Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P27 ppsx

An alteration is a variation made in the language or terms of a legal document that affects the rights and obligations of the parties to it.. When this occurs, the alteration is material

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becomes an instrument for the personal advan-tage of its parent corporation, stockholders, directors, or officers When a court applies it, the court is said to pierce the corporate veil

Courts have not traditionally applied the alter ego doctrine to other business forms, such

as partnerships and limited partnerships, be-cause partners generally do not enjoy the same form of limited liability as corporate stock-holders, officers, and directors By comparison, however, owners of limited liability companies may structure their business in a manner similar

to a corporation so that members and managers are shielded from personal liability for the debts

of the LIMITED LIABILITY COMPANY (LLC) Several courts have determined that the alter ego doctrine may also apply to LLCs For instance,

in Kaycee Land & Livestock v Flahive, 46 P.3d

323 (Wyo 2002), the Wyoming Supreme Court held that the equitable doctrine of piercing the veil was an available remedy under the Wyom-ing Limited Liability Company Act

CROSS REFERENCES Corporations; Immunity; Liability.

ALTERATION Modification; changing a thing without obliterat-ing it

An alteration is a variation made in the language or terms of a legal document that affects the rights and obligations of the parties

to it When this occurs, the alteration is material and the party who did not CONSENT to the change can be released from his or her duties under the document by a court

When an essential part of a writing has been cut, torn, burned, or erased, the alteration is also known as a mutilation The alteration of a document by someone other than a party to it

is called a spoliation

ALTERATION OF INSTRUMENTS

A change in the meaning or language of a legal document, such as a contract, deed, lease, or commercial paper, that is made by one party to the document without the consent of the other after

it has been signed or completed

If such a change is made by a THIRD PARTY

without the CONSENT of either party to the instrument, it is called aSPOLIATIONor mutilation

Method

The face of an instrument is changed by its alteration A difference in handwriting, a change

in words or figures, an erasure, and the striking out of particular words are some methods used to alter an instrument Since there must be a change

in the meaning or language of a document, retracing an original writing—as when a figure written in pencil is retraced in ink—is not an alteration

Material Changes

The alteration of an instrument materially changes it The document no longer reflects the terms that the parties originally intended to serve

as the basis of their legal obligation to each other

To be material, the change must affect an important part of the instrument and the rights

of the parties to it Any material alteration relieves the nonconsenting party of any obligation to perform according to the terms of the instrument

If the altered instrument is a contract, then the original contract is void The nonconsenting party cannot be legally obligated by the new contract since he or she never agreed to it A document that has been materially altered does not regain its original validity if it is restored to its original form

by erasing or deleting unauthorized words The date of an instrument is often consid-ered a material provision when it establishes the time within which the parties to a document must perform their obligations under it An unauthorized change of date that shortens the time of payment or extends the time of performance so that more interest will become due is a material alteration

An alteration of a signature that changes the legal effect of an instrument is material Erasing words that show that the signer is acting as an agent, for example, changes the signer’sLIABILITY

under the instrument and, therefore, is a material alteration However, when a signature that was improperly placed on a document is erased, there is no material alteration since the legal meaning of the document is not changed Any change in the terms of the instrument that affects the obligations of the parties is material In a contract to sell land on commis-sion, a change in the rate of commission is material A change in a description in a deed so that it transfers a smaller piece of land, a change

in the name of a purchaser in a sales contract, or

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an alteration in the terms of financing set forth

