BABY M, IN REIn 1988 the New Jersey Supreme Court declared surrogacy contracts void against state PUBLIC interests of the child born to the surrogate mother required that custody of that
Trang 1applicability of this rule is whether the employ-ment or services of the plaintiff were personal in nature The rule is not applicable in contracts that do not require all, or a significant portion,
of the plaintiff’s time, or those that do not preclude the plaintiff from becoming engaged in simultaneous performance of other contracts
Torts
A party who suffers aPERSONAL INJURYis required to exercise ordinary care and perseverance to find a cure, thereby reducing the damages to the most practicable extent Such an individual should seek reasonable medical care if so required by the injury
It is not necessary for the person to undergo excessively painful treatment or that which involves
a significant hazard of death or injury or offers a mere possibility of a cure The pain inherent in the necessary medical care and treatment may be taken into consideration in assessing whether the plaintiff acted reasonably in declining to submit to it
Although submission to treatment is not a prerequisite to an award of damages, recovery cannot be obtained for increased damages that stem from the failure to submit to necessary medical treatment Conversely, the mere fact that medical attention was not sought immediately, or
at all, will not proscribe an award of damages where the circumstances did not reasonably indicate that medical aid and attention was necessary
In addition, an injured party has no absolute duty to subscribe to a physician’s advice to miti-gate damages The party might, however, under some circumstances, be under an OBLIGATION to exercise ordinary care in following such advice
CROSS REFERENCE Mitigation of Damages.
AVOIDANCE
An escape from the consequences of a specific course of action through the use of legally acceptable means Cancellation; the act of render-ing somethrender-ing useless or legally ineffective
A taxpayer may take all legally recognized deductions in order to minimize theINCOME TAX
and is legal If, however, a taxpayer claims deductions to which he or she is not entitled so that the individual pays less income tax than is actually owed, then the taxpayer has committed
imprisonment, or both
that admits the truth of allegations made in former PLEADING but presents new information that neutralizes or avoids the legal ramifications
of those admitted facts
AVOWAL
An open declaration by an attorney representing a party in a lawsuit, made after the jury has been removed from the courtroom, that requests the admission of particular testimony from a witness that would otherwise be inadmissible because it has been successfully objected to during the trial
An avowal serves two purposes It enables
witness would have replied to a question had opposing counsel not made an objection to the question sustained by the court It also provides the interrogator with an opportunity to offer evidence that contradicts the disputedTESTIMONY
If, upon appeal, an appellate court decides that
a witness should have been allowed to respond
to such questions before a jury, an avowal will
be a record of the witness’s response
AVULSION The immediate and noticeable addition to land caused by its removal from the property of another, by a sudden change in a water bed or
in the course of a stream
When a stream that is a boundary suddenly abandons its bed and seeks a new bed, the boundary line does not change It remains in the center of the original bed even if water no longer flows through it This is known as the rule of avulsion
Avulsion is not the same as accretion or alluvion, the gradual and imperceptible buildup
of land by the continuous activity of the sea, a river, or by other natural causes
AWARD
To concede; to give by judicial determination; to rule
in favor of after an evaluation of the facts, evidence, or merits The decision made by a panel of arbitrators or commissioners, a jury, or other authorized indivi-duals in a controversy that has been presented for resolution A document that memorializes the determination reached in a dispute
A jury awards damages; a MUNICIPAL
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
458 AVOIDANCE
Trang 2BABY M, IN RE
In 1988 the New Jersey Supreme Court declared
surrogacy contracts void against state PUBLIC
interests of the child born to the surrogate
mother required that custody of that child be
awarded to the biological father and his wife,
with liberalVISITATION RIGHTSlater being granted
