ADVERSE POSSESSION A method of gaining legal title to real property by the actual, open, hostile, and continuous posses-sion of it to the excluposses-sion of its true owner for the perio
Trang 1A majority of the state statutes provide for the release of identifying information when the birth parents have consented to such release
One method that states use to organize such consents is a mutual consent registry, which is a system whereby individuals involved in the adoptions can indicate whether they will allow for their identifying information to be disclosed
Approximately 29 states have devised some type
of registry Other states have in place a type of search-and-consent system, which allows for the adoption agency to assist a party in locating birth family members if the birth family members consent to the release of the information
Most state statutes deny adoptees access to records that disclose identifying information about the natural parents in situations where the consent of the birth parents is not on record
The natural parents often make their consent to the adoption contingent upon the condition that
no information about them ever be revealed Yet, many states now have instituted procedures for which a party to an adoption may obtain non-identifying information Non-non-identifying infor-mation may include, but is not limited to, the following: the date and place of the adopted person’s birth and the birth parents’ age, physical description, race, ethnicity, religion, and medical history Some states are more restrictive than others regarding the release of information from the adoption records For example, New York, Oklahoma, and Rhode Island require that any person seeking non-identifying information must first register with the state adoption registry prior to receiving such information
Because of a growing PUBLIC INTEREST in tracing ethnic and family backgrounds, many adoptees, as adults, have been calling for the right to obtain access to sealed adoption records, which includes identifying informa-tion The adult adoptees recognize that a disclosure of this kind of information could be traumatic to minor adoptees, but they contend that lack of access could cause serious psycho-logical trauma to them as adults In addition, they cite medical problems or misdiagnoses that could be caused by absence of genetic history, as well as fear of unwittingINCEST
Adult adoptees contend that most adoption statutes do not draw a distinction between adoptees as minors and later as adults, which causes the adults to be deprived of the right to trace their background In addition, the adults
allege that they have been deniedEQUAL PROTEC-TIONof law because their status precludes them from receiving medical information readily available to non-adoptees
Various approaches are being used to resolve this problem One approach involves the enact-ment of a legislative requireenact-ment that public and private adoption agencies be required to open their records, upon request, to adults who were adopted as children, with certain limitations For example, if the child had been placed by the natural parents prior to the effective date of the legislation, the natural parents could prevent the adoptee from seeing the records
The issue of right to access to adoption records by adoptees when they reach adulthood also encompasses the legal consideration of the natural parents’ right to privacy, which could be violated if free access to sealed court records were given to adult adoptees The adult adoptees’ right to know must be balanced against their natural parents’ right to privacy The way to achieve such a balance, however, has never been clearly determined
In September 1999 Tennessee’s Supreme Court overturned the Tennessee Court of Appeals ruling in Doe v Sundquist, 2 S.W.3d
919 (Tenn., Sep 27, 1999) (NO 01-S-01-9901-CV00006), which challenged a law passed in
1995 that unsealed both adoption records and original birth certificates to adult adoptees Earlier, the U.S Court of Appeals for the 6th CIRCUIT COURThad ruled in favor of the state and opined, much to the dismay of sealed records advocates: “A birth is simultaneously an inti-mate occasion and a public event—the govern-ment has long kept records of when, where, and
by whom babies are born Such records have myriad purposes, such as furthering the interest
of children in knowing the circumstances of their birth,” Doe v Sundquist, 106 F.3d 702, 65 USLW 2527, 1997 Fed.App 0051P (6th Cir (Tenn.) Feb 11, 1997) (NO 96-6197) The U.S Supreme Court, however, elected not to hear the Tennessee case
FURTHER READINGS
“Access to Adoption Records, State Statutes Series.” Available online at http://www.childwelfare.gov/system wide/laws_policies/statutes/infoaccessap.cfm; website home page: http://www.childwelfare.gov (accessed June
11, 2009).
Carp, E Wayne, ed 2002 Adoption in America: Historical Perspectives Ann Arbor: University of Michigan Press.
138 ADOPTION
Trang 2DuPrau, Jeanne 1990 Adoption Englewood Cliffs, N.J.:
Messner.
Embry v Ryan Florida App No 2D08-1323 (May 13, 2009).
Marshner, Connaught, ed 1999 Adoption Factbook III.
Washington, D.C.: National Council for Adoption.
Manian, Maya 2009 “The Irrational Woman: Informed
Consent and Abortion Decision-Making ” Duke Journal
of Gender Law and Policy August.
Melosh, Barbara 2002 Strangers and Kin: The American
Way of Adoption Cambridge, Mass.: Harvard
Univer-sity Press.
Rundberg, Gayle D 1988 How to Get Babies through Private
Adoption Bend, Ore.: Maverick.
Sloan, Irving J 1988 The Law of Adoption and Surrogate
Parenting London: Oceana.