in aMORTGAGEis also material

Time of Alteration

A modification in a document before its

comple-tion is not an alteracomple-tion The parties are bound to

review the document and to have agreed upon its

terms before executing it In order for an alteration

to nullify the legal effect of an instrument, the

change must be made after its completion

Intention

A material change must be intentionally made

The motive behind the alteration is

unim-portant If a mistake or accident causes a change,

this is not considered a material alteration, but

the document may be reformed or rescinded

The Person Making the Change

The change to the instrument must be made by

a party or someone authorized by him or her to

do so No change made by a third person

without the consent of either party to the

document will invalidate it if its original terms

can be learned When a material alteration is

made by a party toCOMMERCIAL PAPER, such as a

check or PROMISSORY NOTE, the paper will be

enforced as originally written against the party

who made the changes

Consensual Alteration

A change in an instrument made with the

consent of the parties is binding upon them

SuchCONSENSUAL ALTERATIONis usually evidenced

by the signing by each party of his or her initials

and the date that the agreement to the changes

to the instrument was reached

ALTERNATIVE DISPUTE RESOLUTION

Procedures for settling disputes by means other than

litigation; e.g., by arbitration, mediation, or

minitrials Such procedures, which are usually less

costly and more expeditious than litigation, are

increasingly being used in commercial and labor

disputes, in divorce actions, in resolving motor

vehicle and medical malpractice tort claims, and in

other disputes that would likely otherwise involve

court litigation

In the late 1980s and early 1990s, many

people became increasingly concerned that the

traditional method of resolving legal disputes

in the United States, through conventional

LITIGATION, had become too expensive, too slow,

and too cumbersome for many civil lawsuits (cases between private parties) This concern led

to the growing use of ways other than litigation

to resolve disputes These other methods are commonly known collectively as “alternative dispute resolution” (ADR)

As of the early 2000s, ADR techniques were being used more and more, as parties and lawyers and courts realized that these techniques could often help them resolve legal disputes quickly and cheaply and more privately than could conven-tional litigation Moreover, many people pre-ferred ADR approaches because they saw these methods as being more creative and more focused on problem solving than litigation, which has always been based on an adversarial model

To some degree, the term alternative dispute resolution is a misnomer In reality, fewer than

5 percent of all lawsuits filed go to trial; the other 95 percent are settled or otherwise con-cluded before trial Thus, it is more accurate to think of litigation as the alternative and ADR as the norm Despite this fact, the term alternative dispute resolution has become such a well-accepted shorthand for the vast array of non-litigation processes that its continued use seems assured

Although certain ADR techniques are well established and frequently used—for example, mediation and arbitration—alternative dispute resolution has no fixed definition It includes a wide range of processes, many with little in common except that each is an alternative to full-blown litigation Litigants, lawyers, and judges are constantly adapting existing ADR processes

or devising new ones to meet the unique needs of their legal disputes The definition of alternative dispute resolution is constantly expanding to include new techniques

ADR techniques have not been created to undercut the traditional U.S court system Cer-tainly, ADR options can be used in cases where litigation is not the most appropriate route How-ever, they can also be used in conjunction with litigation when the parties want to explore other options but also want to remain free to return to the traditional court process at any point

Of the many litigation alternatives to re-solve a legal dispute, mediation, arbitration, mediation-arbitration, minitrial, early neutral evaluation, summary jury trial, and collabora-tive law are the most common

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Mediation—also known as “conciliation”—is the fastest-growing ADR method Unlike liti-gation, mediation provides a forum in which

parties can resolve their own disputes, with the help of a neutralTHIRD PARTY

Mediation depends upon the commitment of the disputants to solve their own problems The

A sample form used

in alternative dispute

resolution

ILLUSTRATION BY GGS

CREATIVE RESOURCES.

REPRODUCED BY

PERMISSION OF GALE,

A PART OF CENGAGE

LEARNING.

NAME OF COURT:

ADR Information Form

This form should be filled out and returned, within 10 days of the resolution of the dispute, to:

1 Case name: _ No _

2 Type of civil case: PI/PD-Auto PI/PD-Other Contract Other (specify):

3 Date complaint filed _ Date case resolved _

4 Date of ADR conference _ 5 Number of parties _

6 Amount in controversy: $0–$25,000 $25,000–$50,000 $50,000–$100,000 over $100,000 (specify) _

7 Plaintiff's Attorney Cross Complainant's Attorney 8 Defendant's Attorney Cross Defendant's Attorney

_

( _) _ ( _)

9 Please indicate your relationship to the case:

Plaintiff Plaintiff's attorney Defendant Defendant's attorney

3rd party defendant 3rd party defendant's attorney Other (specify):

10 Dispute resolution process:

Mediation Arbitration Neutral case evaluation Other (specify): _

11 How was case resolved?

a As a direct result of the ADR process.

b As an indirect result of the ADR process c Resolution was unrelated to ADR process.

