition, the name ofthe candidate, party, or organization that paidfor the advertisement must be disclosed at thebeginning or end of the advertisement Thisrequirement has been evaded at times when ashell organization is created to disguise the trueidentity of the sponsor

mes-Candidates who violate these types of paigns laws can be prosecuted A losing candi-date typically lodges a complaint with the localdistrict or county attorney, alleging certain vio-lations If the district attorney finds merit in theallegations a prosecution will follow This type

cam-POLITICAL CAMPAIGN LAW 13

of prosecution is rare but a candidate who isconvicted of a campaign law violation may for-feit the nomination or office in question How-ever, forfeitures will occur only if it is proventhat the candidate committed the act or knewthat another person committed the act Courtswill reject forfeiture if the act was trivial or acci-dental and it would be unjust to declare forfei-ture Even if a court declines to declareforfeiture, legislatures have the right to deter-mine their membership Occasionally, a legisla-tive body will refuse to seat a person who hascommitted campaign violations.

Candidates must follow campaign financingrules State and federal laws authorize publicfinancing of many campaigns Candidates whoaccept public financing must abide by thestrings that are attached to this funding In addi-tion, political campaigns must maintain finan-cial records of contributions and expenditures,which are filed at designated times before, dur-ing, and after a campaign Campaign commit-tees may be fined for failing to file reports ontime or for substantive violations The FEDERAL ELECTION COMMISSION (FEC) oversees cam-paign financing for federal elections At the statelevel a campaign finance board or the SECRE- TARY OF STATEmay oversee this task

secu-POLITICAL QUESTION

An issue that the federal courts refuse to decide because it properly belongs to the decision-making authority of elected officials.

Political questions include such areas as theconduct of foreign policy, the ratification ofconstitutional amendments, and the organiza-tion of each state’s government as defined in itsown constitution The rule preventing federalcourts from deciding such cases is called thepolitical question doctrine Its purpose is to dis-tinguish the role of the federal judiciary from

those of the legislature and the executive, venting the former from encroaching on either

pre-of the latter Under the rule, courts may choose

to dismiss cases even if they have jurisdictionover them However, the rule has no precise for-mulation, and its development since the 1960shas sometimes been unpredictable

The Supreme Court originated the idea ofpolitical questions in the early 1800s during itsformative era As with other judicial doctrinescreated by the Court, the rule is interpretive andself-imposed It is neither a result of legislationnor a part of the U.S Constitution, although itappears to emanate from the Constitution’s SEP- ARATION OF POWERS The Court created thepolitical question doctrine as part of the broaderconcept of justiciability—the issue of whether amatter is appropriate for court review Appro-priate matters are called JUSTICIABLEcontrover-sies and may proceed to court Politicalquestions are not regarded as appropriate mat-ters; they are not justiciable and, generally, will

be dismissed The political question doctrinewill not be applied to every matter that arousesfierce public debate, as seen in the Court’s rul-ings on ABORTION and AFFIRMATIVE ACTION

As the history of the Supreme Court shows, thedetermination of whether an issue is justiciable

is at its own discretion

Chief Justice JOHN MARSHALL first used the

term political question in 1803 at a time when

the Court sought to tread delicately betweenwarring factions of politicians in Washington.Not until 1849 was the idea elaborated, inresponse to a crisis in the state of Rhode Islandknown as the Dorr Rebellion: a political upris-ing had resulted in the passage of two separatestate constitutions, the declaration of MARTIAL LAW, and the promise of military intervention

by President JOHN TYLER The Supreme Courtwas asked to settle critical constitutional ques-tions about the nature of republican govern-

ment but refused (Luther v Borden, 48 U.S [7

How.] 1, 12 L Ed 581 [1849]) Chief Justice

ROGER TANEYinstead delivered the first lation of the doctrine: federal courts shouldleave certain constitutional questions to the leg-islative and executive branches in any matterthat is “a political question to be settled by thepolitical power.”

articu-From the mid-nineteenth century until the1960s, the political question doctrine changedvery little Then the Supreme Court began tonarrow it: where previously a broad rule applied,

now matters that would have been rejected as

political questions became justiciable

controver-sies In a landmark case in 1962, the Court

inter-vened to allow a challenge to the way in which

the Tennessee legislature apportioned its voting

districts (BAKER V CARR, 369 U.S 186, 82 S Ct

691, 7 L Ed 2d 663) Again, in 1969, the Court

took up a matter that previously would have

been dismissed This was its decision that the

House of Representatives could not exclude a

duly elected member who met all constitutional

qualifications, despite the provision in Article I

of the Constitution that gives both houses of

Congress the power to judge qualifications

(Powell v McCormack, 395 U.S 486, 89 S Ct.

V NIXON,418 U.S 683, 94 S Ct 3090, 41 L Ed

2d 1039) It is well settled that the federal courtscannot supervise or control the decisions of thepresident or other executive officials PresidentNixon had relied on this fact when he defiedcongressional subpoenas asking him to releasetapes and documents made in the White House

The Court chose, however, not to adhere rigidly

to the rule by holding that the demands of a fairtrial and criminal justice outweighed the presi-dent’s claim

FURTHER READINGS

Arnhart, Larry 2003 Political Questions: Political Philosophy

from Plato to Rawls 3d ed Prospect Heights, Ill.:

Wave-land Press.

POLITICAL QUESTION 15

Richard Nixon’s counsel argued that the president’s refusal

to comply with the subpoenas of White House tapes was a political question because it was a dispute among members of the executive branch, namely the president and special prosecutor The Supreme Court compelled Nixon to produce the tapes, prompting him

to resign on August 8, 1974.

AP/WIDE WORLD PHOTOS

Pushaw, Robert J., Jr 2002 “The Presidential Election pute, the Political Question Doctrine, and the Four-

Dis-teenth Amendment.” Florida State University Law

Although it is sometimes difficult to guish political trials from ordinary legal pro-ceedings, political trials generally fall into one offour categories The most familiar type of polit-ical trial is a partisan trial, which consists ofcriminal legal proceedings instituted by the gov-ernment to solidify its power, extinguish itsopposition, or flex its muscle Such political tri-als, while taking place in a courtroom, have little

distin-to do with justice Instead, partisan trials serve

to promote the ideology of those holding thereins of power

In many countries partisan trials are easy toidentify because the prosecutors, judges, anddefense attorneys are chosen by the governmentbased on their allegiance to the regime’s politicalphilosophy In other countries the governmentmay exert subtle pressure upon judges and

attorneys to influence the outcome of a case Ineither situation such proceedings rarely produce

a result that is fair or impartial Some of themost notorious partisan trials took place in

ADOLF HITLER’s Germany and JOSEPH STALIN’sSoviet Union where many of the judges, prose-cutors, and defense attorneys served as instru-ments of terror and propaganda for theirtotalitarian leaders

A second familiar type of political trialinvolves the prosecution of religious and politi-cal dissenters Since time immemorial, govern-ments have been confronted by persons whodisobey the law for reasons of conscience Suchdisobedience, which can take the form of active

or passive resistance, presents a dilemma formost governments

On the one hand, governments must cute persons who disobey the law to maintainthe integrity of the legal system Yet if the prose-cution takes place in a public forum, a political

prose-or religious dissenter is likely to question thepropriety of a particular law or policy and chal-lenge the legitimacy or competency of the exist-ing government On the other hand, if thegovernment covertly silences a dissenter in pri-vate, the legal system exposes itself to charges ofpersecution, which compromises the public’srespect for the law