“Total Adoptions to the United States.” Available online at
http://adoption.state.gov/news/total_chart.html; website
home page: http://adoption.state.gov (accessed June 11,
2009).
Van Alstyne, William 2009 “The Unbearable Lightness of
Marriage in the Abortion Decisions of the Supreme
Court: Altered States in Constitutional Law ” William
and Mary Bill of Rights Journal October.
CROSS REFERENCES
Child Custody; Child Support; Children ’s Rights; Family
Law; Illegitimacy; Infants; Parent and Child; Surrogate
Motherhood.
ADULT
A person who by virtue of attaining a certain age,
generally eighteen, is regarded in the eyes of the
law as being able to manage his or her own affairs
The age specified by law, called the legalAGE
OF MAJORITY, indicates that a person acquires full
legal capacity to be bound by various
docu-ments, such as contracts and deeds, that he or
she makes with others and to commit other
legal acts such as voting in elections and
entering MARRIAGE The age at which a person
becomes an adult varies from state to state and
often varies within a state, depending upon the
nature of the action taken by the person Thus,
a person wishing to obtain a license to operate a
motor vehicle may be considered an adult at
age sixteen, but may not reach adulthood until
age eighteen for purposes of marriage, or age
twenty-one for purposes of purchasing
intoxi-cating liquors
Anyone who has not reached the age of
adulthood is legally considered an infant
ADULTERATION
Mixing something impure with something
genu-ine, or an inferior article with a superior one of
the same kind
Adulteration usually refers to mixing other matter of an inferior and sometimes harmful quality with food or drink intended to be sold As a result of adulteration, food or drink becomes impure and unfit for human consump-tion The federal FOOD AND DRUG ADMINISTRATION prohibits transportation of adulterated foods, drugs, and cosmetics in interstate commerce, as provided under the Food, Drug and Cosmetic Act (21 U.S.C.A § 301 et seq.[1938]) State and local agencies, acting under the authority of local laws, do the same to ban the use of such impure goods within their borders
ADULTERY Voluntary sexual relations between an individual who is married and someone who is not the individual’s spouse
Adultery is viewed by the law in many jurisdictions as an offense injurious to public morals and a mistreatment of the MARRIAGE relationship
Statutes attempt to discourage adultery by making such behavior punishable as a crime and by allowing a blameless party to obtain a DIVORCEagainst an adulterous spouse
Although adultery has been historically regarded as a legal wrong, it has not always been considered a crime In Europe during the fifteenth and sixteenth centuries, adultery was punishable solely in courts created by the church to impose good morals In the ECCLESIAS-TICAL COURTS, adultery was any act of sexual intercourse by a married person with someone not his or her spouse The act was considered wrongful regardless of whether the other person was married At COMMON LAW, adultery was wrongful intercourse between a married woman and any man other than her husband
Criminal Laws Several state legislatures statutorily prohibit adultery as a crime Under some statutes, both parties to an adulterous relationship are guilty
of a crime if either of them is married to someone else Other statutes provide that the act is criminal only if the woman is married
Under the law of many states, a single act of adultery constitutes a crime, whereas in others, there must be an ongoing and notorious relationship The punishment set by statute may be greater for an individual who engages in
ADULTERY 139
Trang 3repeated acts of adultery than for one who commits an isolated act
Defenses An individual who has been charged with committing adultery may have a valid legal defense, such as the failure or physical incapac-ity to consummate the sex act
A woman is not guilty of adultery if the sex act resulted fromRAPE Some states recognize igno-rance of the accused regarding the marital status
of his or her sexual partner as a defense In a few jurisdictions only the married party can be prosecuted for adultery If the other party to the relationship is not married, he or she may be prosecuted for fornication instead of adultery
Initiation of Criminal Proceedings Under some statutes, a prosecution for adultery can be brought only by the spouse of the accused person although technically the action is initiated in the name of the state Other states provide that a husband or wife is precluded from commencing prosecution for adultery since those states have laws that prohibit a husband or wife from testifying against his or her spouse In such states,
a complaint can be filed by a husband or wife against the adulterous spouse’s lover
Evidence Customary rules prescribe the types of evidence that can be offered to prove guilt or innocence There must be a showing by the PROSECUTOR that the accused party and another named party had sexual relations Depending on state statutes, the prosecutor must show that either one or both parties to the adultery were wed
to someone else at the time of their relationship
Evidence that theDEFENDANThad the chance
to have sexual relations coupled with a desire, or opportunity and inclination, might be sufficient
to prove guilt Photographs or TESTIMONY of a witness who observed the couple having sexual intercourse is not necessary The fact that a married woman accused of adultery became pregnant during a time when her husband was absent might be admissible to demonstrate that someone other than her spouse had the opportunity of engaging in illicit sex with her