12 Check the closest dollar amount that you estimate you saved (attorneys fees, expert witness fees, and other costs) by using this dispute resolution process compared to resolving this case through litigation, whether by settlement or trial.

$0 $250 $500 $750 $1,000 more than $1,000 (specify): $ _

13 If the dispute resolution process caused a net increase in your costs in this case, check the closest dollar amount of the additional

cost:

$0 $250 $500 $750 $1,000 more than $1,000 (specify): $ _

14 Check the closest number of court days that you estimate the court saved (motions, hearings, conferences, trial, etc.) as a result of this case being referred to this dispute resolution process:

0 1 day more than 1 day (specify): _

15 If the dispute resolution process caused a net increase in court time for this case, check the closest number of additional court

days:

0 1 day more than 1 day (specify):

16 Would you be willing to consider using this dispute resolution process again? Yes No

Alternative Dispute Resolution Information Form

Form Adopted by the Judicial Council of California ADR-101 [New March 1, 1994]

WEST GROUP

Official Publisher

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mediator, also known as a “facilitator,” never

imposes a decision upon the parties Rather, the

mediator’s job is to keep the parties talking and to

help move them through the more difficult

points of contention To do this, the mediator

typically takes the parties through five stages

First, the mediator gets the parties to agree

on procedural matters, such as by stating that

they are participating in the mediation

volun-tarily, setting the time and place for future

sessions, and executing a formal confidentiality

agreement One valuable aspect of this stage is

that the parties, who often have been unable to

agree on anything, begin a pattern of saying yes

Second, the parties exchange initial

posi-tions, not by way of lecturing the mediator but

in a face-to-face exchange with each other

Often, this is the first time each party hears the

other’s complete and uninterrupted version

The parties may begin to see that the story has

two sides and that it may not be so

unreason-able to compromise their initial positions

Third, if the parties have agreed to what is

called a “caucusing procedure,” the mediator

meets with each side separately in a series of

confidential, private meetings and begins

explor-ingSETTLEMENTalternatives, perhaps by engaging

the parties in some“reality testing” of their initial

proposals This process, sometimes called shuttle

diplomacy, often uncovers areas of flexibility that

the parties could not see or would have been

uncomfortable putting forward officially

Fourth, when the gap between the parties

begins to close, the mediator may carry offers

and counteroffers back and forth between them,

or the parties may elect to return to a joint

session to exchange their offers

Finally, when the parties agree upon the

broad terms of a settlement, they formally

reaffirm their understanding of that settlement,

complete the final details, and sign a settlement

agreement

Mediation permits the parties to design and

retain control of the process at all times and,

ideally, eventually strike their own bargain

Evidence suggests that parties are more willing

to comply with their own agreements, achieved

through mediation, than with adjudicated

decisions, which are imposed upon them by

an outside party such as a judge

One additional advantage is that when the

parties reach agreement in mediation, the

dispute is over—they face no appeals, delays, continuing expenses, or unknown risks The parties can begin to move forward again Unlike litigation, which focuses on the past, mediation looks to the future Thus, a mediated agreement

is particularly valuable to parties who have an ongoing relationship, such as a commercial or employment relationship

Arbitration

Arbitration more closely resembles traditional litigation in that a neutral third party hears the disputants’ arguments and imposes a final and binding decision that is enforceable by the courts

The difference is that in arbitration, the dis-putants generally agreed to the procedure before the dispute arose; the disputants mutually decide who will hear their case; and the proceedings are typically less formal than in a court of law One extremely important difference is that, unlike court decisions, arbitration offers almost no effective appeal process Thus, when an arbitra-tion decision is issued, the case is ended