By prosecuting dissenters in open courtbefore an impartial judge and an unbiased jury,the U.S legal system attempts to strike a balancebetween the competing interests of the govern-ment and dissenters Historically, many regimeshave been unable to achieve this delicate bal-ance In ancient Greece 500 Athenian jurorsmade a martyr out of Socrates when they sen-tenced him to death for corrupting the youthand criticizing government officials The Romangovernor Pontius Pilate sparked concerted reli-gious opposition to his government by con-demning Jesus of Nazareth for blasphemouslyclaiming to be the Son of God and King of theJews In 1735 British authorities planted theseeds of rebellion in the American colonieswhen they unsuccessfully prosecuted journalist

JOHN PETER ZENGERfor seditious libel

A third common type of political trialinvolves nationalists who challenge a govern-ment’s authority to represent them Nationalistsspeak for an identifiable group of people whoshare a common characteristic, such as race, reli-gion, or ethnicity Trials of nationalists call intoquestion both the unity of society and the

Andrew Hamilton

(standing, arm extended) defends

New York printer and

journalist John Peter

capacity of a regime to speak for the people.

Governments prosecute nationalists in part to

publicly affirm their ability and resolve to

gov-ern the populace Faced with certain defeat in

the short run, many nationalists still present a

vigorous defense to raise political awareness and

record their battle for posterity

The 1922 trial ofMOHANDAS K GANDHI, forexample, served as a lightning rod of national-

ism in India by uniting opposition against the

oppressive imperial government of Great

Britain The TREASONtrials of Nelson Mandela

in Pretoria, which took place in the late 1950s

and early 1960s, similarly raised the

conscious-ness of blacks in South Africa and focused the

world’s attention on the apartheid system of

government In both cases, though the

national-ists were temporarily silenced by the regimes

they opposed, their causes ultimately prevailed

as their people were given an equal voice in the

affairs of government

The fourth type of political trial involves thetrial of entire regimes, or the leading members

of a particular government When governments

are overthrown by a coup or revolution, the new

regime must decide how to treat members of the

old regime In some instances members of the

old regime are granted clemency, and efforts are

made to assimilate them into society In other

instances members of the old regime are

expelled from office and banished from the

country and deprived of their citizenship

How-ever, in a great number of cases the old regime is

put on trial by the new regime and prosecuted

for every transgression, great and small

These trials can serve at least two purposes

First, they can highlight the malignant qualities

of the demised regime Second, they can

under-score the virtue of the new regime by tempering

the vengeful calls for summary executions that

regularly follow the cessation of hostilities in a

revolution, civil war, or other type of military

conflict The Nuremberg WAR CRIMES trials, in

which twenty-four of the top Nazis were tried by

the Allied powers following WORLD WAR II,

pro-vides a modern example in which members of a

vilified regime were afforded a full assortment of

legal protections despite demands for summary

execution

In a limited sense all trials have a politicalelement As one of the three branches of govern-

ment, the judiciary is an inherent part of the

political system Additionally, all trials carry

with them tangible political ramifications by

delineating the rights and responsibilities of civiland criminal litigants Because many judicialdecisions are considered precedent, the legalprinciples established in one case may beapplied to other members of society in a subse-quent analogous case

However, in the United States the term ical trial has acquired a broader meaning A trial

polit-is generally characterized as political when itpresents a question that transcends the narrowissue of guilt or innocence by implicating largersocietal, cultural, or international considera-tions The WATERGATE trials of the mid-1970s,for example, focused on the legal issues of break-ing and entering, conspiracy, and OBSTRUCTION

OF JUSTICE However, these trials also tized the fall of a president and the consequences

FURTHER READINGS

Carville, James 1998 And the Horse He Rode in On: The

Peo-ple vs Kenneth Starr New York: Simon & Schuster.

Christenson, Ron 1999 Political Trials: Gordian Knots in the

Law 2d ed New Brunswick, N.J.: Transaction Press.

Hiss, Anthony 1999 The View from Alger’s Window: A Son’s

Memoir New York: Knopf.

Jackson, Robert H 1946 The Case Against the Nazi War

Criminals New York: Knopf.

Lahav, Pnina 2000 “The Chicago Conspiracy Trial:

Charac-ter and Judicial Discretion.” University of Colorado Law

Review 71 (mid-winter).

Levine, Mark, George C McNamee, and Daniel Greenberg.

1970 Tales of Hoffman (From the Trial of the Chicago 7).

New York: Bantam.

CROSS-REFERENCES

Black Panther Party; Chicago Eight; Civil Rights Movement;

Communism; Davis, Angela Yvonne; King, Martin Luther, Jr.; Nuremberg Trials; Pacifism; Thoreau, Henry David.

❖POLK, JAMES KNOX

James Knox Polk, eleventh president of theUnited States, served just one term in office, but

in that time he was extremely influential inshaping the country’s evolution into a large andpolitically formidable nation Polk’s primaryachievements came in the area of foreign affairs,where he completed the annexation of Texas;

“T HE PEOPLE OF THIS CONTINENT ALONE HAVE THE RIGHT TO DECIDE THEIR OWN DESTINY ”

—J AMES K P OLK

directed the Mexican War (1846–48); and tiated with Great Britain for the acquisition ofthe Oregon territory In domestic policy, Polkwas a strong advocate for lowering tariffs andestablishing an independent treasury for theUnited States Historians and presidential schol-ars consistently rate Polk among the most effec-tive and important presidents of the UnitedStates.

nego-James Polk was born on November 2, 1795,

in Mecklenburg County, North Carolina Hegraduated from the University of North Car-olina at Chapel Hill and went on to study law,establishing a successful practice in Columbia,Tennessee

Polk soon embarked on a political career,being elected to the Tennessee legislature in 1823and the U.S House of Representatives in 1825

In Congress, Polk fought to defend individualfreedoms, the rights of the states against the cen-tralizing tendencies of the national government,and a strict interpretation of the Constitution

In 1839 Polk was elected governor of Tennessee

However, his two-year term in office was tinguished, and he was defeated in the 1841 and

undis-1843 gubernatorial races

After his second defeat, Polk’s political careerappeared to be over, but events took a surprisingturn MARTIN VAN BUREN, who had served asAndrew Jackson’s vice president from 1833 to

1837 and as president from 1837 to 1841, was

expected to be the DEMOCRATIC PARTY’s dential nominee for the 1844 election, but VanBuren’s candidacy was derailed when heannounced in April 1844 that he was opposed tothe annexation of Texas on the grounds that itwould constitute aggression against Mexico VanBuren’s support immediately eroded, becausethe annexation of Texas was a controversialpolitical item widely supported by ANDREW JACKSON and his followers By the time theDemocrats held their nominating convention inlate May, the party was in turmoil Van Buren’ssupporters failed to generate the support neededfor their candidate and Polk was nominated to

presi-be the presidential candidate instead

The Whig presidential candidate in 1844 wasthe powerful and influential HENRY CLAY ofKentucky, who had held important positions inboth the House and the Senate in addition toserving as SECRETARY OF STATE under JOHN QUINCY ADAMS The campaign was hard foughtand bitter Polk eventually won with 170 elec-toral votes compared with Clay’s 105; in thepopular vote, Polk received just 38,000 morevotes than Clay, out of the almost 2,700,000votes cast