Letters in which the accused parties have written about their amorous feelings or clan-destine encounters may be introduced in court
to support the assertion that the parties had the inclination to engage in sexual relations
CHARACTER EVIDENCEindicating the good or bad reputation of each party may be brought
before the jury Evidence of a woman’s sexual relationships with men other than the party to the adultery generally cannot be used; how-ever, if her reputation as a prostitute can be demonstrated, it may be offered as evidence Suspicious activities and incriminating cir-cumstances may be offered as CIRCUMSTANTIAL EVIDENCE
Enforcement of Statutes Although the District of Columbia and approx-imately half of the states continue to have laws
on the books criminalizing adultery, these laws are rarely invoked Traditionally, states ad-vanced three goals in support of their adultery laws: (1) the prevention of disease and illegiti-mate children; (2) the preservation of the institution of marriage; and (3) the safeguarding
of general community morals
Courts in the jurisdictions still prohibiting adultery have openly questioned whether adul-tery laws in fact serve these goals The Florida Supreme Court, for example, found that adultery statutes bear no rational, much less compelling relationship to disease prevention The court said that the risk of contracting disease is already a greater deterrent to extra-marital sex than criminal punishment The court also noted that the fear of prosecution prevents infected people from voluntarily seek-ing treatment (Purvis v State, 377 So 2d 674,
677 [Fla.1979])
At the same time, many prosecutors began
to realize that once the act of adultery is committed, the harm to the marriage is for the most part complete, especially if the infidelity is disclosed or discovered In other words, after a spouse has been unfaithful, there
is little the judicial system can offer to undo the act and reverse the damage Thus, prosecutors have increasingly questioned whether prosecut-ing the adulterer will do much if anythprosecut-ing to preserve the marriage
Finally, judges, prosecutors, and other state officials have increasingly realized that prosecu-tions for adultery have had little practical effect
in “safeguarding the community morals.” Opinion polls consistently show that significant numbers of spouses admit to cheating on their partners during marriage In light of the growing evidence that adultery laws no longer serve their three underlying purposes, most state prosecutors have made a conscious decision
140 ADULTERY
Trang 4against wasting their scarce resources on
pro-secuting alleged adulterers
In states that still have adultery laws on the
books, but have failed to PROSECUTE anyone
under them recently, courts have ruled that the
mere lack of prosecution under the adultery
statute does not result in that statute becoming
invalid or judicially unenforceable Courts have
also rejected the argument that prosecutions for
adultery are inconsistent with the right to
privacy guaranteed by state and federal
con-stitutions (Commonwealth v Stowell, 389 Mass
171, 449 NE2d 357 [Mass 1983])
As a Defense
Occasionally, adultery has been successfully
asserted as a defense to the crime of MURDER
by an individual charged with killing his or her
spouse’s lover Courts are loath, however, to
excuse the heinous crime of murder on the
ground that the accused party was agitated
about a spouse’s adulterous activities However,
individuals who kill their spouse after catching
him or her committing adultery may be able to
rely on aHEAT OF PASSION defense, and thereby
face prosecution or conviction forMANSLAUGHTER,
rather than first degree murder
Divorce
Based on the state’s interest in the marital status
of its residents, all legislatures had traditionally
assigned statutes enumerating the grounds on
which a divorce would be granted These
grounds, listed separately in the laws of each
jurisdiction, generally includedDESERTION,
NON-SUPPORT, and adultery
The basis of adultery as a ground for divorce
has been discussed in various cases There is an
overriding PUBLIC POLICY in favor of preserving
the sanctity of marital relationships and family
unity and a fear that adultery will serve to
undermine these societal objectives
Late twentieth-century changes in divorce
laws, primarily the enactment of no-fault
divorce statutes in many states, have made it
easier for couples seeking divorce to end their
marriages without having to prove adultery or
any other ground In the past many unhappy
couples resorted to trickery to attempt to obtain
a divorce through staging the discovery of
allegedly adulterous conduct
Nonetheless, adultery still may be relevant
to divorce proceedings in which ALIMONY is an
issue In twenty-seven states plus Puerto Rico and the District of Columbia, fault is one factor which courts will consider in deciding whether
to AWARD alimony If the spouse seeking an alimony award committed adultery, he or she will have a more difficult time convincing the court that he or she is entitled to alimony than
if he or she had not been unfaithful
FURTHER READINGS Duhaime, Lloyd “Adultery.” Duhaime.org Web site.
Available online at http://www.duhaime.org/Legal Dictionary/A/Adultery.aspx; website home page:
http://www.duhaime.org (accessed August 28, 2009).
Friedman, Lawrence M 2000 “A Dead Language: Divorce Law and Practice before No-fault ” Virginia Law Review
86 (October).
Haggard, Melissa Ash 1999 “Adultery: A Comparison of Military Law and State Law and the Controversy This Causes under Our Constitution and Criminal Justice System ” Brandeis Law Journal 37 (spring).
