Supreme Court approved amendments to the Federal Rules ofCIVIL PROCEDUREthat brought admiralty and maritime procedural rules into accord with those used in other civil suits.. Supreme Co
Trang 1require the appointment of counsel Two adjacent districts may be combined to reach this total
Each defender organization submits to the director of the Administrative Office an annual report of its activities along with a proposed budget Because they rely on grants and not regular funding, community defender organiza-tions submit grant proposals to the Administra-tive Office for the coming year The director then submits the proposed budgets and grants
to the Judicial Conference of the United States for approval After budgets are determined, the director pays the defender organizations The director also compensates private counsel appointed to defend individuals charged in federal court
In wake of the SEPTEMBER 11TH ATTACKS in
2001, the Administrative Office relied on its newly created Office of Emergency Prepared-ness This office worked with courts around the United States to develop crisis response plans to deal with emergency evacuations, relocations, and the continuation of court business The office also arranged for the testing of court-houses for hazardous materials
FURTHER READINGS Administrative Office of the U.S Courts Website Available online at http://www.uscourts.gov/adminoff.html (accessed June 25, 2009).
U.S Government Manual Website Available online at http://
www.gpoaccess.gov/gmanual/ (accessed June 25, 2009).
CROSS REFERENCES District Court; Federal Courts; Justice Department;
Magistrate.
ADMINISTRATIVE PROCEDURE ACT OF 1946
Since its original enactment in 1946, the Administrative Procedure Act (APA), 5 U.S.C.A
§§ 501 et seq., has governed the process that federal administrative agencies follow The statute applies to all federal agencies except for those that are expressly exempted from its provisions
Despite the broad nature of the act, however, it allows flexibility among the various agencies in carrying out their responsibilities
Although a number of administrative agen-cies were created during the nineteenth and early twentieth centuries, no federal law at the time governed the conduct of these agencies
Legislation that was enacted during theNEW DEAL
era of the 1930s established a new series of administrative agencies In 1936 President
FRANKLIN D.ROOSEVELTestablished the President’s Committee on Administrative Management The committee’s report found that agencies were “irresponsible” and that they had been given “uncoordinated powers.” Moreover, the report characterized administrative agencies as a
“headless ‘fourth branch’ of government.” The committee found that the laws that created administrative agencies failed to distin-guish between the legislative and executive functions of those committees It recommended that each of the existing administrative agencies
be moved into the EXECUTIVE BRANCH of the government and that the judicial powers of the agencies be limited Members of Congress and many commentators at the time disagreed with the committee’s findings At the center of the debate was the need to maintain aSEPARATION OF POWERS with respect to the work of federal agencies
In 1939 President Roosevelt established the Attorney General’s Committee on Administra-tive Procedure The committee was charged with the responsibility of reviewing criticisms of the federal administrative processes and formu-lating recommendations for improvement in these processes The committee issued its recom-mendations in 1941 in a detailed report of almost
500 pages Legislation was drafted based upon the recommendations of the 1941 report, but the U.S entrance intoWORLD WAR IIinterrupted the enactment of the statute After the war, the legislation was reintroduced, and following a series of compromises, Congress enacted the Administrative Procedure Act in 1946
In 1947 theDEPARTMENT OF JUSTICEissued the Attorney General’s Manual on the Administrative Procedure Act This document explains how the act can be applied and remains valuable as a research tool in the early 2000s Some of the information in this manual provides analysis that the courts had not considered as
of 2009
The purpose of the APA is to provide minimum procedural standards that federal administrative agencies must follow It distin-guishes between two major forms of adminis-trative functions: agency rulemaking and agency adjudication Administrative rulemaking is analogous to LEGISLATIVE ACTS, whereas ADMINIS-TRATIVE ADJUDICATION is analogous to judicial
118 ADMINISTRATIVE PROCEDURE ACT OF 1946
Trang 2decision This distinction contained in the APA
has long been the subject of scholarly debate
Some argue that such a dichotomy is
unneces-sarily rigid and that it might not always allow for
the most appropriate procedures for a particular
agency Supporters of the distinction between
rulemaking and adjudication contained in the
APA note that this distinction best represents the
basic functions of administrative agencies
The rulemaking provisions of the APA are
more detailed than those governing
adjudica-tions Most agencies engage in
notice-and-comment rulemaking, which is required as the
minimum rulemaking procedure under the
APA Under notice-and-comment rulemaking,
agencies are required to give the public advance
notice of the contents of a proposed rule and to