The Polk administration added mately 1.2 million square miles to the UnitedStates, increasing its size by fifty percent Theaddition resulted from the three major foreignpolicy matters Polk oversaw: the annexation ofTexas, the Mexican War, and negotiations withGreat Britain over the Oregon territory

approxi-Polk inherited the Texas issue from theadministration of JOHN TYLER Tyler had wres-tled with Congress over methods for annexingTexas, which had existed as the independentLone Star Republic since winning its independ-ence from Mexico in 1836 Tyler and Congresshad agreed that Texas would be given the oppor-tunity to vote for annexation, and Polk contin-ued this approach The Texas congresseventually approved annexation and wrote astate constitution, which the voters approved in

a general REFERENDUM In December 1845 theU.S Congress completed the transaction byadmitting Texas as the twenty-eighth state.The annexation led to territorial disputesthat resulted in war between the United Statesand Mexico For several years relations betweenthe United States and Mexico had been rocky,primarily because the United States had madefinancial claims against the Mexican govern-ment Since winning its independence from

James K Polk.

LIBRARY OF CONGRESS

Spain in the early 1820s, Mexico had had a series

of unstable governments, and foreign nationals

often had lost property during the resulting

rev-olutions Those individuals and their

govern-ments lodged claims against the Mexican

government, and by the mid-1840s, these claims

amounted to millions of dollars This dispute

over claims had soured relations between the

United States and Mexico, and the annexation of

Texas brought matters to a crisis As part of the

annexation agreement, the United States

gov-ernment had consented to recognize Texas’s

claim to the Rio Grande boundary and to

pro-vide military protection to defend that

bound-ary For its part, Mexico had never given up hope

of winning back Texas, and the United States’

annexation, together with the assertion of the

Rio Grande boundary, the placement of U.S

troops along the border, and the longstanding

claims disagreement, led Mexico to break off

diplomatic relations with Washington and

accuse the United States of initiating war

In response, Polk sent a representative tonegotiate with the Mexican government, offer-

ing to buy California and New Mexico and

relinquish U.S claims against Mexico in return

for a recognition of the Rio Grande boundary

The Mexican government refused to negotiate,

and by spring of 1846, skirmishes were

begin-ning to break out along the border Polk

requested that Congress declare war, which it

did by an overwhelming margin Though the

United States lacked a powerful professional

army, volunteers signed up in droves The war

lasted until September 1847, when the Mexican

government agreed to enter into peace

negotia-tions In the resulting agreement, the Treaty of

Guadalupe Hidalgo, Mexico agreed to recognize

the Rio Grande as the boundary of Texas and to

cede New Mexico and upper California to theUnited States; for its part, the United Statesagreed to relinquish all claims against Mexicoand to pay the Mexican government $15 million

The third major foreign policy issue ing Polk’s attention was the dispute between theUnited States and Great Britain over the Oregonterritory, which stretched from the northernboundary of California to the Alaska panhandle,including what is now Oregon, Washington, andBritish Columbia Both countries claimed thearea but had agreed in 1818 to occupy it jointly,with the provision that either party could termi-nate the agreement with a year’s notice TheUnited States had repeatedly requested toresolve the issue by extending the forty-ninthparallel boundary that existed between the twocountries east of the Rocky Mountains, butBritain had refused, insisting on the ColumbiaRiver as the boundary

requir-The situation had remained unresolved, andBritish fur traders had continued to dominatethe area into the 1830s At that time, however,increasing numbers of U.S settlers migratedinto Oregon and pressed the United States toaddress their needs and defend their interests

After the 1844 presidential election, the issuebecame heated As U.S statements on the issuebecame more angry and aggressive, the Britishgovernment grew concerned that war mightbreak out, and it entered into earnest negotia-tions with the United States In July 1845 Polkonce again offered to draw the boundary at theforty-ninth parallel, but the British minister inWashington rejected the offer Furious, Polkwithdrew the offer, instead reasserting the U.S

claim to the entire territory

In his first message to Congress in December

1845, Polk continued this hard line on Oregon,

POLK, JAMES KNOX 19

1795 Born, Mecklenburg County, N.C.

1818 Graduated from University

of North Carolina

1812–14 War of 1812

1823 Elected to Tenn legislature

1825 Elected to U.S House

1839–41 Served

as governor of Tenn.

1849 Died, Nashville, Tenn.

1845 Texas admitted as 28th state of the Union

1846 Mexican War began; Oregon Territory boundary set at 49th parallel

1845–49 Served as 11th president

1848 Peace treaty ended Mexican War; Mexico ceded territories from Texas

to Calif to U.S.

◆

◆

❖

asking Congress to provide the one year’s noticethat the United States was terminating its jointoccupancy agreement with Great Britain Inaddition, he asked that jurisdiction be extended

to Americans living in Oregon and that militaryprotection be provided to emigrants along theroute to Oregon Finally, Polk reasserted the

MONROE D O CTRINE, which held that NorthAmerica was not open to any further coloniza-tion by European powers Polk’s tough stanceapparently spurred Great Britain to renew nego-tiations, and this time it agreed to the forty-ninth parallel boundary The treaty was signed

on June 15, 1846

A principal goal of Polk’s domestic agendawas to eliminate the high tariffs that had beenimposed in 1842 under the Tyler administra-tion Polk believed that low tariffs were crucialfor the success of the agricultural sector, andafter strong and sustained LOBBYING, he wasable to persuade Congress to reduce tariffs inJuly 1846

A second focus of Polk’s domestic effortswas the establishment of an independent treas-ury for the United States Previously, the govern-ment’s funds had been held in national banks or

in various state banks, but Polk argued that thegovernment’s money should not be deposited inbanks at all, but should be held in its own inde-pendent treasury

Despite Polk’s many successes, presidentialscholars agree that he utterly failed in his ability

to foresee the catastrophic consequences that the

SLAVERY issue would have for the nation Aslaveholder with plantations in Tennessee andMississippi, Polk never actively defended slavery,but he failed to see the importance that it wouldhave, instead believing that it was an aggravatingside issue that hampered the resolution of moreimportant problems

Polk left office when his term ended in 1849,remaining faithful to his election promise that

he would serve only one term as president Polkreturned to Tennessee exhausted and in illhealth Just three months after leaving office,Polk died unexpectedly on June 15, 1849 He wasfifty-four years old

FURTHER READINGS

Bergeron, Paul H 1994 “James K Polk.” Encyclopedia of the

American Presidency, edited by Leonard W Levy and

Louis Fisher New York: Simon & Schuster.

——— 1987 The Presidency of James K Polk Lawrence:

Univ Press of Kansas.

Haynes, Sam W 2002 James K Polk and the Expansionist

Impulse New York: Longman.

Leonard, Thomas M 2001 James K Polk: A Clear and

Unquestionable Destiny Wilmington, Del.: S.R Books.