Final and binding arbitration has long been used in labor-management disputes For dec-ades, unions and employers have found it mutually advantageous to have a knowledge-able arbitrator—whom they themselves have chosen—resolve their disputes in this cheaper and faster fashion One primary advantage for both sides has been that taking disputes to arbitration has kept everyone working by providing an alternative to strikes and lockouts and has kept everyone out of the courts Given this very successful track record, the commer-cial world has become enthusiastic about arbitration for other types of disputes as well

A new form of arbitration, known as “court-annexed arbitration,” has emerged Many variations of court-annexed arbitration have developed throughout the United States One can be found in Minnesota, where, in the mid-1990s, the Hennepin County district court adopted a program making civil cases involving less than $50,000 subject to mandatory non-binding arbitration The results of that experi-mental program were so encouraging that legislation was later enacted expanding the arbitration program statewide Most cases were channeled through an ADR process before they could be heard in the courts A growing number

of other federal and state courts were adopting this or similar approaches

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As its name suggests, mediation-arbitration, or

“med-arb,” combines mediation and arbitra-tion First, a mediator tries to bring the parties closer together and help them reach their own agreement If the parties cannot compromise, they then proceed to arbitration—before that same third party or before a different arbitrator—

for a final and binding decision

Minitrial

The minitrial, a development in ADR, is finding its greatest use in resolving large-scale disputes involving complex questions of mixed law and fact, such as PRODUCT LIABILITY, massive con-struction, and antitrust cases In a minitrial, each party presents its case as in a regular trial, but with the notable difference that the case

is “tried” by the parties themselves, and the presentations are dramatically abbreviated

In a minitrial, lawyers and experts present a condensed version of the case to top manage-ment of both parties Often, a neutral adviser—

sometimes an expert in the subject area—sits with management and conducts the hearing

After these presentations, top management representatives—by now more aware of the strengths and weaknesses of each side—try to

NEGOTIATEa resolution of the problem If they are unable to do so, they often ask for the neutral adviser’s best guess as to the probable outcome of the case They then resume negotiations

The keys to the success of this approach are the presence of both sides’ top officials and the exchange of information that takes place during the minitrial Too often, prelitigation work has insulated top management from the true strengths and weaknesses of their cases Mini-trial presentations allow them to see the dispute

as it would appear to an outsider and set the stage for a cooperative settlement

Early Neutral Evaluation

An early neutral evaluation (ENE) is used when one or both parties to a dispute seek the advice

of an experienced individual, usually an attor-ney, concerning the strength of their cases An objective evaluation by a knowledgeable

outsid-er can sometimes move parties away from unrealistic positions, or at least provide them with more insight into their cases’ strengths and weaknesses Of course, the success of this technique depends upon the parties’ faith in

the fairness and objectivity of the neutral third-party, and their willingness to compromise

Summary Jury Trial

Summary jury trials have been used primarily in the federal courts, where they provide parties with the opportunity to “try” their cases in

an abbreviated fashion before a group of jurors, who then deliberate and render an ADVISORY OPINION

Like an early neutral evaluation, an advisory opinion from a summary jury trial can help the parties assess the strengths and weaknesses of their cases and sometimes can facilitate the settlement of the dispute Another advantage of the summary jury trial, which it has in common with the minitrial, is that it can be scheduled much sooner than a trial When early evalua-tions help the parties SETTLE their cases, the parties typically avoid much of the delay, expense, and anxiety that occurs in litigation

Collaborative Law

Collaborative Law, sometimes referred to as

“collaborative practice” or “collaborative di-vorce,” is a form of alternative dispute resolu-tion used forDIVORCEor legalFAMILY LAWdisputes

In this process, the goal is to resolve the conflict outside of the courtroom by entering into a series of joint sessions with the two parties, their lawyers, and neutral experts The primary focus

of the meetings or joint sessions is to settle the dispute by identifying the priorities, goals, needs, and interests of the parties and helping them work together toward a settlement that is consistent with such goals and needs Unlike mediation, in the collaborative law process the parties agree at the beginning of the dispute to settle the case outside of court In addition, while going through the process, the attorneys facilitate the negotiations, and the parties are fully informed of the law and any legal con-sequences regarding their various decisions and options As of September 2009, California, North Carolina, and Texas had implemented statutes regarding collaborative divorce Other courts have implemented local court rules regarding the collaborative law process for their jurisdiction In addition, the National Confer-ence of Commissioners on Uniform State laws,

on July 15, 2009, adopted the Uniform Collabo-rative Law Act, which will be presented to state legislatures for enactment