offer citizens an opportunity to express their
views of the proposed rule before the agency
Some agencies are required by the statutes that
created them to follow more stringent
stan-dards, whereby all of the agency’s actions during
rulemaking are conducted“on the record.” This
latter type of rulemaking is known as formal
rulemaking
The APA defines and governs only those
types of adjudications that are required by
statute to be conducted “on the record after
opportunity for an agency hearing.” If an
agency is required to conduct such a formal
adjudication under the APA, it must engage in a
proceeding that resembles a trial However, if
the agency is not required to conduct such a
hearing, the APA remains silent Accordingly,
an agency may adopt its own procedure for an
informal adjudication, so long as the agency
otherwise does not violate the U.S Constitution
or other law
Other provisions of the APA governJUDICIAL
REVIEW of agency actions and public access to
agency-created law and information emanating
from agencies The judicial-review provisions
under the APA have given rise to the greatest
amount of scholarship regarding federal
admin-istrative law, although these provisions are
contained in only six sections of the APA
Courts have similarly grappled with judicial
review of agency actions For instance, Chevron
U.S.A., Inc v National Resources Defense
Council, Inc (467 U.S 837, 104 S Ct 2778,
81 L Ed 2d 694[1984]) has been cited more often
than any other decision in the history of the U.S
Supreme Court In Chevron, the U.S Supreme
Court held that interpretive decisions of admin-istrative agencies are entitled to substantial judicial deference In doing so, it enhanced the efficacy of administrative bodies in mitigating the transition costs of legislative law
The APA was designed to increase access to agency law by allowing the public to participate
in agencies’ decision-making process In 1966 Congress enacted the FREEDOM OF INFORMATION ACT, Pub L No 89-487, 80 Stat 250 (codified
as amended at 5 U.S.C.A § 552), which greatly increased the amount of government informa-tion that is available to the public Congress later enacted similar laws designed to make governmental decisions open to the public, including the PRIVACY ACT OF 1974, Pub L No
93-579, 88 Stat 1896 (codified as amended at
5 U.S.C.A § 552a); the Government in the Sunshine Act of 1976, Pub L No 94-409, 90 Stat 1241 (codified at 5 U.S.C.A § 552b); and the Electronic Freedom of Information Act of
1996, Pub L No 104-231, 110 Stat 2422 (codified as amended at 5 U.S.C.A § 552)
In 2005 the Judiciary Committee of the House of Representatives began collaborative research under the Administrative Law, Process and Procedure Project, intended to review the efficacy of federal ADMINISTRATIVE LAW AND PROCEDURE Several studies were commenced, including the solicitation of comments from public agencies, law schools, the AMERICAN BAR ASSOCIATION, and several other organizations
One important study, conducted by the CON-GRESSIONAL RESEARCH SERVICE (CRS) analyzed the outcome of cases appealed to all 12 U.S Circuit Courts of Appeal over a ten-year period that challenged administrative agencies or their rulemaking An interim report was presented
in a hearing before the Judiciary Committee’s Subcommittee on Commercial and Administra-tive Law in November 2006 The report, which contained more than 1,400 pages, summarized various recommendations and the proposed adoption of several of them Most addressed
a perceived need for more standardization
of procedures Following this, various federal agencies published notices in the Federal Register, outlining proposed changes and soli-citing comment, ultimately making changes as warranted
In November 2008, then-Democratic presi-dential candidate BARACK OBAMAcampaigned on
a platform promising more transparency in the
ADMINISTRATIVE PROCEDURE ACT OF 1946 119
Trang 3federal government and more access by the public to governmental records and policy-making efforts As one of his first official acts, President Barack Obama signedEXECUTIVE ORDER
13489 on January 21, 2009, which revoked the previous Executive Order 13233 from the Bush administration that had severely restricted release to the public of presidential records At that time, Obama signed two other memoranda focusing on transparency and openness One directed the attorney general to issue new guidelines to agencies for complying with the letter and spirit of the FOIA In the other, Obama asked three senior officials to produce
an“open government” directive within the first
120 days of the administration Said Obama,
“[T]he old rules said that if there was a defensible argument for not disclosing some-thing to the American people, then it should not be disclosed That era is now over Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.”
FURTHER READINGS Allen, William H 1986 “The Durability of the Administra-tive Procedure Act ” Virginia Law Review 235.
Bonfield, Arthur Earl 1986 “The Federal APA and State Administrative Law ” Virginia Law Review 297.
“Executive Order 13489 of January 21, 2009.” Presidential Documents, Federal Register, Vol 74, No 15, January
26, 2009 Also available at http://edocket.access.gpo.
gov/2009/pdf/E-9-1712.pdf Funk, William F., and Richard H Seamon 2009 Adminis-trative Law: Examples and Explanations 3d ed New York: Aspen Publishers, Inc.