Pletcher, David M 1996 “James K Polk.” The Presidents, 2d

ed., edited by Henry F Graff New York: Scribner.

fed-❖POLLACK, MILTON

Two of the nation’s great financial crises formthe bookends of Milton Pollack’s legal career.Pollack began his first phase of that career, as a

SECURITIES lawyer, just two weeks before the

1929 STOCK MARKETcrash Sixty years later, as afederal district court judge, he used his knowl-edge and experience to resolve a multibillion-dollar disaster that was left when DrexelBurnham Lambert, a powerful Wall Streetinvestment bank, collapsed into BANKRUPTCY.The lawsuits relating to Drexel were expected todrag on for decades, but under Pollack’s guid-ance, they were resolved and completed in justover three years Pollack considers the Drexel

CLASS ACTION suit (In re Drexel, 960 F 2d 285

[2d Cir 1992]) and the resulting bankruptcyreorganization to be his “lifetime masterpieces.”Pollack was born September 29, 1906, inNew York City He attended Erasmus HighSchool, and then Columbia College and LawSchool, where he received a bachelor of artsdegree in 1927 and a doctor ofJURISPRUDENCE

degree in 1929 He was admitted to the NewYork bar in 1930 Pollack married Lillian Klein

on December 18, 1932

After graduation, Pollack joined the law firm

of Gilman and Unger By 1937, Gilman andUnger had become Unger and Pollack, and by

1943, Pollack had proved himself to be a force inboth the legal and financial communities by win-ning a $4.5 million shareholder lawsuit against

General Motors Corporation (Singer v General

Motors Corp., 136 F 2d 905 [2d Cir 1943]).

In 1944, Pollack set out on his own Over thenext two decades, he established himself as anoutstanding litigator

On June 12, 1967, after almost 40 years as apracticing attorney, Pollack was appointed as

U.S district judge for the Southern District of

New York by President LYNDON B JOHNSON

Pollack authored more than 150 opinions

relat-ing to securities-regulation matters and many

other issues

In 1983, Pollack took senior (or semiretired)status As a senior judge, he played a prominent

role in major Wall Street disputes in the late

1980s and early 1990s, including the trials of

JUNK BOND salesmen Michael R Milken and

Ivan F Boesky When the Drexel bankruptcy

occurred, Pollack’s lifelong experience made

him the logical choice to handle the resulting

avalanche of complaints and actions

In 1989, Pollack approved a settlement thatgave control over Drexel’s continued operation

to high-level SEC officials The settlement

required Drexel to cooperate in the

govern-ment’s investigation of former employees and to

cut all ties with former Drexel executive Milken

In 1991, Pollack authorized the payment of

$46.8 million to 80,000 persons who claimed

losses from Boeksy’s insider trading and

securi-ties FRAUD That same year, Pollack approved

the settlement of a class action suit by Drexel

creditors who had been defrauded by the firm’s

securities transactions

Pollack also presided over the 1993 trial ofcorporate raider Victor Posner Because Posner

had conducted illegal takeovers and had had

pre-vious criminal dealings with Milken and Boesky,

Pollack barred him from ever again heading a

publicly traded company Judge Pollack barred

the Posners under the Securities Law

Enforce-ment Remedies Act of 1990 (Remedies Act) fromacting as officers and directors of any publiccompanies (Pub L No 1-429, 104 Stat 931)

As a senior judge, Pollack has been edged as a troubleshooter who is quick to helpfellow judges who have fallen behind in theirwork and to advise younger judges on how toaddress courtroom problems In addition to afull schedule in the Southern District of NewYork, Pollack also hears cases in Houston, Texas,during part of the year

acknowl-Pollack was the recipient of the Edward J

Devitt Award for Distinguished Service to

Jus-POLLACK, MILTON 21

Milton Pollack.

AP/WIDE WORLD PHOTOS

1939–45 World War II

1950–53 Korean War

1961–73 Vietnam War

◆

◆

◆

1906 Born, New York City

1928 Earned J.D from Columbia Law Schol

1967 Appointed U.S district judge for the Southern District

of New York

1983 Took senior (semiretired) status on the court

1986 Ivan Boesky pled guilty to a criminal charge, paid $100 million fine and was barred from securities trading for life

1988 Drexel Burnham Lambert pled guilty to insider trading, stock manipulation and falsified records, resulting

in $640 million fine

1993 Presided over trial of Victor Posner and barred him from ever heading a publicly traded company

1997 Approved investor class-action settlements stemming from 1980s insider-trading complaints

2001 Dismissed shareholder suits against Morgan Stanley Dean Witter & Co in scathing criticism of plaintiffs

2002 Chosen by federal panel to handle investor claims in class-action settlement against Merrill Lynch & Co.

tice in 1995 The following year, he was praisedfor his handling of the liquidation of DrexelBurnham Lambert assets In a 2000 interviewfor the federal courts’ newsletter, Pollack statedhis enjoyment of taking over long-delayed cases,particularly securities and trust cases, and get-ting them settled In 2003, Pollack continued towork on cases of major importance.

FURTHER READINGS

Arkin, Stanley S., and Kenneth P Coleman 1991 “Judicial

Activism as an Art: Drexel Case.” New York Times (June 7).

Brockway, Kim 1998 “College Honors Noted Alumni for

Exceptional Career Achievements.” Columbia University

Record (March 6).

Feerick, John D., and Milton Pollack 1994.“Remarks Delivered

on the Occasion of the Presentation of the Stein Prize to the Honorable Milton Pollack on October

Fordham-26, 1994.” Fordham Urban Law Journal 22 (fall).

Oakes, James L 1989 “Grace Notes on ‘Grace Under

Pres-sure’.” Ohio State Law Journal 50 (June).

Rapoport, Michael 1996 “Drexel’s Final Days.” Minneapolis

Star Tribune (March 28).

Riencke, Mary, and Nancy Lichterman, eds 1979 The

Amer-ican Bench: Judges of the Nation 2d ed Minneapolis:

Reginald Bishop Forster.

Robbins, David E., and Michael H Stone, panelists New York Stock Exchange, Inc Symposium on Arbitration in

the Securities Industry 1995 “Discovery.” Fordham Law

Review 63 (April).

CROSS-REFERENCES

Bonds.