to the biological mother In the Matter of Baby
M, 109 N.J 396, 537 A.2d 1227 (N.J 1988)
Mary Beth Whitehead entered into a
contract with William Stern in which she agreed
to be artificially inseminated with Stern’s sperm
At the time, Mary Beth was married to Richard
Whitehead, with whom she had two children
In the Surrogate Parenting Agreement Mary Beth
agreed that after the baby was born she would
relinquish the baby to Stern and his wife
Elizabeth and would permit the termination of
her parental rights so that the Sterns could
adopt the baby In return the Sterns would pay
Whitehead the sum of $10,000, plus expenses
Elizabeth Stern was not a party to the contract
Richard Whitehead did not object to the
contract and acknowledged that his wife would
be artificially inseminated by Stern’s sperm
Prior to the Baby M case, surrogacy agreements
had been most often used when the wife of the
adopting couple was infertile But in the Baby M
case Elizabeth Stern was not infertile Instead
the Sterns decided not to have Elizabeth bear a
child due to the possibility that being pregnant
would exacerbate her multiple sclerosis
Under the Surrogate Parenting Agreement, Mary Beth was not entitled to payment of her
$10,000 fee until after the child was born, surrendered to the Sterns, and her parental rights had been terminated The contract also provided that the Whiteheads would receive no compensation if the child was miscarried prior
to the fifth month of pregnancy and would receive only $1,000 if the child was miscarried after that time Additionally, Whitehead re-nounced her right to have anABORTION, unless it was medically necessary
Whitehead gave birth to a baby girl named Melissa on March 27, 1986 She turned custody
of the child over to the Sterns on March 30,
1986, but immediately regretted doing so Alarmed by Whitehead’s anxieties and fearing that she might commit SUICIDE, the Sterns allowed her to have temporary custody of the child After Whitehead refused to return the baby to the Sterns, William Stern filed an ex-parte application for an order to SHOW CAUSE
why the Superior Court of New Jersey should not issue an order for SUMMARY JUDGMENT to enforce the surrogacy contract and a verified complaint seeking specific enforcement of the contract The complaint sought injunctive relief
to obtain custody, termination of Whitehead’s parental rights, and an order allowing the Sterns
to adopt Melissa
The trial court issued aTEMPORARY
White-heads to surrender Melissa to William Stern
B
Trang 3The Whiteheads refused to surrender the child, instead removing her from the state of New Jersey and taking her to Florida While in Florida, Mary Beth Whitehead threatened to kill the child if Stern did not drop his case to enforce the surrogacy contract She also threat-ened to accuse William Stern of sexually abusing Whitehead’s other daughter Melissa was later recovered by law enforcement officials
in Florida and returned to New Jersey, where the Sterns assumed custody under the New Jersey court order
The case then proceeded to a trial on the merits During trial Mary Beth stressed the bond that had developed between her and Melissa, especially after the child’s birth
Whitehead testified that she intended to turn over Melissa to the Sterns but that after the child was born she was emotionally unable to
do so She testified that she felt an obligation to the Sterns but said that the“the obligation [she]
felt to[her] child was stronger.” Whitehead also offeredTESTIMONYby child development experts who testified as to the important and the unique role played by the biological mother in a child’s early development and the harm that can result
to both the child and the biological mother when the two are separated immediately after birth
at trial focused on the best interests of the child
For example, one doctor focused on the question of whether the Sterns or the White-heads would be better suited to meet the needs
of the child, concluding that the Sterns would
be able to make the child feel more wanted, provide more emotional stability for the child, provide more educational support, offer greater capacity to explain to the child what happened
in the circumstances of her conception and birth, and better assist the child in reaching maturity Another doctor testified that the Sterns could provide a stable and financially secure household, while the Whitehead house-hold was dominated by Mary Beth Whitehead, who had established a pattern of dealing with her children by“inhibiting their development of independence.”