CROSS REFERENCES Circumstantial Evidence; Common Law; Divorce; Ecclesi-astical Courts; Family Law; Fornication; Husband and Wife;
Marriage; Privacy; Rape.
ADVANCE
To pay money or give something of value before the date designated to do so; to provide capital to help a planned enterprise, expecting a return from it; to give someone an item before payment has been made for it
ADVANCE SHEETS Pamphlets containing recently decided opinions of federal courts or state courts of a particular region
Cases appearing in advance sheets are subse-quently published in bound volumes containing several past pamphlets, usually with the same volume and page numbers as appeared in the advance sheets Sometimes a court will publish an individual opinion soon after it has been rendered
by the court This is called a slip opinion, which later may appear in an advance sheet
Advance Sheets in the National Reporter System
The National Reporter System, published by the West Group, St Paul, Minnesota, is the most comprehensive collection of the decisions of the appellate courts of the states and each of the courts of the United States Eighteen reporters comprise the National Reporter System Eight units cover federal courts, including the
ADVANCE SHEETS 141
Trang 5Supreme Court Reporter (cited as S Ct.); the Federal Reporter, in its third series; the Federal Supplement, in its second series; the Federal Rules Decisions (cited as F.R.D.); the Military Justice Reporter (cited as M.J.); and the Bank-ruptcy Reporter
Ten reporters cover the 50 states and the District of Columbia These reporters, each of which is in its second or third series, include the following: Atlantic Reporter (A., A.2d); North Western Reporter (N.W., N.W.2d); Pacific Re-porter (P., P.2d, P.3d); South Eastern ReRe-porter (S.E., S.E.2d); Southern Reporter (So., So 2d);
South Western Reporter (S.W., S.W.2d, S.W.3d);
California Reporter (Cal Rptr.); Illinois Decisions (Ill Dec.); and New York Supplement (N.Y.S., N.Y.S.2d)
Advance sheets in the National Reporter System are published 50 times each year (weekly, except for the last week of September and first week of October) for the regional units reporting state cases Three units report federal cases 52 times per year The remaining units are published biweekly, monthly, or semi-monthly, depending on how many cases are issued by the courts covered by the various reporters
CROSS REFERENCES Opinion; Reporter.
ADVANCEMENT
A gift of money or property made by a person while alive to his or her child or other legally recognized heir, the value of which the person intends to be deducted from the child’s or heir’s eventual share in the estate after the giver’s death
An advancement is not the same as a gift or a loan because the person intends that the
“advance” of the heir’s share of the estate be applied against what the heir would normally INHERIT Although sometimes used to describe situations involving both people who have died INTESTATE (without leaving a valid will) and people who have left a will, the term advance-ment should be used only when there is no valid will The laws of DESCENT AND DISTRIBUTION regulate the distribution of an intestate’s property
The term ademption applies to lifetime gifts that reduce a beneficiary’s share under a will
ADVERSARY PROCEEDING Any action, hearing, investigation, inquest, or inquiry brought by one party against another in
which the party seeking relief (initiating the action) has given legal notice to the other party and provided that party with an opportunity to contest the claims being made against him or her
A court trial is a typical example of an adversary proceeding
CROSS REFERENCE Adjudication.
ADVERSARY SYSTEM The scheme of American jurisprudence wherein a judge or jury renders a decision in a controversy between or among parties who assert contradictory positions during a judicial examination such as a trial, hearing, or other adjudication
U.S courtrooms have often been compared
to battlefields or playing fields The adversary system by which legal disputes are settled in the United States promotes the idea that legal controversies are battles or contests to be fought and won using all available resources
The contemporary Anglo-American adver-sary system has gradually evolved, over several hundred years Early English jury trials were unstructured proceedings in which the judge might act as inquisitor, or evenPROSECUTOR, as well as fact finder Criminal defendants were not allowed to have counsel, to callWITNESSES, to conductCROSS-EXAMINATION, or to offer affirma-tive defenses All types of evidence were allowed, and juries, although supposedly neutral and passive, were actually highly influenced by the judge’s remarks and instructions In fact, before
1670 jurors could be fined or jailed for refusing
to follow a judge’s directions
The late 1600s saw the advent of a more modern adversarial system in England and its American colonies Juries took a more neutral stance, and appellate review, previously unavail-able, became possible in some cases By the eighteenth century, juries assumed an even more autonomous position as they began functioning
as a restraint on governmental and judicial abuse and corruption The Framers of the Constitution recognized the importance of the jury trial in a free society by specifically establishing it in theSIXTH AMENDMENTas a right
in criminal prosecutions The Eight Amend-ment also established the right to a jury in noncriminal cases: “In Suits at COMMON LAW, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall
142 ADVANCEMENT
Trang 6be preserved, and no fact tried by a jury, shall be
otherwise reexamined in any Court of the
United States, than according to the rules of
the common law.”