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ADR by Statute and Regulation

Since the late 1980s, Congress has recognized

that ADR provides a cost-efficient alternative to

traditional methods for dispute resolution In

1988, Congress enacted the Judicial

Improve-ments and Access to Justice Act, 28 U.S.C.A

§ 652 (1993 & Supp 2003), which permitted

U.S district courts to submit disputes to

arbi-tration Congress amended this statute with the

enactment of the Alternative Dispute Resolution

Act of 1998, Pub L No 105-315, 112 Stat 2994

(28 U.S.C.A § 652), which requires each district

court to require, by local rule, that litigants in all

civil cases consider using an ADR process at the

appropriate state of litigation

Local rules of U.S district courts typically

provide a wide array of ADR methods For

example, the U.S District Court for the Western

District of Texas recognizes early neutral

evalua-tion, mediaevalua-tion, minitrial, moderated settlement

conference, summary jury trial, and arbitration

as acceptable forms of ADR According to these

rules, the court may order ADR on the motion of

a party, on agreement of both parties, or on its

own motion Most other district courts have

adopted similar rules Congress has also included

ADR provisions in a number of statutes to

resolve a variety of disputes For example, the

Board of Directors of the Office of Compliance,

which reviews complaints brought by employees

of Congress, may order counseling or mediation,

in addition to holding a board hearing or

initiating aCIVIL ACTION in federal court 2 U.S

C.A § 1401 (1997) Similar statutes apply to such

conflicts as labor disputes and claims by

individuals with disabilities

State legislatures have similarly provided for

ADR in many of their statutes Judges in Florida,

for example, possess authority to submit most

types of cases to mediation or arbitration in lieu

of litigation Fla Stat § 44.1011 (1997) The

COMMISSIONERS ON UNIFORM LAWS have approved

several uniform laws, which may be adopted by

the various states, related to ADR proceedings

Versions of the Uniform Arbitration Act, first

approved in 1956, have been adopted by 49 states

Likewise, the Uniform Mediation Act, drafted in

conjunction with the American Bar Association’s

Section on Dispute Resolution in 2001, provides

rules on the issues of confidentiality and

privileges in mediation

ADR has had an impact on administrative

agencies as well Congress amended the

Administrative Procedure Act in 1990 to autho-rize and encourage administrative agencies

to submit administrative disputes to ADR (5 U.S.C.A § 572 [1996]) ADR often takes the form of mediation in disputes involving labor and employment relations and equal employ-ment opportunity Several federal agencies provide guides about ADR proceedings to pro-spective complainants and other constituents

Courts frequently uphold decisions made during ADR proceedings In Major League Baseball Players Association v Garvey, 532 U.S

504, 121 S Ct 1724, 149 L Ed 2d 740 (2001), the U.S Supreme Court reviewed a decision in which the U.S Court of Appeals for the Ninth Circuit had reversed a decision of an arbitration panel regarding a complaint by former baseball player Steve Garvey about a contract dispute

The Ninth Circuit then remanded the case to the arbitration panel with instructions to enter

an award in favor of the player for the amount

he claimed Noting thatJUDICIAL REVIEWof labor arbitration decisions is limited, the Supreme Court reversed the Ninth Circuit’s decision, holding that it was not the place of a court of appeals to resolve the dispute on its merits