The trial lasted 32 days and consisted of testimony from 23 lay WITNESSESand 15 expert witnesses Ultimately, the trial judge declared the surrogacy contract valid and enforceable, awarded custody of Melissa to William and
Elizabeth Stern, and terminated Mary Beth Whitehead’s parental rights, although the judge permitted Mary Beth limited visitation rights pending her direct appeal to the New Jersey Supreme Court
The New Jersey Supreme Court affirmed in part, reversed in part, and remanded the case to the trial court for further proceedings Specifi-cally, the state supreme court reversed the trial court’s ruling that the surrogacy contract was valid and enforceable The supreme court said the surrogacy contract was unlawful on two different bases: (1) it conflicted with existing New Jersey statutes and (2) it violated public policy
The high court ruled that the surrogacy contract conflicted with state laws prohibiting the use of money in connection with adoptions, state laws requiring proof of parental unfitness
parental rights, and state laws affording a parent the right to revoke a prior consent toADOPTION The contract also violated important principles
of New Jersey public policy Among these principles were the preference for retaining children with their natural parents; the equal status of mothers and fathers in custody determinations; the right of a parent to be fully informed prior to consenting to the relinquish-ment of a child; and the pre-eminence of the child’s best interests in any custodial placement Once the surrogacy contract was declared illegal and unenforceable, the court said, the issue of custody over a child born pursuant to
an invalid surrogate contract would be decided
by determining the best interests of the child In making this determination, the court said it was required to consider that Mary Beth had acted improvidently in violating the trial court’s order
by removing Melissa to Florida, threatening to kill Melissa, threatening to lodge phony sexual-abuse accusations against William Stern if he failed to drop his lawsuit, and her overall propensity to manipulate the system and use Melissa to achieve her own aims The court also said it had to take into account the testimony of the expert witnesses who testified that stability
in the Whitehead household was at best doubtful, while the Sterns were much more likely to provide Melissa with a strong founda-tion upon which to grow and thrive Accord-ingly, the court ordered that custody of Melissa
be awarded to William and Elizabeth Stern The
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
460 BABY M, IN RE
Trang 4New Jersey Supreme Court also ordered the
trial court, on remand, to award Mary Beth
Whitehead visitation rights as the trial court
deemed appropriate Following remand and
after conducting a further hearing, the trial
court granted Mary Beth Whitehead
unsuper-vised, uninterrupted, liberal visitation with
Melissa
Baby M was the first case decided by a state
court of final jurisdiction in which the
lawful-ness of a surrogacy contract was addressed
States responded to the Baby M decision by
passing a flurry of legislation, which fell into
four classes
The first class of legislation declares all
surrogacy agreements void and/or
unenforce-able in that jurisdiction Such legislation has
been enacted in Arizona, the District of
Columbia, Indiana, Michigan, New York, North
Dakota, and Utah The second class of
legisla-tion prohibits only surrogacy agreements in
which the surrogate is compensated with
something of value over the expenses incurred
as a result of the pregnancy Such legislation has
been adopted in Kentucky, Louisiana,
Mary-land, Nebraska, and Washington A third class
of legislation addresses one particular aspect of
surrogacy contracts For example, Alabama,
Iowa, and West Virginia have exempted
surro-gacy agreements from statutory provisions
making it a crime to sell babies
The fourth class of legislation provides for
the enforceability of surrogacy contracts but
at the same time establishes significant
safe-guards for parties desiring to enter such
con-tracts For example, Illinois, Florida, Nevada,
New Hampshire, and Virginia make surrogacy
contracts enforceable so long as the parties to
the contract (1) provide proof that the intended
parents are medically unable to conceive or bear
their own children; (2) obtain judicial
preauthor-ization to enter the agreement; (3) participate in
complete medical and psychological
examina-tions; and (4) sign anINFORMED CONSENTnotice
acknowledging that they have entered the
contract after having been apprised of all the
risks in doing so
In states that have not addressed the subject
by statute, issues regarding the lawfulness and
enforceability surrogacy contracts are resolved
by courts in a manner similar to how the Baby
M case was resolved, that is, by determining the
best interests of the child and weighing any
competing public policy concerns However, disputes over the lawfulness and enforceability
of surrogacy contracts would only come before the courts in these states if a dispute arose between the parties to the contract According
to some figures, as many as 1,000 babies are born each year to surrogate mothers without any judicial interference or oversight
FURTHER READINGS Boyer, Paul S 2001 Oxford Companion to United States History New York: Oxford Univ Press.
NBC January 25, 2002 Today Show Transcripts.
Richardson, Herbert, ed 1987 On The Problem of Surrogate Parenthood: Analyzing The Baby M Case Lewiston, NY:
Mellen.
Robbins, Sara 1988 Baby M Case: The Complete Trial Transcripts Superior Court of New Jersey, Chancery Division, Family Part, Bergen County: Transcript of Proceedings Buffalo, NY: Hein.
CROSS REFERENCES Adoption; Artificial Insemination; Custody; Parent and Child; Surrogate Motherhood; Visitation Rights.
BACK PAY AWARD
A legally enforceable decree ordering an employer
to pay to an employee retroactively a designated increase in his or her salary that occurred during
a particular period of employment A decision rendered by a judicial or quasi-judicial body that
an employee has a legal right to collect accrued salary that has not been paid out to him or her
Back pay awards ensue from LITIGATION
involving employment discrimination and issues regarding labor-management relations
Federal CIVIL RIGHTS legislation provides for back pay awards to compensate the victim for economic losses suffered as a result of discrimination
BACK TO WORK AGREEMENT The accord reached between an employer and a union to which his or her employees belong that establishes the terms and conditions governing the return of striking employees to work
Disputes involving back to work agreements are subject to applicable federal and state laws governing labor-management relations
CROSS REFERENCES Labor Union; Strike.