The independent judiciary was somewhat
slower in developing Before the 1800s, English
judges were still biased by their ties with the
Crown, and U.S judges were often politically
partisan U.S Supreme Court Chief JusticeJOHN
MARSHALL, who served from 1801 to 1835,
established the preeminence and independence
of the high court with his opinion inMARBURY V
MADISON, 5 U.S (1 Cranch) 137, 2 L Ed 60
(1803) Marbury established “the basic principle
that the federal judiciary is supreme in the
exposition of the law of the Constitution”
(Cooper v Aaron, 358 U.S 1, 78 S Ct 1401, 3 L
Ed 2d 5[1958]) By the early 1800s, attorneys
had risen to prominence as advocates and
presenters of evidence Procedural and
eviden-tiary rules were developed, and they turned the
focus of LITIGATION away from arguments on
minute points of law and toward theRESOLUTION
of disputes The basic parameters of the United
States’ modern legal system had been established
In the Anglo-American adversary system,
the PARTIES to a dispute, or their advocates,
square off against each other and assume roles
that are strictly separate and distinct from that
of the decision maker, usually a judge or jury
The decision maker is expected to be objective
and free from bias Rooted in the ideals of the
American Revolution, the modern adversary
system reflects the conviction that everyone is
entitled to aDAY IN COURTbefore a free, impartial,
and independent judge Adversary theory holds
that requiring each side to develop and to present
its own proofs and arguments is the surest way to
uncover the information that will enable the
judge or jury to resolve the conflict
In an adversary system, the judge or jury is a
neutral and passive fact finder, dispassionately
examining the evidence presented by the parties
with the objective of resolving the dispute
between them The fact finder must remain
uninvolved in the presentation of arguments so
as to avoid reaching a premature decision
The Anglo-American requirement of an
impartial and passive fact finder contrasts with
the requirements of other legal systems For
example, most European countries employ
the INQUISITORIAL SYSTEM, in which a judge
investigates the facts, interviews witnesses, and
renders a decision Juries are not favored in an inquisitorial court, and the disputants are minimally involved in the fact-finding process
The main emphasis in a European court is the search for truth, whereas in an Anglo-American courtroom, truth is ancillary to the goal of reaching the fairest resolution of the dispute It has been suggested that the inquisitorial system, with its goal of finding the truth, is a more just and equitable legal system However, propo-nents of the adversary system maintain that the truth is most likely to emerge after all sides of a controversy are vigorously presented They also point out that the inquisitorial system has its own deficiencies, including abuse and corrup-tion European judges must assume all roles in a trial, including those of fact finder, evidence gatherer, interrogator, and decision maker
Because of these sometimes conflicting roles, European judges might tend to prejudge a case
in an effort to organize and dispose of it
Inquisitorial courts are far less sensitive to individual rights than are adversarial courts, and inquisitorial judges, who are government bureaucrats (rather than part of an independent judicial branch), might identify more with the government than with the parties Critics of the inquisitorial system argue that it provides little,
if any, check on government excess and that invites corruption,BRIBERY, andABUSE OF POWER The parties to an Anglo-American lawsuit are responsible for gathering and producing all
of the evidence in the case This challenge forces them to develop their arguments and to present their most compelling evidence, and it also preserves the neutrality and passivity of the fact finder The adversary process is governed by strict rules of evidence and procedure that allow both sides equal opportunity to argue their cases
These rules also help to ensure that the decision
is based solely on the evidence presented The structure of this legal system naturally encourages zealous advocacy by lawyers on behalf of their clients, but the code of ethics governing the conduct of lawyers is designed to curb the tendency to attempt to win by any means
The adversary system has staunch defen-ders as well as severe critics The image of the courtroom as a battleground or playing field where contestants vie for victory is evident in the news media’s preoccupation with who is
“winning” or “losing” or “scoring points” in such highly visible cases as the 1995 trial of
ADVERSARY SYSTEM 143
Trang 7O.J.SIMPSON, an actor, sportscaster, and former professional football player who was tried for killing his former wife, Nicole Brown Simpson, and her friend Ronald Goldman
The emphasis on “winning at all costs”
without commensurate concern for truth-seeking dismays some U.S citizens, and a growing number are demanding reforms in the legal system During the 1980s and 1990s, the use of alternative forms of dispute resolution such as MEDIATION and ARBITRATION grew dramatically
However, defenders of the adversary system note that these alternatives have been used all along, in the form of SETTLEMENT conferences, minitrials, and summary jury trials, and that
the vast majority of lawsuits are already settled before the parties ever appear in court When a dispute cannot be resolved without a trial, the adversary system is the established method of adjudication in the United States Indeed, the organized bar remains committed to the notion that vigorous advocacy by both sides
of a legal controversy ultimately leads the judge
or jury to the facts needed for a fair resolution and that it is the process that is best calculated to elicit the truth and to protect individual rights Although many concede that the adversary system is imperfect and that it may be subject
to abuse and manipulation, the majority still believe that, by giving all parties and their
The Adversary System: Who Wins? Who Loses?