Obama, Barack H 2009 Remarks to White House Senior Staff with the signing of Executive Order 13,489, January 21 Available at http://www.gpoaccess.gov/
presdocs/2009/DCPD200900012.htm.
Prepared Testimony of the Administrative Law, Process and Procedure Project, Before the Subcommittee on Commercial and Administrative Law of the Committee
on the Judiciary, House of Representatives, 109th Congress November 14, 2006 Available online at http://commdocs.house.gov/committees/judiciary/hju 30838.000/hju30838_0.htm; website home page: http://
judiciary.house.gov (accessed August 5, 2009.
Stein, Jacob A., et al 2003 Administrative Law New York:
LexisNexis/Matthew Bender.
ADMINISTRATOR
A person appointed by the court to manage and take charge of the assets and liabilities of a decedent who has died without making a valid will
When such a person is a male, he is called
an administrator, whereas a woman is called an administratrix An administrator c.t.a (cum testamento annexo, Latin for “with the will annexed”) is appointed by the court where the
TESTATOR had made an incomplete will without naming any executors or had named incapable persons, or where the executors named refuse
to act A public administrator is a public official designated by state law to perform the duties
of administration for persons who have died
INTESTATE
An executor differs from an administrator
in that he or she is named in the decedent’s will
to manage the estate If an executor dies while performing these duties, a court will appoint an administrator de bonis non cum testamento annexo (Latin for “of the goods not [already] administered upon with the will annexed”) to complete the distribution of the decedent’s estate This term is often abbreviated: adminis-trator d.b.n.c.t.a
ADMIRALTY AND MARITIME LAW
A field of law relating to, and arising from, the practice of the admiralty courts (tribunals that exercise jurisdiction over all contracts, torts, offenses, or injuries within maritime law) that regulates and settles special problems associated with sea navigation and commerce
History of Admiralty and Maritime Law The life of the mariner, spent far away from the stability of land, has long been considered an exotic one of travel, romance, and danger Stories
of pirates, mutinies, lashings, and hasty trials— many of them true—illustrate the peculiar, isolated nature of the maritime existence In modern times, the practice of shipping goods by sea has become more civil, but the law still gives maritime activities special treatment by acknowl-edging the unique conflicts and difficulties involved in high-seas navigation and commerce The roots of maritime law can be traced as far back as 900 B.C., which is when the Rhodian Customary Law is believed to have been shaped
by the people of the island of Rhodes The only concept in the Rhodian Laws that still exists is the law of jettison, which holds that if goods must
be thrown overboard (jettisoned) for the safety
of the ship or the safety of another’s property, the owner of the goods is entitled to compensation from the beneficiaries of the jettison
120 ADMINISTRATOR
Trang 4Codes enacted by medieval port cities and
states have formed the current U.S maritime
law The eleventh-century Amalphitan Code, of
the Mediterranean countries; the
fourteenth-century Consolato del Mare, of France, Spain,
and Italy; the twelfth-century Roll of Oleron,
from England; and the thirteenth-century Law
of Visby all drew on the customs of mariners
and merchants to create the uniqueSUBSTANTIVE
LAW of admiralty that still exists in the early
twenty-first century Procedural differences
existed between maritime cases and other civil
proceedings until 1966, when the U.S Supreme
Court approved amendments to the Federal
Rules ofCIVIL PROCEDUREthat brought admiralty
and maritime procedural rules into accord with
those used in other civil suits The substantive
maritime law, however, has remained intact
Admiralty and Maritime Law in the
Early 2000s
The terms admiralty and maritime law are
sometimes used interchangeably, but admiralty
originally referred to a specific court in England and the American colonies that had jurisdiction over torts and contracts on the high seas, whereas substantive maritime law developed through the expansion of admiralty court jurisdiction to include all activities on the high seas and similar activities onNAVIGABLE WATERS Because water commerce and navigation often involve foreign nations, much of the U.S
maritime law has evolved in concert with the maritime laws of other countries The federal statutes that address maritime issues are often customized U.S versions of the convention resolutions or treaties of international maritime law TheUNITED NATIONSorganizes and prepares these conventions and treaties through branches such as the International Maritime Organiza-tion and the InternaOrganiza-tional Labor OrganizaOrganiza-tion, which prepares conventions on the health, safety, and well-being of maritime workers
The substance of maritime law considers the dangerous conditions and unique conflicts
Admiralty law concerns personal injuries or loss of cargo suffered during accidents such as this one, in which the freighter Republic of Colombia was struck
by the Trans Hawaii BETTMAN/CORBIS ADMIRALTY AND MARITIME LAW 121
Trang 5involved in navigation and water commerce.