BACK TO WORK AGREEMENT 461
Trang 5BACKDATING Predating a document or instrument prior to the date it was actually drawn The negotiability of an instrument is not affected by the fact that it is backdated
vBACON, SIR FRANCIS
statesman whose philosophical theories and writings influenced the development of scientific and legal thought in Great Britain and the United States
Bacon was born in 1561, the second son of Sir Nicholas Bacon, the lord keeper of the great seal, and Lady Ann, whose brother-in-law was Baron Burghley (William Cecil), the first minister to Queen Elizabeth I Bacon, like his father, was educated at Trinity College, Cam-bridge, where he enrolled at the age of twelve In
1576 he was admitted to Gray’s Inn, one of the
institutions established forLEGAL EDUCATION He also spent time in France as a member of the English ambassador’s staff, before his father’s sudden death required him to return to England and resume his legal education so that he could support his family After completing his studies, Bacon became a barrister in 1582 and then attained the posts of reader (lecturer at the Inn) and bencher (senior member of the Inn)
In 1584, at the age of twenty-three, Bacon was elected to the House of Commons, representing Taunton, Liverpool, the county of Middlesex, Southampton, Ipswich, and the University of Cambridge In 1594 he argued his first major case, Chudleigh’s Case (1 Co Rep
1136, 76 Eng Rep 261 [K.B 1594]), which involved the interpretation of complex inheri-tance statutes He also began writing about
science and philosophy and started work on his first major volume, Temporis Partus Maximus (The greatest part of time), though the book, along with many of his earliest works, was never published and so disappeared
Through his friendship with Robert Dever-eux, the Earl of Essex, Bacon became acquainted with Queen Elizabeth I and he eventually became her counsel around 1600 As counsel, Bacon later took part in the prosecution of Essex, from whom he had become estranged,
knighted in 1603 In 1605 he published his first book, The Advancement of Learning, a collection
of essays on philosophy that he dedicated to King James I Later the same year, he married Alice Barnham, the daughter of a wealthy London politician
Bacon continued to curry the king’s favor by assisting James in his plans to unite Scotland with England, and was named to the post of
write, publishing in 1609 The Wisdom of the Ancients, in which he analyzed the meaning of ancient myths Seeking promotion to attorney general, Bacon advised the king concerning affairs of state and the relationship between the Crown and Parliament He successfully engi-neered the ouster of the chief justice of the
COMMON PLEAS,SIR EDWARD COKE, a longtime rival who had earlier occupied SOLICITOR and ATTOR-NEYgeneral posts that Bacon had sought Bacon finally became attorney general in 1613, which enabled him to continue his feud with Coke He eventually prosecuted Coke for his role in the case of Edmond Peacham, a clergyman charged with treason for advocating rebellion against
OPPRESSIONin an unpublishedTREATISE, leading to Coke’s dismissal in 1616 Bacon continued his
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1626, Died; James I died same year
1620 Novum Organum published
1617 Appointed lord keeper
of the Great Seal
1618–21 Served as lord chancellor of England
1603 Elizabeth I died;
James I ascended throne
1600 Became counsel to Elizabeth I
1613 Became attorney general
1607 Appointed solicitor general by James I
1558 Elizabeth I
became queen
1561 Born, England
1573 Enrolled in Trinity College, Cambridge
1584 Elected
to House of Commons
1575
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
462 BACKDATING
Trang 6service to the king and was appointed lord
keeper of the great seal in 1617 A year later, he
became lord chancellor of England, a post he
held until 1621
Bacon, a man of great intellect and energy,
was often torn between his ambitions for higher
office and his keen interest in science and
philosophy Though he was primarily concerned
with his service to the Crown during most of his
adult life, he did devote time to the study of
philosophy He was an early proponent of
inductive reasoning, the theory that by analyzing
observed facts, one can establish general laws or
principles about how the world works This
theory is the opposite of deductive reasoning,
which holds that one can draw specific