The legal system in the United States
is known as an adversary system In
this system, the parties to a controversy
develop and present their arguments,
gather and submit evidence, call and
questionWITNESSES, and, within the
con-fines of certain rules, control the process
The fact finder, usually a judge or jury,
remains neutral and passive throughout
the proceeding
Critics pose some disturbing
ques-tions about the adversary system: Is justice
served by a process that is more
con-cerned with resolving controversies than
with finding the ultimate truth? Is it
possible for people with limited resources
to enjoy the same access to legal services
as wealthy people do? Does a system that
puts a premium on winning encourage
chicanery, manipulation, and deception?
The 1995 trial of O.J SIMPSON, an
actor, sportscaster, and professional
foot-ball player accused of murdering his
former wife and her friend, cast
unprec-edented scrutiny on the criminal justice
system and left many people wondering
whether truth or justice plays any role in
its operation Each day for over a year,
the trial was televised in the homes of
millions of people, most of whom had
never seen the inside of a courtroom
They were fascinated and repelled by prosecutors and defense attorneys who argued relentlessly about seemingly trivial points Even more disturbing to some viewers was the acrimonious name-calling that went on between the two sides as each attempted to discredit the other’s evidence and witnesses Likewise, the inability of federal prosecutors to convict reputed mob boss John Gotti Jr
after four trials in five years ended in hung juries (the last in 2009) bewildered some observers Defense attorneys are quick to point out that the Constitution guarantees that the accused is innocent unless found guilty in a court of law, and
it is impossible to protect the innocent without occasionally protecting the guilty Lawyers are obligated to challenge the evidence against their clients, even if that means impugning the police or attacking a victim’s or witness’s charac-ter It is their job to win anACQUITTALby whatever legal and ethical means lies within their power
Disparaging the legal system has become something of a national pastime
Indeed, criticism of the system comes from all corners of the landscape, including the top of the system itself
The late Chief Justice WARREN E BURGER
was outspoken in his lambasting of the system and of lawyers, asserting that they are too numerous and too zealous, that they file too many frivolous lawsuits and motions, and that there is general failure within the system to encourage out-of-court settlements Burger was a vocal proponent ofALTERNATIVE DISPUTE RESOLU-TION (ADR) He advocated the use of nonlitigious solutions such asMEDIATION
or ARBITRATION as a means of reducing court congestion Supporters of the adversary system point out that it is not clear that the savings reaped from ADR always outweigh the costs In situations where the parties are not at equal bargaining strength, questions arise as
to whether settlements are extracted through duress Some attorneys and litigants have noted that ADR is often
as adversarial in nature as LITIGATION, with evidence presented and slanted by counsel They further complain that there is no guarantee that an arbitrator will be informed about the subject matter
of the dispute and, therefore, no guaran-tee of a fair outcome
One criticism of the adversary sys-tem is that it is slow and cumbersome The judge, acting as a neutral fact finder, can do little to accelerate a trial, and
144 ADVERSARY SYSTEM
Trang 8advocates the opportunity to present evidence
and arguments before an impartial judge, it
promotes a free and pluralistic society with the
best available means of settling disputes
FURTHER READINGS
Burger, Warren E 1993 “Essays: The State of the Adversary
System 1993 ” Valparaiso Univ Law Review 27
(spring).
Doyle, Stephen, and Roger Haydock 1991 Without the
Punches: Resolving Disputes without Litigation
Minnea-polis: Equilaw.
Kagan, Robert A 2003 Adversarial Legalism: The American
Way of Law Cambridge, MA: Harvard Univ Press.
Landsman, Stephan 1984 The Adversary System: A
Descrip-tion and Defense Washington, D.C.: American Institute
for Public Policy Research.
——— 1988 Readings on Adversarial Justice: The American Approach to Adjudication Eagan, MN: West.
Olson, Walter K 1991 The Litigation Explosion New York:
Truman Talley.
CROSS REFERENCES Alternative Dispute Resolution; Civil Law; Common Law;
Inquisitorial System; Judge; Judiciary; Jury.