Sailors are especially vulnerable to injury and sickness owing to a variety of conditions, such
as drastic changes in climate, constant peril, hard labor, and loneliness Under the Ship-owners’ LIABILITY Convention (54 Stat 1693 [1939]), a shipowner may be liable for the maintenance and cure of sailors injured on ship and for injuries occurring on land Courts have construed accidents occurring during leave as being the responsibility of the shipowner because sailors need land visits in order to endure the long hours of water transportation
Assigning responsibility for onboard NEGLI-GENCE was a long-standing problem, but the
JONES ACT of 1920 (46 U.S.C.A § 688 et seq.) solidifies the right of sailors to recover from an employer for injuries resulting from the negli-gence of the employer, a master, or another crew member The 1920 Death on High Seas Act (46 App U.S.C.A § 761 et seq.) allows recovery by the beneficiaries of a sailor’s estate when the sailor dies by negligence, default, or wrongful act on the high seas“beyond a marine league from the shore of any state [territory or dependency].” A marine league is one-twentieth
of a degree of latitude, or three miles
Accidents suffered by nonmaritime persons
on docks, piers, wharfs, or bridges do not qualify for the application of maritime law principles
However, personal injuries suffered while indi-viduals were aboard a ship or as a result of an air-to-water airplane crash are considered within the jurisdiction of admiralty law
The Longshoremen’s and Harbor Workers’
Compensation Act (33 U.S.C.A § 901 et seq
[1927]) sets up a federal system to compensate injured maritime workers who do not sail
Through the Federal Office of Workers’ Com-pensation Programs, employees such as steve-dores (workers who load and unload ships) and ship service operators can receive compensation for injuries suffered in the course of their employment U.S sailors benefit from Title 46
of the U S Code, which sets a schedule for sailors’ earnings and the conditions of their contracts Title 46 also lists the qualifications for sailor employment (§§ 7301 et seq.), the hours and conditions of the employment (§§ 8104
et seq.), and the living conditions that must
be provided (§§ 11101 et seq.)
Federal laws also address the problems that beset ships and the life-or-death decisions made
by carriers The Carriage of Goods by Sea Act (46 U.S.C.A §§ 1300–1315 [1936]) regulates the rights, responsibilities, liabilities, and immuni-ties regarding the relationship between shippers and carriers of goods The Salvage Act (46 U.S C.A §§ 727–731 [1912]) provides for compen-sation to persons who help save a ship or cargo from danger or help recover a ship or cargo from actual loss To qualify for salvage remu-neration, a person must not be acting in service
of the ship or in performance of a contract, and the help given must have contributed at least in part to a wholly or partially successful salvage of the ship or goods
TheCASE LAWof the United States is rich in the areas of sailors’ rights respecting the unseaworthiness of vessels, compensation for vessel suppliers and servicers, and the liabilities arising from collisions, towage, pilotage, and groundings TheMARITIME LIENAct (46 U.S.C.A
§§ 31341–31343 [1920]) gives a LIEN to any person who, upon the order of the shipowner, furnishes repairs, supplies, towage, use of dry dock or marine railway, or other necessaries to any vessel, without allegation or proof that credit was given The Ship Mortgage Act (46 U S.C.A §§ 31301–31330 [1920]) regulates the mortgages on ships registered in the United States, and also provides for enforcement of the maritime liens obtained through the Maritime Lien Act
In case of collision or other damage to a vessel, an IN REM proceeding is often used to recoverDAMAGES An in rem action is a lawsuit brought against an offending thing (in admiralty, usually the ship), whereas anIN PERSONAMaction
is a suit brought against a person Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims (1985) provides necessary details for the SEIZURE of an offending owner’s vessel or property if a DEFENDANT vessel owner does not live in the state in which a suit is brought The practical effect of Supplemental Rules B to E is to make it easier for aPLAINTIFF
to bring actions against out-of-state and foreign vessel owners and to provide for the attachment andGARNISHMENTof the offending vessel
An important consideration in any lawsuit is venue Under Article III, Section 2, of the U.S Constitution, federal courts have the power to try “all Cases of admiralty and maritime Jurisdiction” (art III, SEC 2) However, state courts can also hear admiralty and maritime
122 ADMIRALTY AND MARITIME LAW
Trang 6cases by virtue of the“saving-to-suitors” clause
of 28 U.S.C.A § 1333(1) This clause allows a
plaintiff to sue in state court through an
ordinaryCIVIL ACTIONwhen the court’sCOMMON
LAW is competent to give a remedy In such
actions, the state court must apply the federal
law of admiralty to the admiralty claims
Nevertheless, if a plaintiff believes he or she
will fare better before a local tribunal, the
option is available
When no applicable federal statute exists,
the governing law of a maritime case will be the
uniform laws as expounded by the U.S
Supreme Court and applicable to all torts and
contracts, whether the case is tried in federal or
state court Maritime case law—not the general
common law—will govern a contract dispute
only if the subject matter of the contract
pertained to water commerce Maritime
pre-cedents will govern a tort claim only if the
negligent or reckless actions involved
commer-cial activity on navigable waters
Charter parties are often a topic of concern
in maritime law A charter party, or charter, is an
agreement among a shipowner, a crew (the