conclu-sions by reasoning from more general premises
Bacon believed inductive reasoning to be more
useful because it permitted the development of
new theories that could be more generally and
widely applied to a variety of situations The legal
systems of many countries, including the United
States, were eventually grounded on the
applica-tion of general laws derived from specific fact
situations to govern conduct
Bacon was likewise a strong believer in
empiricism, the belief that experience is the
most important source of knowledge According
to Bacon, scientists should try to learn about the
world by using information gathered through the
senses rather than by using reason or rules set
forth by religious or political authority
Empiri-cism, like inductive reasoning, also influenced
the development of later legal philosophies, in
this case theories that viewed the law and justice
as emerging from social life and experience
Bacon was a prolific writer throughout his
life, authoring a number of works expounding
his theories The Novum Organum, his most well
known and widely read philosophical work, was
published in 1620 The Instauratio Magna (Great
instauration, from the Latin word instaurare, “to
renew or begin afresh”) was a comprehensive
plan in which Bacon attempted to reorganize and
redefine the sciences; it also contained his views
concerning logic and scientific experimentation
In his philosophical writings, Bacon argued that
the mind should be purged of what he termed
idols, or tendencies to err These idols, he
maintained, arose from human nature,
individu-al experience, and language In addition, Bacon
kept an extensive diary, which was discovered
after his death The notebook, known as the Commentarius Solutus (Loose commentary), contained his notes about, among other things, his debts, his garden, and his health
Later in his life, Bacon began to fall out of favor with the Crown In 1618 the king criticized him for interfering in the MARRIAGE of Coke’s daughter In 1621 Bacon was charged with accepting a bribe concerning a grievance com-mittee over which he had presided Bacon admitted in a full confession that he had received gifts, but denied that they had influenced his judgment Though he begged for mercy, Bacon found the king unsympathetic to his case and was forced to resign his office Bacon was sentenced to
a stiff fine (which was later suspended), impris-onment in the Tower of London (which actually lasted only four days), exclusion from holding any state office, and prohibition from coming within the vicinity of the Court of King’s Bench
Following his ouster from the court, Bacon returned to his large estate at Gorhambury, in rural England, to devote all of his energies to research and writing He prepared digests of the laws and wrote a history of Great Britain and its monarchs He planned to write six separate natural histories, but only two were completed:
Historia Ventorum (History of the winds), which was published in 1622, and Historia Vitae et Mortis (History of life and death), which appeared the
Sir Francis Bacon.
LIBRARY OF CONGRESS.
AWARE OF HARD CONSTRUCTIONS AND STRAINED
THERE IS NO WORSE TORTURE THAN THE
—S IR F RANCIS B ACON
BACON, SIR FRANCIS 463
Trang 7following year He also wrote the History of Henry VII, published in 1622 In 1621 he enlarged his volume of Essays, which he had first published in
1597, and in 1627 he published The New Atlantis
He also corresponded with Italian philosophers and sent his work to them Over the years, some writers have suggested that Bacon may have been the true author of William Shakespeare’s plays, but because no concrete proof has been offered, the theory has been discounted by most scholars
Sometime around 1623, Bacon, in ill health, was finally granted an audience with the king, but
he was not granted aPARDONfor his offenses In London, on April 9, 1626, he died of bronchitis
he contracted while conducting experiments on the effects of refrigeration on poultry
FURTHER READINGS Bowen, Catherine D 1963 Francis Bacon: The Temper of a Man Boston: Little, Brown.
Hogan, John C., and Mortimer D Schwartz 1985 “A Translation of Bacon ’s Maxims of the Common Law.”
Law Library Journal 77 (fall): 707–18.
Whitney, Charles 1986 Francis Bacon and Modernity New Haven, Conn.: Yale Univ Press.
Zagorin, Perez 1998 Francis Bacon Princeton, N.J.:
Princeton Univ Press.
CROSS REFERENCES Coke, Sir Edward; Inns of Court.