ADVERSE INTEREST The legal right or liability of a person called to testify as a witness in a lawsuit that might be lost or impaired if the party who called him or her to testify wins the case
This interest against the interest of the party calling a witness to the stand makes him or her
procedural and evidentiary rules further
slow the process Likewise, the wide
availability of appellate review means
that a final determination can take
years However, at least one study has
shown that in courts where adversarial
trials were discouraged and settlements
actively encouraged, litigants still
en-countered substantial delays in
RESOLU-TION Moreover, supporters of the
adversary system maintain that a
me-thodical, albeit cumbersome, system is
necessary for protection of individual
rights
It is fair to challenge the ethics of a
legal system that places a higher value on
winning than on truth seeking At least
one commentator has characterized the
system as one in which lawyers spend
more time avoiding truth than seeking it
But proponents argue that the vigorous
clash of opposing viewpoints eventually
yields the truth and that allowing the
sides to fight it out under specific rules
that guarantee fair play allows the truth
to surface on its own
Many other complaints have been
leveled against the U.S adversary system
Some feel that because the parties control
the litigation, they are encouraged to
present only the evidence that is
favor-able to them and to suppress evidence
that is unfavorable Criticism of attorneys
abounds Some feel that the lawyers’
ethics code encourages zealous
represen-tation at the expense of truth, making
attorneys, in the words of Burger,“hired
guns” (In re Griffiths, 413 U.S 717, 93 S
Ct 2851, 37 L Ed 2d 910[1973]) Others complain that lawyers file too many frivolous lawsuits and have become too dominant in the adversary process Some even say that the rules of evidence, designed to guarantee fairness to all parties, actually work against fairness by preventing important information from being presented to the fact finder
Defenders of the adversary system are quick to refute each criticism lobbed
at it They contend that it is necessary for the parties to control the litigation in order to preserve the neutrality of the judge and jury They point out that lawyers, although as susceptible to cor-ruption as any other group, are governed
by a code of ethical conduct that, when enforced, deals effectively with instances
of overreaching Plus, while conceding that evidentiary rules may be subject to manipulation, they vigorously maintain that such rules are the only means by which to ensure fairness and prevent judicial abuse
The criticism of the U.S legal system that may be most difficult to refute has to
do with accessibility It cannot be plausibly argued that an average criminal
DEFENDANT has the same access toLEGAL REPRESENTATIONas O.J Simpson or John Gotti Jr had, nor can it be argued that an injuredPLAINTIFF in a civil suit is in an equal bargaining position with a huge corporation Yet supporters of the adver-sary system counter that unequal access
to legal services is the result of economic and social conditions, not the structure
of the legal system and that changing the way legal services are delivered would do nothing to address the root causes of the disparity They also point out that the much criticized contingency fee arrange-ment, by which an attorney is paid a percentage of the award her or his client receives, opens the courts to members of the population who could not otherwise afford legal representation
Many legal experts agree that, in the long run, the adversary system results
in societal benefits that outweigh its inherent shortcomings By allowing all sides of a controversy to be heard, the system protects against ABUSE OF POWER
and forces those with the most at stake to focus on the issues in dispute At its worst, it can be manipulated to the benefit of those least deserving, but at its best, it offers every injured party a forum for relief, sometimes against powerful odds No doubt the arguments about whether and how to change the system will persist well into the twenty-first century This system, which has evolved over three hundred years, will probably undergo some changes But the basic values at its heart, such as
PRESUMPTION OF INNOCENCE, the right
to trial by jury, and protection of individual rights, appear to be firmly cemented as the cornerstones of U.S
JURISPRUDENCE
ADVERSE INTEREST 145
Trang 9an adverse orHOSTILE WITNESS Although usually the party calling a witness to TESTIFY cannot IMPEACH that person’s credibility, if the person has an adverse interest, the TESTIMONY may be discredited by the party who called that witness
to the stand
ADVERSE POSSESSION
A method of gaining legal title to real property by the actual, open, hostile, and continuous posses-sion of it to the excluposses-sion of its true owner for the period prescribed by state law Personal property may also be acquired by adverse possession
Adverse possession is similar to prescription, another way to acquire title to real property by occupying it for a period of time Prescription is not the same, however, because title acquired under it is presumed to have resulted from a lost grant, as opposed to the expiration of the statutory time limit in adverse possession
Real Property Title to land is acquired by adverse possession as
a result of the lapse of theSTATUTE OF LIMITATIONS for ejectment, which bars the commencement
of a lawsuit by the true owner to recover possession of the land Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made
The legal theory underlying the vesting of title by adverse possession is that title to land must be certain Because the owner has, by his
or her own fault and neglect, failed to protect the land against the hostile actions of the adverse possessor, an adverse possessor who has treated the land as his or her own for a significant period
of time is recognized as its owner
Title by adverse possession may be acquired against any person or corporation not excepted
by statute Property held by the federal govern-ment, a state, or aMUNICIPAL CORPORATIONcannot
be taken by adverse possession As long as the property has a public use, as with a highway or school property, its ownership cannot be lost through adverse possession
Anyone, including corporations, the federal government, states, and municipal corpora-tions, can be an adverse possessor