charterer), and the owner of the goods to be
transported Charter parties come in three
types: time, voyage, and demise A time charter
is the lease of a ship to a charterer for a specified
period of time A voyage charter is the lease of a
ship for a specific number of voyages A demise
charter (so called because the shipowner
effec-tively relinquishes ownership for a certain
period, causing a“demise” in ownership interest)
is usually a bareboat charter, which means that
the charterer supplies the master and crew for
the ship Other demise charters provide that the
shipowner’s master and crew take charge of the
vessel
In contrast to the usual contract practice of
providing risk-of-loss insurance for one party,
charters utilize what is called a general average
General average is the traditional, primitive form of
maritime risk allocation whereby all participants
in a charter agree to share any damages resulting
from an unsuccessful voyage Most parties to a
charter obtain insurance to cover their portion of
risk However, because a charter involves multiple
parties, and because insurance policies are subject
to interpretation, insurance coverage does not
always prevent disputes over damages
Risk of loss is sometimes decided according
to a BILL OF LADING This document confirms a
carrier’s receipt of goods from the owner (consignor), verifies the voyage contract, and shows rightful ownership of the goods In Lekas & Drivas, Inc v Goulandris, 306 F.2d
426 (2d Cir 1962), the SS Ioannis P Goulandris had chartered to carry olive oil, cheese, and tobacco from the western Greek port of Piraiévs
to the United States via the Strait of Gibraltar
On October 28, 1940, with the Ioannis docked
in Piraiévs, Italy attacked Greece, and the Ioannis was requisitioned by the Greek govern-ment for a military mission
On November 10, 1940, the Ioannis finally set sail with its cargo for the United States via the Suez Canal and the Red Sea, and around Cape Horn After an arduous journey that included two crossings of the equator, hull damage, and lengthy repairs, the Ioannis came into port at Norfolk, Virginia, on May 3, 1941
En route, the tobacco had been damaged, much
of the olive oil had leaked from its drums, and the cheese was“‘[m]elted with a terrible stench, and worthless.’”
Despite the Ioannis’s brave participation in wartime activities, the intended recipients (con-signees) of the tobacco and olive oil sued the Ioannis and were able to recover for the losses suffered as a result of the damage However, on the subject of the cheese, the court refused to allow recovery by Lekas and Drivas, which had consigned the cheese to itself
Lekas argued that the crew of the Ioannis was negligent in storing the cheese in the structure at the stern above the main deck, known as the poop According to Lekas, it was inappropriate for the cheese to be in the poop
The poop lacked ventilation, and it was not refrigerated However, according to the bill of lading between Lekas and the Ioannis, special cooling was not necessary and had not been contracted for The cheese was also stored on lighters (large, flat-bottomed barges used for loading and unloading ships) during the 35 days needed for repairs of the Ioannis, and Lekas claimed that this storage was improper But because wartime conditions were responsible for the length of repairs and the lack of proper storage space for the cheese, the court ultimately held that the Ioannis was not negligent in its handling of the cheese
In addition to the state and federal govern-ments, municipalities can affect the private enjoy-ment of maritime activity In Beveridge v Lewis,
ADMIRALTY AND MARITIME LAW 123
Trang 7939 F.2d 859 (9th Cir 1991), appellants Richard Beveridge, Peter Murray, Gregory Davis, and Peter Eastman challenged a Santa Barbara city ordinance (Santa Barbara Municipal Code
§ 17.13.020) that prohibited the anchoring or mooring of boats within 300 feet of Stearns Wharf from December to March Santa Barbara had acquired ownership of Stearns Wharf in 1983, passed the ordinance in 1984, and started issuing citations for noncompliance shortly thereafter
Beveridge, Murray, Davis, and Eastman all owned boats moored or anchored within 300 feet of Stearns Wharf, and the four, represented by Eastman, brought suit against the city in 1989, seeking injunctive relief against enforcement of the ordinance
At trial, Eastman argued that the Santa Barbara ordinance conflicted with the Ports and Waterways Safety Act of 1972 (PWSA) (33 U.S
C.A §§ 1221 et seq.), a federal act designed to reduce the loss of vessels and cargo, protect marine environment, prevent damage to struc-tures on or adjacent to navigable waters, and ensure compliance with vessel operation and safety standards The trial court dismissed the case, reasoning that the ordinance was neither preempted by, nor in conflict with, the federal statute
On appeal, the Ninth CIRCUIT COURT of Appeals agreed that the Santa Barbara ordi-nance was not in conflict with the PWSA, because the federal act was not intended to limit
a municipality’s control over its local shores
The appeals court also rejected the proposition that the enactment of the PWSA implicitly foreclosed the enactment of similar ordinances
by municipalities, and Santa Barbara’s control over the Stearns Wharf was complete
Admiralty and maritime matters will always deserve laws carefully crafted to suit the complexity and urgency of maritime endeavors
The international nature of high-seas navigation and its attendant perils demand no less Federal, state, and local control of navigable waters can affect everyone from the largest charter party to
a private boat owner
FURTHER READINGS Healy, Nicholas J., and David J Sharpe 2006 Cases and Materials on Admiralty 4th ed Eagan, MN: West.