In 2008 the Supreme Court issued additional decisions pertaining to its role of reviewing arbitration decisions In Hall Street Associates, L.L.C v Mattel, Inc., the Court held that parties who enter into an agreement to arbitrate cannot contractually change the statutory grounds for modifying or vacating the arbitration award It noted that the grounds for vacating an arbitration award under the Federal Arbitration Act are exclusive and could not be expanded to include either evidentiary or legal review Thus, the decision further upheld the limited role of judicial review of an arbitrator’s decision In the 8–1 decision written by Justice RUTH BADER GINSBURG in Preston v Ferrer, the Court held that the question of whether a contract is unenforceable under California’s Talent Agen-cies Act is a question that must be decided by an arbitrator rather than the court Specifically Justice Ginsburg wrote in the decision that when the parties have a contract that includes an arbitration clause, the Federal Arbitration Act supersedes state laws that provide for a specific forum to resolve the dispute In that case, the Court held that the decision to determine whether the contract was enforceable was for the arbitrator rather than the state’s labor commissioner

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FURTHER READINGS International Academy of Collaborative Professionals.

Home page: http://www.collaborativepractice.com (accessed on September 21, 2009).

Meek, Susan B 1996 Alternative Dispute Resolution Tucson, Az.: Lawyers and Judges.

National Conference of Commissioners on Uniform State Laws Home page: http://www.nccusl.org (accessed on September 21, 2009).

Nolan-Haley, Jacqueline M 2008 Alternative Dispute Resolution in a Nutshell St Paul, Minn.: West Group.

Ware, Stephen J 2001 Alternative Dispute Resolution St.

Paul, Minn.: West Group.

ALTERNATIVE RELIEF Remedies sought in a lawsuit in various forms or

in the alternative, such as a demand for specific performance of a contract or monetary damages to compensate for the failure to perform the obliga-tion, or both

Modern rules governing PLEADINGin courts specifically permit a party to demand relief in the alternative This eliminates the harsh con-sequences of the rule of COMMON-LAW PLEADING

that required a party to make one demand for one type of relief and to lose the case if a different remedy were more appropriate A party can ask for alternative forms of relief and recover what is later proved to be most appropriate at trial

ALTERNATIVE WRIT

An order, issued originally by the king in England but more recently by a court, commanding a person

to do a specific thing or to appear and explain why

he or she should not be compelled to do it Under theCOMMON LAW, the writs of PROHIBI-TION and MANDAMUS were alternative writs In modern systems of court procedure, an order to

SHOW CAUSE serves the same purpose It com-mands a person to do something or come into court and show cause why he or she should not

be made to do it

AMBASSADORS AND CONSULS

An ambassador is the foreign diplomatic repre-sentative of a nation who is authorized to handle political negotiations between his or her country and the country where the ambassador has been assigned A consul is the commercial agent of a nation, who is empowered only to engage in business transactions, and not political matters in the country where he or she is stationed

The president with theCONSENTof the Senate appoints ambassadors and consuls whereas the

SECRETARY OF STATE appoints staff officers and other subordinate employees

Powers and Duties

The powers of an ambassador are specified in his

or her credentials, or documents of introduc-tion, which the ambassador submits to the foreign government In addition to responsibility for political negotiations, an American ambassador may initiate LEGAL PROCEEDINGS on behalf of the United States and defend suits instituted against it A foreign ambassador in the United States has similar duties regarding his or her government

In general, a consul is authorized to safeguard the legal rights and property interests of the citizens of his or her country and to appear in court to ascertain that the laws of the nation where

he or she is assigned are administered impartially

to all of the ambassador’s compatriots A U.S citizen who has legal difficulties in a foreign country should consult the United States consul

CONSULS are also empowered and obligated

to protect the estates of their countrymen and -women who die within their consular districts This duty terminates when the decedent’s heirs are represented by an attorney

Pete Peterson, the first

U.S ambassador to

Vietnam since the end

of the Vietnam War,

presents his

diplomatic credentials

to the vice president of

Vietnam, Nguyen Thi

Binh, in Hanoi on

May 14, 1997.