❖POLLAK, WALTER HEILPRIN

Walter Heilprin Pollak was a lawyer and civil ertarian who is credited with convincing theU.S Supreme Court to first adopt the INCORPO- RATION DOCTRINE, which the Court has used toextend most of the provisions of the BILL OF

lib-RIGHTS to limit actions by state and local ernments Pollak is also remembered for hisarguments for the defense in POWELL V ALABAMA,287 U.S 45, 53 S Ct 55, 77 L Ed 158(1932), which extended the RIGHT TO COUNSEL

gov-in death penalty cases to state crimgov-inal trials.Pollak was born on June 4, 1887, in Summit,New Jersey He graduated from Harvard Univer-sity in 1907 and from Harvard Law School in

1910 He joined the prominent New York Citylaw firm of Sullivan and Cromwell, but in 1912

he left for the smaller firm of Simpson, Warren,and Cardozo Pollak worked with BENJAMIN N CARDOZObefore Cardozo left in 1914 to become

a New York Court of Appeals judge FollowingCardozo’s departure and the retirement ofanother partner, Pollak became partner in thefirm of Englehard and Pollak

Pollak was an ardent supporter ofFREEDOM

OF SPEECHand the Bill of Rights He appealed tothe U.S Supreme Court Benjamin Gitlow’s con-viction under New York’s Criminal Anarchy Act(N.Y Penal Law §§ 160–161 [repealed 1967]) for

“advocacy of criminal anarchy,” which wasdefined as the advocacy of “the duty, necessity

or propriety of overthrowing or overturningorganized government by force or violence”(GITLOW V NEW YORK, 268 U.S 652, 45 S Ct

625, 69 L Ed 1138 [1925]) Gitlow was victed and sentenced to a prison term of five toten years for distributing a left-wing pamphlet.Pollak argued that the First Amendment’sguarantees of freedom of speech and FREEDOM

con-OF THE PRESS were applicable to the statesbecause the DUE PROCESS CLAUSEof the FOUR- TEENTH AMENDMENT protects “liberty” fromabridgement by the states By incorporating the

FIRST AMENDMENT provisions into the

Four-22 POLLAK, WALTER HEILPRIN

“M AN IS A FREE

AGENT TO USE HIS

TONGUE AND PEN ,

1910 Earned LL.B from Harvard Law School

1912 Joined law firm of Simpson, Warren, and Cardozo

1914 Formed law firm of Englehard and Pollak

1925 Argued Gitlow

v New York before

the Supreme Court;

lost appeal, but Court adopted his incorporation argument

1927 Argued Whitney v California before Supreme Court

1932 Convinced Supreme Court

to set aside convictions of

“Scottsboro Boys”

in Powell v Alabama

1940 Died, New York City

1914–18 World War I

1931 Wickersham Commission released its report

1939–45 World War II

1935 Supreme Court set aside the convictions resulting from the “Scottsboro Boys” retrials

teenth Amendment, states could not restrain the

free speech rights of persons such as Gitlow

Though the Court did not agree with Pollakthat the New York law was unconstitutional, it

did adopt his incorporation argument, holding

that freedom of speech and the press “are among

the most fundamental personal rights and

‘liber-ties’ protected by the due process clause of the

Fourteenth Amendment from impairment by

the States.”

In Powell v Alabama, Pollak returned to the

Supreme Court to argue on behalf of the

“Scottsboro boys,” a group of young African

Americans sentenced to death for an alleged

sexual assault on two white women The

defen-dants had not been provided effective legal

counsel, and the trial had been a sham, evoking

a public outcry in the North Pollak convinced

the Court that the defendants had been denied

due process of law in violation of the

Four-teenth Amendment

Pollak also served on the staff of theNational Commission of Law Observance and

Law Enforcement, which came to be known as

the WICKERSHAM COMMISSION In 1931 the

commission issued its fourteen-volume report,

which revealed disturbing features of the U.S

criminal justice system It brought to public

attention the use of “third-degree” interrogation

methods against criminal suspects and the need

for more professional police forces Pollak

helped write the report on the third degree and

a staff report that demonstrated that

prosecu-tors in a particular case had condoned and

prob-ably encouraged the giving of false testimony in

convicting the defendant The Supreme Court

later agreed with Pollak’s conclusion on this

case In Mooney v Holohan, 294 U.S 103, 55 S.

Ct 340, 79 L Ed 791 (1935), the Court ruledthat a state has denied due process if it deceivesthe trial judge and jury by presenting evidenceknown to be perjured

Pollak died on October 2, 1940, in New YorkCity

FURTHER READINGS

Pollak, Louis H 1991 “Thomas I Emerson: Pillar of the Bill

of Rights.” Yale Law Journal 101 (November).

——— 1982 “Advocating Civil Liberties: A Young Lawyer

Before the Old Court.” Harvard Civil Rights–Civil

Liber-ties Law Review 17 (spring).

POLLING THE JURY

A practice whereby the jurors are asked ally whether they assented, and still assent, to the verdict; it consists of calling the name of each juror and requiring a declaration of his or her verdict before it is recorded.

individu-Polling can be accomplished by questioningthe jurors individually or by ascertaining the fact

of unanimous concurrence by general tions Once concurrence has been determined,the polling concludes

ques-If unanimous concurrence, when required,does not exist upon the poll, the jury can beeither discharged or ordered to resume furtherdeliberation

❖POLLOCK, FREDERICK

As a legal scholar and historian, Sir FrederickPollock was a leading figure in the moderniza-tion of English legal studies in the nineteenthcentury Born in London on December 10, 1845,Pollock was educated at Trinity College, Cam-bridge, admitted to the bar in 1871, and soon

1861–65 U.S Civil War

1871 Called

to English bar at Lincoln's Inn

1874 Started correspondence with Oliver Wendell Holmes

1883 The Land Laws published

1883–1903 Taught at Oxford University

1885 Became editor of the

Law Quarterly Review

1895 Appointed editor of

the Law Reports; History

of English Law Before the Time of Edward I first

published

1887 The

Law of Torts

Died, London, England

1939–45 World War II

1922 Essays in the

Law published

◆

rose to eminence in his field as an author ofgroundbreaking histories and textbooks Hetaught law in his native England and lecturedbriefly in the United States in 1903 and 1912.

Besides his public contributions to legal ship, Pollock is remembered for his decades-long private correspondence with U.S SupremeCourt justice OLIVER WENDELL HOLMES JR.,which was published posthumously

scholar-Beginning in the 1870s, Pollock wrote aseries of books that marked a turning point inEnglish legal scholarship His approach was dif-ferent from that of his predecessors, who hadbuilt their work on specific applications of thelaw Pollock emphasized the law’s underlyingprinciples Written in a direct, clear style, works

such as Principles of Contract at Law and in Equity (1876) and a companion work The Law of Torts (1887) became the standard legal texts for

many years; more importantly, they served asmodels for other textbooks and thus helped tomodernize English LEGAL EDUCATION

Pollock possessed enormous talent andenergy for scholarly work In 1883 he beganteaching at Oxford University as a professor of

JURISPRUDENCE That same year he published

his classic work, The Land Laws, and two years later he became the first editor of the Law Quar- terly Review Over the next three decades, he published a number of books, including Spin- oza, His Life and Philosophy (1880); Possession in the Common Law (with Robert S Wright) (1888); A First Book of Jurisprudence (1896); The Expansion of the Common Law (1904); The Genius of the Common Law (1912) and The League of Nations (1920) Many of his books were reprinted several times, and his History of English Law Before the Time of Edward I (with

FREDERIC W MAITLAND) (1895; rev ed 1898) isstill often cited by legal scholars

Contemporary law interested Pollock asmuch as LEGAL HISTORY, and he played animportant role in reforming the English legalsystem He immersed himself in public service,variously holding positions as a member of the

PRIVY COUNCIL, judge of the Admiralty Court

of the Cinque Ports, King’s Counsel, and man of the Royal Commission on the PublicRecords In 1895 he was appointed editor of theLaw Reports, charged with overseeing the pro-duction of reports on judicial opinions, andremained in that position for forty years Suchwas his stature in the legal profession that evenjudges deferred to him

chair-Among Pollock’s many admirers was hisfriend, Justice Holmes The British law professorand the U.S Supreme Court justice carried on acorrespondence for sixty years The letters con-tain discussions of the legal issues of the day,descriptions of their lives, and, at least byHolmes, mischievous portraits of their contem-poraries Each man admired the other’s nationallegal system and his thinking: Pollock appar-ently borrowed ideas from Holmes for the firstclear formulation of the doctrine of relativetitle—a concept related to ownership—in the1880s The correspondence was published as

The Holmes-Pollock Letters, 1874–1932 (1961).