Lucas, Jo Desha 2003 Admiralty: Cases and Materials.
5th ed New York: Foundation.
Robertson, David W 2008 Admiralty and Maritime Law in the United States: Cases and Materials 2d ed Durham, NC: Carolina Academic.
Schoenbaum, Thomas J 2004 Admiralty and Maritime Law 4th ed Eagan, MN: West.
CROSS REFERENCES Carriers; Environmental Law; Navigable Rivers; Piracy; Salvage; Shipping Law; Territorial Waters.
ADMISSIBLE
A term used to describe information that is relevant to a determination of issues in any judicial proceeding so that such information can
be properly considered by a judge or jury in making a decision
Evidence is admissible if it is of such a character that the court is bound to accept it during the trial so that it may be evaluated by the judge or jury Admissible evidence is the foundation of the deliberation process by which
a court or jury decides upon a judgment or
VERDICT The FEDERAL RULES OF EVIDENCE regulate the admissibility of evidence in federal courts State rules of evidence determine evidence that is admissible in state court proceedings
ADMISSION
A voluntary acknowledgment made by a party to
a lawsuit or in a criminal prosecution that certain facts that are inconsistent with the party’s claims
in the controversy are true
In a lawsuit over whether a DEFENDANT neg-ligently drove a car into thePLAINTIFFpedestrian, the defendant’s apology to the plaintiff and payment of the plaintiff’s medical bills are admissions that may be introduced as evidence against the defendant
An admission may be express, such as a written or verbal statement by a person con-cerning the truth, or it may be implied by a person’s conduct If someone fails to deny certain assertions which, if false, would be denied by any REASONABLE PERSON, such failure indicates that the person has accepted the truth
of the allegations
An admission is not the same as a confes-sion A confession is an acknowledgment of guilt in a criminal case Admissions usually apply to civil matters; in criminal cases they apply only to matters of fact that do not involve criminal intent
124 ADMISSIBLE
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of discovery, as a pleading device, and as
evidence in a trial
Once a complaint is filed to commence a
lawsuit, the parties can obtain facts and
information about the case from each other to
assist their preparation for the trial through the
use of discovery devices One type of discovery
tool is a request for admission: a written
statement submitted to an opposing party
before the trial begins, asking that the truth of
certain facts or the genuineness of particular
documents concerning the case be
acknowl-edged or denied When the facts or documents
are admitted as being true, the court will accept
them as such so that they need not be proven at
trial If they are denied, the statements or
documents become an issue to be argued during
the trial Should a party refuse to answer the
request, the other party can ask the court for an
order of preclusion that prohibits denial of
these facts and allows them to be treated as if
they had been admitted
By eliminating undisputed facts as issues in
a case, requests for admissions expedite trials
Matters that are admitted are binding only for
the pending case and not for any other lawsuit
Judicial admissions—made in court by a
party or the party’s attorney as formal
acknowl-edgments of the truth of some matter, or as
stipulations—are not considered evidence that
may be rebutted but are a type of pleading
device Averments in a pleading to which a
RESPONSIVE PLEADING is required are admitted if
they are not denied in the responsive pleading
If a party has made an admission in a pleading
that has subsequently been amended, the
pleading containing the admission will be
admissible as evidence in the case In civil
actions any offers toSETTLE the case cannot be
admitted into evidence
A plea of guilty in a criminal case may
usually be shown as an admission in a later civil
or criminal proceeding, but it is not conclusive
The defendant may explain the circumstances
that brought it about, such as aPLEA BARGAINING
deal Any admissions or offers to plead guilty
during the plea-bargaining process are
INADMIS-SIBLEas evidence Many courts refuse to admit
a guilty plea to a traffic offense as evidence
because many people plead guilty to avoid
wasting their time and money by appearing in
traffic court A guilty plea that has subsequently
been withdrawn and followed by a plea of not guilty cannot be used as an admission in either a criminal or civil case It is considered an unreliable admission that has a potentially prejudicial effect on the opportunity of the defendant to get a fair trial
Admissions are used as a type of evidence in
a trial to bolster the case of one party at the expense of the other, who is compelled to admit the truth of certain facts They may be made directly by a party to a lawsuit, either in or out
of court; or implicitly, by the conduct of a party or the actions of someone else which bind the party to a lawsuit When an admission
is made out of court, it is hearsay because it was not made under OATH and not subject to
CROSS-EXAMINATION Although hearsay cannot be used as evidence in a trial because of its unreliable nature, admissions can be introduced