AP IMAGES

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Diplomatic Immunity

The development of harmonious international

relations and protection against arrest,

harass-ment, or other unjustified actions taken against

diplomatic representatives constitute the

objec-tives of DIPLOMATIC IMMUNITY The Vienna

Convention on Diplomatic Relations, which

became effective as part of the federal law in

1972, governs diplomaticIMMUNITY by granting

various degrees of immunity from civil and

criminalLIABILITYto the members of diplomatic

missions

Diplomatic Agents The supervisor of a

mis-sion, such as an ambassador, and members of

the mission staff who possess diplomatic rank

areDIPLOMATIC AGENTS Such an agent is immune

from criminal liability in the nation in which he

or she serves, but the commission of a crime

may result in a recall request to the

ambassa-dor’s country His or her expulsion may ensue

upon the refusal of any such request

In addition, a diplomatic agent is immune

from civil lawsuits, except for actions involving

estates, when he or she is the executor,

administrator, or BENEFICIARY; actions

concern-ing real property held by the diplomatic agent

for personal, not official functions; and actions

relating to professional or business activities

that are beyond the scope of diplomatic duties

A diplomatic agent is not required toTESTIFYas a

witness; and the family members living in the

agent’s household enjoy the same immunities

Due to the hardship imposed on the victims of

motor vehicle accidents in the United States

caused by foreign diplomats who have diplomatic

immunity, federal law mandates that mission

members and their families insure their personal

motor vehicles, boats, and airplanes If the mission

has similar vehicles registered in its name, it also

must purchase liability insurance An action for

DAMAGES for property loss, personal injuries, or

WRONGFUL DEATHcan be maintained directly against

the diplomat’s insurance company and is tried by

the court, presiding without a jury

Staff Members The administrative and

techni-cal staffs and families and household members

of the mission are completely immune from

criminal liability, but are immune from civil

liability only for official acts Similar rules apply

to members of the service staff employed as

domestics, but their families and private

servants employed by staff members are not so

protected against liability

Consuls Consuls are not diplomatic agents and, therefore, they are usually amenable to civil lawsuits and criminal prosecution in the country where they are assigned Federal law, however, extends immunity to consuls from all suits and proceedings in state courts This prevents any embarrassment to foreign nations that might ensue from such proceedings

Other Exemptions Diplomatic agents in the United States and the members of their house-holds are generally exempt from federal, state, and MUNICIPAL taxes They are responsible, however, for indirect taxes that are part of the price of goods, taxes on property inherited from

a citizen, taxes on any real property they own privately, or capital gains taxes on profits from personal investments Diplomatic agents have

no obligation to serve in the U.S armed forces

These exemptions also apply to the administra-tive and technical staffs of the mission and their families The service staff and private servants are exempt from taxes on wages received from their employment with the mission or its members

FURTHER READINGS Keeley, Robert V., ed 2000 First Line of Defense:

Ambassadors, Embassies, and American Interests Abroad.

Washington, D.C.: American Academy of Diplomacy.

Lehman, Daniel J 2002 “The Federal Republic of Germany

v The United States of America: The Individual Right

to Consular Access ” Law & Inequality: A Journal of Theory and Practice 20, vol 2 (summer).

Pittman, Andrew B 2001 “Ambassadorial Waiver of Foreign State Sovereign Immunity to Domestic Adju-dication in United States Courts ” Washington and Lee Law Review 58 (spring).

CROSS REFERENCES Diplomatic Agents; Diplomatic Immunity; International Law; State Department.

AMBER ALERT

A national law enforcement early warning plan designed to help find missing or abducted children

by broadcasting information over radio, television, the Internet, and roadside signs as quickly as possible

The ABDUCTION of a child by a relative or stranger requires immediate action by law en-forcement officials Beginning in the 1990s, some states and communities developed early warning plans that informed the public immediately about

a missing child by using the electronic news media and roadside signs These plans, which have come

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to be known as AMBER Alerts, have proved popular, though some researchers question their true effectiveness Congress enacted a law in 2003 that gave the federal government a role in coordinating such plans