Pollock died in London on January 18, 1937

FURTHER READINGS

Gordley, James, and Ugo Mattei 1996 “Protecting

Posses-sion.” American Journal of Comparative Law 44 (spring) Howe, Mark De Wolfe, ed 1994 Holmes-Pollock Letters: The

Correspondence of Mr Justice Holmes and Sir Frederick Pollock, 1874–1932 Littleton, Colo.: F.B Rothman.

Hudson, John, ed 1996 The History of English Law:

Cente-nary Essays on ‘Pollock and Maitland.’ New York:

Pub-lished for the British Academy by Oxford Univ Press Vandevelde, Kenneth J 1991 “The Modern Prima Facie Tort

Doctrine.” Kentucky Law Journal 79 (spring).

POLLOCK V FARMERS’ LOAN & TRUST CO.

A 5–4 decision of the Supreme Court, Pollock v Farmers’ Loan & Trust Co., 157 U.S 429, 15 S.Ct.

673, 39 L.Ed 759, on rehearing, 158 U.S 601, 15

S Ct 912, 39 L Ed 1108 (1895), declared theIncome Tax Act of 1894 unconstitutional andultimately led to the enactment of the SIXTEENTH AMENDMENT, authorizing the imposition of anincome tax by the federal government

Charles Pollock—a Massachusetts holder employed by the New York defendant,Farmers’ Loan & Trust Co.—appealed to theU.S Supreme Court after unsuccessfully suingthe defendant in federal courts to prevent itfrom breaching its fiduciary duty by filingreturns for and paying a federal income tax Thetax was levied upon the profits that the defen-dant earned, including interest it received fromincome-producing real estate and bonds of NewYork City Pollock alleged that such a tax,authorized by the Income Tax Act of 1894, wasunconstitutional because it was a direct taxupon the property itself (28 Stat 509) Article I,Section 2, of the U.S Constitution mandatedthat all direct taxes be apportioned among theseveral states and Section 8 of the same article

MAY SUPPLEMENT

AND ENLARGE THE

LAW AS THEY FIND

required that direct taxes be uniform Pollock

argued and the Supreme Court agreed that this

tax did not satisfy either requirement The tax

was levied upon the rents or income of real

property held by particular corporations and

businesses and was, in effect, a direct tax upon

the real property itself

Pollock also raised the issue as to the validity

of the tax as levied upon New York City bonds

The Court accepted the reasoning that since

states were powerless to tax the operations or

property of the United States, the United States

had no constitutional power to tax either state

instrumentalities or property

The Supreme Court ruled that the IncomeTax Act of 1894 violated the Constitution and

that the taxes imposed pursuant to it were void

It reversed the decree of the federal circuit court

and remanded the case

As a result of the decision in Pollock v ers’ Loan & Trust Co., Congress recognized the

Farm-need for a constitutional provision permitting

the levy of federal income tax without

APPOR-TIONMENT among the several states It took,

however, eighteen more years before there was

sufficient support for the passage of the

Six-teenth Amendment

POLLS

The place where voters cast their ballots Heads;

individuals; persons singly considered.

An objection to a particular juror is called a

challenge to the poll, as distinguished from a

challenge to the array or panel, which is

opposi-tion to the jury as an entity, based on a universal

defect among the jurors

POLLUTION

The contamination of the air, water, or earth by

harmful or potentially harmful substances.

The U.S environmental movement in the1960s emerged from concerns that air, water,

and soil were being polluted by harmful

chemi-cals and other toxic substances During the

industrial revolution of the nineteenth century,

the mass production of goods created harmful

wastes, much of which was dumped into rivers

and streams The twentieth century saw the

pop-ular acceptance of the automobile and the

inter-nal combustion engine, which led to the

pollution of the air Rapidly expanding urban

centers began to use rivers and lakes as

reposito-ries for sewage

Land pollution involves the depositing ofsolid wastes that are useless, unwanted, or haz-ardous Types of solid waste include garbage,rubbish, ashes, sewage-treatment solids, indus-trial wastes, mining wastes, and agriculturalwastes Most solid waste is buried in sanitarylandfills A small percentage of municipalitiesincinerate their refuse, while composting israrely employed

Modern landfills attempt to minimize lution of surface and groundwater They arenow located in areas that will not flood and thathave the proper type of soil Solid wastes arecompacted in the landfill and are vented toeliminate the buildup of dangerous gases Haz-ardous wastes, including toxic chemicals andflammable, radioactive, or biological sub-stances, cannot be deposited in landfills, and themanagement of these wastes is subject to federaland state regulation The federal government’sResource Conservation and Recovery Act (42U.S.C.A § 6901 et seq.) is a comprehensive reg-ulatory statute that creates a “cradle to grave”

pol-system of controlling the entire hazardouswaste life cycle

Nuclear wastes are especially troublesome

Congress passed the Nuclear Waste Policy Act of

1982 (42 U.S.C.A §§ 10101–226), whichdirected the DEPARTMENT OF ENERGY to for-mally begin planning the disposal of nuclearwastes and imposed most of the costs of disposal

on the NUCLEAR POWERindustry Since 1986 theDepartment of Energy has been unsuccessful infinding an acceptable site Yucca Mountain,Nevada, is the only place earmarked for a sitestudy

POLLUTION 25

Garbage is dumped

in a landfill located near Sumpter Township, Michigan Modern landfills are engineered to minimize groundwater contamination, and through federal and state regulation are off limits to the disposal of hazardous materials such as toxic or radioactive substances.

AP/WIDE WORLD PHOTOS

Solid waste pollution has been reduced byrecovering resources rather than burying them.

Resource recovery includes massive systems thatburn waste to produce steam, but it also includesthe recycling of glass, metal, and paper fromindividual consumers and businesses The elim-ination of these kinds of materials from landfillshas prevented pollution and extended theperiod during which landfills can receive waste

Land pollution also involves the tion of chemicals in the ground Modern agri-culture, which has grown dependent onchemical fertilizers and chemicals that killinsects, has introduced substances into the soilthat kill more than pests For many years thechemical DDT was routinely sprayed on crops

accumula-to control pests It was banned when scientistsdiscovered that the chemical entered the foodchain and was harming wildlife and possiblyhumans

AIR POLLUTION is regulated by the federalgovernment The Clean Air Act was originallyenacted in 1970 and was extensively amended in

1977 and again in 1990 (42 U.S.C.A

§§ 7401–7626; Pub L No 95-95 [1977 ments]; Pub L No 101-549 [1990 amend-ments]) Under its provisions, every stationaryand mobile pollution source must comply withemission standards as a means of cleaning upthe ambient air quality in the area This hasmeant that automobile emission control systemshave been created and improved to meet morestringent air quality standards Coal-burningelectric power plants have been required toinstall filtration systems on their smokestacks,and manufacturing facilities have had to installequipment that “scrubs” polluted air clean

amend-WATER POLLUTION has existed longer thanany other type of pollution Depositing liquidand solid wastes in rivers, streams, lakes, andoceans was convenient and inexpensive for acompany or municipality, but it eventuallydestroyed the ecosystems found in the water