as evidence because they are considered trust-worthy An admission by a party can be used only to prove the existence of the fact admitted and to IMPEACH the credibility of the party
An admission by a witness can be introduced
as evidence only to discredit the witness’s
TESTIMONY
An admission against interest is a statement made by a party to a lawsuit, usually before the suit, that contradicts what he or she is now alleging in the case Because the statements tend
to establish or disprove a material fact in the case, they are considered admissions against interest The truth of such statements is presumed because people do not make detri-mental statements about themselves unless they are true Such an admission is considered an exception to the hearsay rule and, therefore, can
be used as evidence in a lawsuit
ADMISSION TO THE BAR The procedure that governs the authorization of attorneys to practice law before the state and federal courts
Statutes, rules, and regulations governing admission to practice law have been enacted to protect thePUBLIC INTEREST, in terms of prevent-ing the victimization of clients by incompetent practitioners The courts have inherent power
to promulgate reasonable rules and regula-tions for ADMISSION TO THE BAR Although this authority is vested exclusively in the courts, the legislature can, subject to constitutional
ADMISSION TO THE BAR 125
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do not conflict with judicial pronouncements
The highest state court administers the admission of applicants to the state bar, usually requiring successful completion of a bar exami-nation and evidence of good moral character
With respect to admission to the federal bar, federal district courts are empowered to issue requirements for admission separately from those of the state courts If, however, a federal district court, pursuant to a rule, derivatively admits to its bar those admitted to the state bar,
it cannot arbitrarily deny admission to an applicant who is a member in good standing
of the state bar In most instances, the federal district courts have considerable latitude in establishing requirements for admission to practice before them, but their rules must not contravene federal law
In terms of the federal bar, an attorney is also eligible for admission to the bar of a court
of appeals, if he or she has been admitted to practice before the Supreme Court or the highest court of a state or another federal court and if the lawyer is of good moral and professional character The attorney must comply with the procedural requirements and take and subscribe to the following OATH: “I, [name], do solemnly swear (or affirm) that I will demean myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States.”
In order to gain admission to the bar of the Supreme Court, an attorney must have prac-ticed for three years in the highest court of a state, territory, district, commonwealth, or possession The person must be of good character in terms of both his or her private and professional lives and complete the speci-fied procedures, including taking or subscribing the following oath: “I, [name], do solemnly swear (or affirm) that as an attorney and as a counselor of this court I will conduct myself uprightly, and according to law, and that I will support the Constitution of the United States.”
In some instances, a particular board is empowered to promulgate rules pertaining to applicants seeking to practice before it as attorneys For example, the SECURITIES AND EXCHANGE COMMISSION has implied authority under its general statutory power to determine qualifications for attorneys practicing before it Under federal law, the commissioner ofPATENTS
and trademarks, subject to the approval of the secretary of commerce, can promulgate regula-tions governing the recognition and conduct of attorneys appearing before the U.S.PATENT AND TRADEMARK OFFICE
Qualifications for admission to the bar must
be rationally related to the applicant’s fitness to practice law; therefore, a state cannot prevent a person from practicing law for racial, political, or religious reasons Good moral character is a prerequisite to the right to admission to practice law and, at a minimum, consists of honesty Lack
of good moral character is demonstrated by an immutable dishonest and corrupt nature and not
by radical political beliefs or membership in lawful, but controversial, political parties
In regard to the effect of criminal conduct upon the evaluation of an applicant’s character,
a conviction for the commission of aFELONY is not, per se, sufficient to demonstrate a lack of good moral character It will be incumbent upon the applicant, however, to prove complete rehabilitation Although a conditionalPARDONis insufficient to remove objections to bar admis-sion, a felony conviction will not prevent an applicant from practicing law if he or she has received a full pardon and is otherwise qualified
MISDEMEANOR convictions do not necessarily result in a finding of lack of good moral character, but mere conduct that does not culminate in a conviction might present an insurmountable obstacle to admission if it indicates a lack of
Admission to the Bar by Examination, 2003 to 2007
SOURCE: National Conference of Bar Examiners, “2007 Statistics,” The Bar
Examiner, May 2008.