Elements In order that adverse possession ripen into LEGAL TITLE, nonpermissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established All of these elements must coexist if title is to be acquired by adverse possession The character, location, present state of the land, and the uses
to which it is put are evaluated in each case The adverse claimant has the burden of proving each element by a preponderance of the evidence Actual Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself Merely claiming the land or paying taxes on it, without actually possessing
it, is insufficient Entry on the land, whether legal or not, is essential A TRESPASS may com-mence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be estab-lished Physical acts must show that the possessor
is exercising the dominion over the land that an average owner of similar property would exer-cise Ordinary use of the property—for exam-ple, planting and harvesting crops or cutting and selling timber—indicates actual possession
In some states acts that constitute actual possession are found in statute
Open and Notorious An adverse possessor must possess land openly for all the world to see, as a true owner would Secretly occupying another’s land does not give the occupant any legal rights Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all The owner must have actual knowledge of the adverse use, or the claimant’s possession must be so notorious that it is generally known by the public or the people in the neighborhood The notoriety of the posses-sion puts the owner on notice that the land will
be lost unless he or she seeks to recover possession of it within a certain time
Exclusive Adverse possession will not ripen into title unless the claimant has had exclusive possession of the land Exclusive possession means sole physical occupancy The claimant must hold the property as his or her own, in opposition to the claims of all others Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession
146 ADVERSE POSSESSION
Trang 10An adverse claimant cannot possess the
property jointly with the owner Two people
may, however, claim title by adverse possession
as joint tenants if they share occupancy of the
land When others or the general public have
regularly used or occupied the land with the
adverse claimant, the requirement of exclusive
possession is not satisfied Casual use of the
property by others is not, however, inconsistent
with exclusive possession Generally, easements
do not affect the exclusive possession by an
adverse possessor In some jurisdictions
ease-ments exercised by the public or railroad rights
of way will destroy exclusive possession
Hostile Possession must be hostile,
some-times called adverse, if title is to mature from
adverse possession Hostile possession means
that the claimant must occupy the land in
opposition to the true owner’s rights There
need not be a dispute or fighting over title as
long as the claimant intends to claim the land
and hold it against the interests of the owner
and all the world Possession must be hostile
from its commencement and must continue
throughout the statutory period
One type of hostile possession occurs when
the claimant enters and remains on land under
COLOR OF TITLE Color of title is the appearance of
title as a result of a deed that seems by its
language to give the claimant valid title but, in
fact, does not because some aspect of it is
defective If a person, for example, was suffering
from a legal DISABILITY at the time he or she
executed a deed, the grantee-claimant does not
receive actual title But the grantee-claimant does
have color of title because it would appear to
anyone reading the deed that good title had been
conveyed If a claimant possesses the land in
the manner required by law for the full statutory
period, his or her color of title will become
actual title as a result of adverse possession
Continuous Adverse possession must be
continuous for the full statutory period if title is
to vest Continuity means regular, uninterrupted
occupancy of the land Mere occasional or
sporadic use is not enough Continuity is
sometimes explained as the daily control of the
land by the adverse claimant for the length of the
statutory period If a person has continuously
occupied only a part of all the land claimed
under adverse possession, he or she will acquire
title only to the occupied portion
While continuous possession is required for the acquisition of title by adverse possession, it
is not necessary that only one person hold the land continuously for the statutory period The time periods that successive adverse occupants have possessed the land may be added together
to meet the continuity requirement if PRIVITY exists between the parties The addition of these different periods is called tacking Privity refers
to the giving of possession of the land from one owner to the next so that it is continuously occupied by a possessor Privity exists between different persons whose interests are related to each other by a sale orINHERITANCEof the land or
byOPERATION OF LAW, as possession by aTRUSTEE
inBANKRUPTCY Tacking is permitted only when the posses-sion by the prior occupant had been adverse or under color of title If any time lapses between the end of one owner’s possession and the start
of another’s occupation, there is no continuity,
so tacking will not be allowed
Interruption of continuous possession deprives the adverse possessor of the legal effect
of his or her prior occupancy The statute of limitations will begin to run again from the time
he or she starts actual, open, hostile, notorious, and exclusive possession The length of the interruption is insignificant as long as it disturbs continuous possession At that time the law restores constructive possession of the land to the true owner
The commencement of a lawsuit by the owner against the occupant over the right of ownership and possession of the land is one way
to interrupt continuous possession It may be an action to quiet title, for trespass, for an INJUNCTIONinvolving possessive rights, or to file
a petition for registration of land title Such lawsuits will destroy the continuity of posses-sion only if successfully pursued to final judgments If the owner chooses to abandon
or SETTLE a suit or if a court dismisses it, the continuity of possession is not breached
The entry of the owner upon the land with the intent to repossess it is a clear exercise of ownership that disturbs possession A survey of the land made at the request of the true owner does not interrupt possession unless the purpose
is to help the true owner take possession The owner’s actions must be notorious and open so there can be no doubt as to what is intended
ADVERSE POSSESSION 147