Many large rivers became nothing more thansewers Most troubling was the polluting ofgroundwater, creating serious health hazards forthose people who drank water containing toxicsubstances

The federal Clean Water Act (CWA) wasoriginally enacted in 1972 and then amended in

1977 and 1987 (33 U.S.C.A §§ 1251–1387; Pub

L No 95-217 [1977 amendments]; Pub L No

100-4 [1987 amendments]) The CWA seeks toeliminate the “discharge of pollutants into navi-

gable waters,” to make water safe for people tofish and swim in, and to end the “discharges oftoxic pollutants in toxic amounts.” The CWAseeks to accomplish these goals through a vari-ety of regulatory strategies

CROSS-REFERENCES

Environmental Law; Environmental Protection Agency; Land-Use Control; Solid Wastes, Hazardous Substances, and Toxic Pollutants.

POLYGAMY

The offense of willfully and knowingly having more than one wife or husband at the same time The offense of willfully and knowingly entering into a second marriage while validly married to another individual is bigamy.

The Crime

The law in every state prohibits a man or awoman from being married to more than oneliving person at a time The crime of havingmore than one current spouse is called eitherbigamy (having two spouses) is a subset of thecrime of polygamy (having more than onespouse), and the law makes no practical distinc-tion between the two Even in states that sepa-rately criminalize both polygamy and bigamy,either crime is committed when a married per-son first enters into an unlawful marriage with asecond person However, additional marriagesbeyond the second would support prosecutionfor additional criminal counts and possibly alonger sentence

Most states base their polygamy laws on the

MODEL PENAL CODE section 230.1, which vides that a person is guilty of the third-degreefelony of polygamy if he or she marries orcohabits with more than one spouse at a time inpurported exercise of the right of plural mar-riage The crime is punishable either by a fine,imprisonment, or both, according to the law ofthe individual state and the circumstances of theoffense The crime of polygamy is deemed tocontinue until all COHABITATION with andclaim of marriage to more than one spouse ter-minate Polygamy laws do not apply to ALIENS

pro-who are temporarily visiting the United States,provided that polygamy is lawful in their coun-try of origin

The existence of a valid marriage enteredinto by the defendant prior to the second validmarriage is an essential element of the offense inevery jurisdiction No particular type of cere-

mony is required for the first or subsequent

marriage before someone can be prosecuted for

polygamy Even persons who satisfy the

require-ment for a COMMON-LAW MARRIAGE can be

prosecuted for entering a subsequent marriage

that itself is either another common-law

mar-riage or a traditional marmar-riage

Cohabitation is not typically a requisite ment of the offense Merely entering into a sec-

ele-ond marriage with knowledge that one is

currently married to another living person will

support an indictment for polygamy An

indict-ment for polygamy will not be found unlawful

even if the defendant offers proof that his or her

first marriage was a voidable marriage, or one

that is valid until annulled If neither party to a

VOIDABLEmarriage successfully voids the

mar-riage by obtaining an ANNULMENT, then the

remarriage of either constitutes polygamy

Ordinarily the state in which the mous marriage occurred has jurisdiction over

polyga-prosecution of the crime Some statutes,

how-ever, provide that the accused may be convicted

in the state where the polygamous cohabitation

takes place, even though the marriage occurred

elsewhere For example, California law provides

that “when the second marriage took place out

of this state, proof of that fact, accompanied

with proof of cohabitation thereafter in this

state, is sufficient to sustain the charge.” Cal Pen

Code § 281

Defenses

Under certain statutes it is not consideredpolygamous for an individual to remarry after a

certain period of time has elapsed during which

the former spouse was absent and thought to be

dead For example, California exempts from its

law “any person by reason of any former

mar-riage whose husband or wife by such marmar-riage

has been absent for five successive years without

being known to such person within that time to

be living.” Cal Pen Code § 282 Remarriage

before the expiration of the statutory period,

however, constitutes polygamy, even if the

miss-ing spouse later turns out to be dead, since the

first marriage is still regarded as valid until the

statutory period lapses

In some jurisdictions a sincere and able belief that a valid DIVORCE has been

reason-granted is a defense to polygamy In most

juris-dictions, however, it is not a defense It is

some-times said that polygamy is a strict-liability

offense because the prosecution need not prove

a criminal intent to obtain a conviction, anddefendants may not rely on erroneous legaladvice, ignorance, or mistake law as a defense

However, prosecutors are more likely to pursueindictments against persons who knowinglyenter into a polygamous marriage than againstpersons who enter a second marriage under a

GOOD FAITHbelief that their first marriage hasbeen nullified

As mentioned above, a person who fully annuls his or her first marriage beforeentering a second marriage cannot be prose-cuted for polygamy The same rule applies topersons who successfully have their marriagedissolved by divorce or nullified for any otherreason before entering the second marriage

success-However, a divorce or annulment obtained sequent to a second polygamous marriage is nodefense Nor will a solemnly held religious beliefthat it is not unlawful to have more than onespouse serve as a defense to an indictment forpolygamy In affirming the criminal conviction

sub-of a Mormon for practicing polygamy, the U.S

Supreme Court rejected the argument that aUtah law prohibiting polygamy violated eitherthe Establishment or Free Exercise Clauses ofthe FIRST AMENDMENT to the federal Constitu-

tion (Reynolds v United States, 98 U.S (8 Otto)

145, 25 L Ed 244 (1878)

Origins of Anti-Polygamy Laws

The ban on polygamy originated in English

COMMON LAW In England polygamy was diated because it deviated from Christiannorms; marriage, it was believed, properlyexisted only between one man and one woman

repu-In 1866, for example, in the seminal case of Hyde

POLYGAMY 27

Tom Green, shown here with his five wives and 25 children, was found guilty of four counts

of bigamy and one count of failure to pay child support in May 2001 The case marked Utah’s first polygamy trial in 25 years.

AP/WIDE WORLD PHOTOS

v Hyde, 1 L.R.-P & D., an English court

remarked that “the law of [England was] adapted to the Christian marriage, and it iswholly inapplicable to polygamy.” During thenineteenth century, English and U.S law did notrecognize polygamous marriage in any form

Only in the late twentieth century has eithernation given limited legal recognition to polyga-mous partners from other countries

Anti-polygamy laws in the United States alsosprang from religious conflict In the mid-1800s,widespread public hostility arose toward thepractice of polygamy by members of the Church

of Jesus Christ of Latter-day Saints, known asMormons A small religious sect in the territory

of Utah, the Mormons believed that theirfounder and prophet, Joseph Smith, had a divinerevelation in 1843 that called for men to marrymore than one woman; in 1852 the churchannounced that the practice was religiouslysuperior to monogamy This position angeredcritics throughout the country, ranging fromreligious leaders to novelists, editorialists, andparticularly politicians In 1856 the Republicanparty’s first national platform denouncedpolygamy and SLAVERY as “those twin relics ofbarbarism.”