Number of admissions
2003
2004
2005
2006
2007
49,151 49,127 50,270 53,871 54,618
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
126 ADMISSION TO THE BAR
Trang 10moral fitness In some cases, an applicant has
been rejected for want of good moral character
because he or she has made false statements or
concealed material facts in the application for
admission or in other legal documents In other
cases, the withholding or falsification on the
application of minor matters has been viewed as
having no effect on an evaluation of character;
the same principle applies to unintentional
concealment of information
Admission to the bar cannot be denied
because the applicant is not a United States
citizen, but the states can impose reasonable
residency requirements upon all applicants
prior to, or during, the time a license is sought
This requirement enables the state examining
authority to investigate the character of the
applicant, but it must be rationally related to the
attainment of this objective While a majority of
states have some form of residency requirement
for admission to the bar, the emerging trend is
to nullify durational residency requirements
that mandate that an attorney live in a state for a
prescribed period as a prerequisite to
certifica-tion to practice law
Applicants for admission to practice law
must take a bar examination, unless they are
exempted from this requirement by statute or
court rule According to the National
Confer-ence of Bar Examiners, 80,319 applicants took a
bar examination in 2008, of which 70,172 were
first-time takers Overall, 71 percent, or 56,915
examinees, passed However, among first-time
takers from AMERICAN BAR ASSOCIATION
(ABA)-approved law schools, 85 percent passed,
whereas repeat-takers had a 43 percent pass rate
The examination can be taken more than once
In rare cases, an attorney who has been disbarred
or suspended can take a special bar examination
for reinstatement In 2008 only 20 disbarred or
suspended attorneys across the U.S took a
reinstatement exam (seven, or 35 percent, passed)
Attorneys from other states can be admitted
to practice in the state without examination
upon providing the required proof of practice
in another state that has reciprocity provisions,
pursuant to which an attorney licensed in one
state can be admitted to the bar of another state,
if the first state grants RECIPROCAL rights to
attorneys admitted to practice in the other state
Under the device of PRO HAC VICE, an attorney
can be admitted to practice in a jurisdiction
without having to take the bar examination, but
only on a limited basis and only for a particular case Such an attorney must be a member in good standing of a bar of other states or countries
In order to practice law, an attorney must obtain a certificate or license, which is a privilege rather than aPROPERTY RIGHT Attorneys must also comply with the court rules or statutes governing the registration system, which is used to maintain a current list of all attorneys authorized to practice law in the state
Generally, admission by court order constitutes sufficient registration, but in some states, attorneys sign the roll or file a certificate with the clerk of the court to establish that they have been duly admitted to practice
An applicant for admission to the bar is entitled to notice of, and a hearing on, the grounds for rejection either before the commit-tee on character and fitness or the court The courts can review the decision of bar examiners who deny an applicant admission to the bar, and the courts can ascertain whether the examiners acted after a fair investigation and hearing, exercised their discretion impartially and reasonably, and conducted their proceed-ings in compliance with the requirements of procedural due process
The legal profession has tried in recent years
to diversify the population of attorneys First-year law student statistics compiled by the American Bar Association show that for the
2008–2009 academic year, out of 49,414 stu-dents, 23,407 (roughly 47 percent) were women
A steady supply of new attorneys continue to enter the profession each year According to the National Council of Bar Examiners, in 2008, 56,357 persons were admitted to state bars by examination; 7,888 by court motion, and 468 by diploma privilege
FURTHER READINGS American Bar Association (ABA), 2009 “Legal Education and Bar Admissions 2008 Statistics ” Available online at http://www.abanet.org/legaled/statistics/charts/stats%
20-%201.pdf; website home page: http://www.abanet.
org/ (accessed August 5, 2009) American Bar Association Publishing Company 2009 Rules for Admission to the Bar in the Several States and Territories of the United States Charleston, SC: BibioLife LLC.
Glen, Kristin Booth 2002 “When and Where We Enter:
Rethinking Admission to the Legal Profession.”
Columbia Law Review 102 (October): 1696–1740.
Moeser, Erica 2002 “Bar Admission in the United States 2001: Framing the Discussion for Response to
ADMISSION TO THE BAR 127