The 1996 KIDNAPPING and MURDER of Amber Hagerman in Texas triggered the first early warning plan The Dallas/Fort Worth Association

of Radio Managers worked with local law enforce-ment officials in north Texas to establish what they called the AMBER Alert plan Though named after Amber Hagerman, AMBER also served as an acronym for America’s Missing: Broadcast Emer-gency Response The first AMBER plan called on broadcasters to provide information over radio and television as soon as possible This information included descriptions and pictures of the missing child, the suspected abductor, a suspected vehicle, and any other information that could prove helpful

in locating the child

The AMBER Alert concept spread quickly around the United States By 2002, 18 states had enacted such plans and local communities in other states set up their own AMBER Alert plans

Proponents claimed that the alerts had proved effective and urged Congress to enact a law that would make AMBER Alerts a national program

Congress responded by including an AMBER Alert provision in the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 (Pub

L No 108-21, 117 Stat 650) Under the statute, theDEPARTMENT OF JUSTICE, in cooperation with the

DEPARTMENT OF TRANSPORTATION and the FEDERAL COMMUNICATIONS COMMISSION (FCC), appoints a National AMBER Alert coordinator to oversee the communication network The coordinator works with states, broadcasters, and law enforce-ment agencies to set up and coordinate AMBER plans Grants are provided to help set up AMBER Alert programs

The federal government does not mandate that each state follow one type of plan Instead, each state AMBER Alert plan has its own criteria for issuing AMBER Alerts The national coordinator does issue minimum standards for AMBER Alerts that states can adopt voluntarily

Most states have followed these criteria The key criteria are as follows:

n Law enforcement must confirm that an

abduction has taken place

n The child must be at risk of serious injury

or death

nThere is sufficient descriptive information

of child, captor, or captor’s vehicle to issue

an alert

nThe child must be 17 years old or younger.

nImmediate entry of AMBER Alert data is

entered in FBI’s National Crime Informa-tion Center

Many states have also formal memorandums

of understanding with other states By 2009 there were 28 regional plans as well If law enforcement believes that the child has been taken across state lines, the AMBER state coordinator asks that state to issue an alert Even if there is no formal agreement between states, many have informal arrangements to issue AMBER Alerts upon request

The federal AMBER coordinator issues an annual report that analyzes the number of alerts issued, the various classifications of abductions, and their RESOLUTION There are four classifica-tions: family abduction; nonfamily abduction; lost, injured, or otherwise missing; and endan-gered runaway A family abduction occurs when

an individual between birth and 17 years of age

is abducted from his or her custodial parent or legalGUARDIANby a noncustodial family member who is related to the child by blood orMARRIAGE

A nonfamily abduction occurs when a child, age

17 or younger, is abducted by someone who is unknown to the child or his or her family, an acquaintance, or someone who is unidentifiable

as either The classification of lost, injured, or otherwise missing refers to any missing child where there are insufficient facts to determine the cause of a child’s disappearance as well as any child age 10 or younger who is missing on his or her own accord An endangered runaway

is any missing child between 11 and 17 years of age, who is missing on his or her own accord without permission from his or her parent or legal guardian

The 2008 report disclosed that in 2008, 194 AMBER Alert cases were issued in the United States involving 256 children in 36 states; 166 cases resulted in recovery, but only 40 were the direct result of an AMBER Alert Of these alerts,

50 percent were statewide alerts, 40 percent were regional alerts, and 18 percent were local Out of the 194 alerts, 6 percent were found

to be hoaxes and 7 percent were eventually determined to be unfounded Girls constituted

58 percent of the alerts, with more than half of all the children under the age of five Of the 162

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abductors, 118 had previous relationships with

the children Most significantly, 67 percent of

the children were recovered on the same day the

alert was issued

Critics of AMBER Alerts have expressed

concerns about alert fatigue If the citizens are

constantly presented with alerts, they may

eventually tune out the information that is

presented A study of the 233 Amber Alerts

issued in 2004 also revealed that stranger

abductions, which are the most publicized

cases, constituted only 30 percent of the alerts

Family abductions accounted for 50 percent of

the alerts, and 20 percent were hoaxes or

unfounded Another study challenged the claim

that the alerts saved as many lives as claimed

Successful recovery is most likely when the

victim is abducted by a parent, who rarely

harms the child

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