Legal controversies over the propriety ofprohibiting polygamous marriages persisted inthe United States for 150 years and wereexpected to continue as long as sects within theMormon religion continued to openly supportthe practice of plural marriage The Church ofJesus Christ of Latter-day Saints disavowedpolygamy in 1890 and excommunicates thosemembers who practice plural marriage

FURTHER READINGS

Altman, Irwin 1996 “Polygamous Family Life: the Case of

Contemporary Mormon Fundamentalists.” Utah Law

Review (spring).

Dane, Perry 1996 “The Public, the Private, and the Sacred:

Variations on a Theme of Nomos.” Cardozo Studies in

Law and Literature 8 (spring-summer).

Forbes, Stephanie 2003 “Why Just Have One?: An tion of the Anti-polygamy Laws Under the Establish-

Evalua-ment Clause.” Houston Law Review 39 (spring).

Also known as a “lie detector,” the polygraphhas a controversial history in U.S law Firstdeveloped in the late nineteenth century, itsmodern incarnation is an electromechanicaldevice that is attached to a subject’s body during

an interview The discipline of polygraphy isbased on the theory that by recording involun-tary physiological changes in the subject, thepolygraph yields data that can be interpreted todetermine whether the subject is telling thetruth Supporters of the scientific validity of thepolygraph claim that results are approximately

90 percent accurate For much of the twentiethcentury, however, polygraph evidence was inad-missible in criminal cases on grounds of unreli-ability Polygraph evidence was admissible incivil cases, however, and it was also used widely

in law enforcement, government, and industry.Polygraphy uses a variety of formats Untilthe 1950s the format was the relevant/irrelevant(R/I) test; it rested on the now discredited beliefthat a subject produces a specific identifiablephysiological response when lying The R/I testhas been replaced by the control question (CQ)format, the only format routinely used in foren-sic tests Typically, a trained examiner fits a sub-ject with sensors to measure respiration, heartrate and blood pressure, and perspiration, whichthe polygraph records using pens on graphpaper The examiner asks a series of questions,including control questions that are designed toprovoke anxiety and denial Later, anotherexaminer compares these answers with answerspertaining to the matter at hand This is known

as numerical CQ testing So-called global CQtesting includes a more subjective component:one examiner scores the test while also factoring

in the subject’s observable physical responses,such as movement, expression, and voice

In U.S courts, the use of the polygraph wasfirst addressed in 1923 In refusing to admitpolygraph evidence in a murder case, the Court

of Appeals for the District of Columbia created

a legal standard that would last for nearly 70

years (Frye v United States, 54 App D.C 46, 293

F 1013 [1923]) This standard came to be

known as the Frye rule, or general acceptance

test To be admissible in court, novel SCIENTIFIC EVIDENCEfirst must have gained general accept-ance in its scientific field

The Frye rule applied broadly to all scientific

evidence, including polygraph evidence Otherappellate courts followed the court’s standardthroughout most of the century, primarily

because polygraphy never gained widespread

acceptance among scientists Nonetheless,

poly-graph evidence was used in civil lawsuits, and

police agencies, businesses, and government

offices continued to use the polygraph regularly

to provide evidence, screen job applicants, and

investigate security risks

Advances in polygraphy helped spur a cial reevaluation, but more important was the

judi-adoption of the FEDERAL RULES OF EVIDENCEin

the 1970s Rule 702 set an important new

stan-dard for the admission of scientific evidence:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education, may testify thereto in the form of

an opinion or otherwise.

Over the next two decades, appellate courtsauthorized use of polygraph evidence in a few

state courts, a trend followed by the U.S Court

of Appeals for the Eleventh Circuit and the

mil-itary courts Then, in 1993, in a case not

specifi-cally related to the polygraph, the U.S Supreme

Court held that Rule 702 replaced the Frye test

(Daubert v Merrell Dow Pharmaceuticals, Inc.,

509 U.S 579, 113 S Ct 2786, 125 L Ed 2d 469)

In essence, the Court said that the standard of

general scientific acceptance was not as

impor-tant as whether EXPERT TESTIMONY can assist

jurors Soon thereafter, several federal courts

reconsidered their long-standing ban on

poly-graph evidence and determined that they now

had the discretion to permit its introduction at

trial

Congress also reexamined the use of thepolygraph in industry In 1988, lawmakers

responded to civil liberty concerns about the

abuse of polygraph testing in private industry by

passing the Employee Polygraph Protection Act

(29 U.S.C.A §§ 2001 et seq.) The law bars

pre-employment testing in banking, retail, and other

private industries and also makes it illegal for

employers to fire, discriminate against, or

disci-pline employees who refuse to submit to

poly-graph tests The act exempts government

employers, private industry when an employee

is under investigation for economic injury

suf-fered by the employer, and all security services

and industries that manufacture, distribute, or

dispense controlled substances

In military trials, the situation was different

In United States v Scheffer, 523 U.S 303, 118 S.

Ct 1261, 140 L Ed 2d 413 (1998), the SupremeCourt addressed the claim of airman Edward G

Scheffer that prohibiting the introduction of

polygraph evidence during his COURT-MARTIAL

(military criminal trial) violated his tional rights Under Military Rule of Evidence

constitu-707, polygraph evidence is not allowed in martial proceedings So, although Scheffer, whowas accused of, among other things, taking ille-gal drugs, passed a polygraph, it was inadmissi-ble as evidence A federal court of appealsreversed the court-martial, stating that exclud-ing the polygraph evidence did, in fact, violateScheffer’s right to present a defense as guaran-teed by the SIXTH AMENDMENT Upon review,the Supreme Court upheld Military Rule of Evi-dence 707 In the opinion of the Court, “Stateand federal governments unquestionably have alegitimate interest in ensuring that reliable evi-dence is presented to the trier of fact in a crimi-nal trial.” However, “there is simply noconsensus that polygraph evidence is reliable.”

court-FURTHER READINGS

Arendell, Robert L., and Stephen C Peters 1996 “Revisiting

the Admissibility of Polygraph Evidence After Daubert.”

Colorado Lawyer 25 (February).

McCall, James R 1996 “Misconceptions and Reevaluation—

Polygraph Admissibility After Rock and Daubert.”

Uni-versity of Illinois Law Review.

Segrave, Kerry 2004 Lie Detectors: A Social History

Jeffer-son, N.C.: McFarland.

Sleek, Scott 1998 “Psychologists Debate Merits of the

Poly-graph.” APA Monitor (June).

PONZI SCHEME

A fraudulent investment plan in which the ments of later investors are used to pay earlier investors, giving the appearance that the invest- ments of the initial participants dramatically increase in value in a short amount of time.

invest-A Ponzi scheme is a type of investment FRAUD

that promises investors exorbitant interest if theyloan their money As more investors participate,the money contributed by later investors is paid tothe initial investors, purportedly as the promisedinterest on their loans A Ponzi scheme works inits initial stages but inevitably collapses as moreinvestors participate

A Ponzi scheme is a variation of illegal mid sales schemes In a pyramid sales plan, aperson pays a fee to become a distributor Oncethe person becomes a distributor, he receivescommissions not only for the products he sellsbut also for products sold by individuals that he

pyra-PONZI SCHEME 29