BAD FAITH The fraudulent deception of another person; the intentional or malicious refusal to perform some duty or contractual obligation
Bad faith is not the same as prior judgment
about one’s own rights and duties, but when the rights of someone else are intentionally or maliciously infringed upon, such conduct demonstrates bad faith
The existence of bad faith can minimize or nullify any claims that a person alleges in a lawsuit PUNITIVE DAMAGES, attorney’s fees, or both, may be awarded to a party who must defend himself or herself in an action brought
in bad faith
Bad faith is a term commonly used in the law of contracts and other commercial dealings, such as COMMERCIAL PAPER, and in SECURED
the observance of reasonable standards of fair dealings in trade that is required of every merchant A government official who selectively enforces a nondiscriminatory law against the members of a particular group or race, thereby violating theCIVIL RIGHTSof those individuals, is acting in bad faith
George Edmund Badger was a lawyer, judge, and politician, and the subject of a U.S Supreme Court confirmation battle in 1853 The only son of a lawyer who died prematurely and a daughter of a Revolutionary War leader, Badger was born on April 17, 1795,
in New Bern, North Carolina He was first educated at a local academy and then attended Yale College Because of poverty, he was forced
to leave the college after only two years He then returned home to North Carolina to study law
In 1814 he served for a short time as a major in
aMILITIAcalled out to repel a threatened British invasion A year later, he was admitted to the North Carolina bar He quickly built a reputa-tion as a brilliant and persuasive trial and appellate lawyer In 1820, after four years of representing New Bern in the state house of commons, he was elected a judge of the
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1799 Badger's father, Thomas Badger, died
1795 Born, New Bern, North Carolina
1816 Elected to N.C.
House of Commons
1815 Admitted to North Carolina bar
1820–25 Served as judge of N.C.
Superior Court
1841 Appointed secretary of the Navy
1853 Nomination to U.S.
Supreme Court defeated 1847–55
Served in U.S.
Senate
1861–65 Civil War
1866 Died, Raleigh, N.C.
1800
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
464 BAD FAITH
Trang 8superior court, where he served five years before
resigning to practice law in Raleigh
Initially a strong supporter of ANDREW
mid-1830s and was appointed secretary of the Navy in
1841 by PresidentWILLIAM H.HARRISON He served
for less than a year in this position and thus had
little opportunity to have a lasting effect
However, during his tenure, he did recommend
a home squadron to patrol the Caribbean and
the Gulf of Mexico He also authorized the
construction of two steam vessels
In 1846 Badger was elected to the U.S
Senate As a senator, he strongly opposed the
policies of the Polk administration He also
proposed reform of the Supreme Court’s docket
and advocated salary increases for the justices In
January 1853 President MILLARD FILLMORE, who
had lost the 1852 election to FRANKLIN PIERCE,
nominated Badger for a vacancy on the Court
Badger’s nomination was met with widespread
criticism from the Democratic papers of the
South Senators from Alabama, Louisiana, and
Mississippi opposed his nomination because he
resided outside the Fifth Circuit, where the
vacancy on the Court arose Even the Whig
press, though it supported the proposed
appoint-ment, stated that“as a statesman, [Badger] is of
no account, and as a politician detestable.”
On previous occasions, the Senate had
usually granted quick confirmation to a senator
nominated for the Court, with little debate But
it postponed consideration of Badger’s
nomina-tion until March 1853, so that Pierce could fill
the vacancy with his own nominee—effectively
defeating Badger’s nomination The same tactic
would also be used to defeat later Supreme
Court nominees
Badger served in the Senate until 1855 After
his retirement, he continued to practice law
and took an active role in politics, helping to
organize the Constitutional Union party in
1861 This party was made up of conservative Whigs who had been alienated by the emer-gence of ABRAHAM LINCOLN as the leader of the Republican party during the presidential election of 1860 In its platform, the Constitu-tional Union party took no stand on the issue
of the Union Badger was elected as a Union candidate, but a convention was never held
Though he was widely known as a national-ist, when the Civil War broke out Badger was elected to the North CarolinaSECESSION conven-tion At first he argued against secession, contending that it was unconstitutional Instead
he offered aDECLARATION OF INDEPENDENCE, which was rejected As a result, he reluctantly voted for secession
Badger continued to practice law in North Carolina until his death in 1866
FURTHER READINGS Congressional Quarterly 2004 Guide to the U.S Supreme Court 4th ed Washington, D.C.: Congressional Quarterly.
“George E Badger (1795–1866) 2000 Department of the Navy—Naval Historical Center Available online at http://www.history.navy.mil/photos/pers-us/uspers-b/
g-badger.htm; website home page: http://www.history.
navy.mil (accessed August 28, 2009).
Maisel, L Sandy, ed 1991 Political Parties and Elections in the United States: An Encyclopedia New York: Garland.
CROSS REFERENCES Fillmore, Millard; Slavery.
vBAER, GEORGE FREDERICK George Frederick Baer was born September 26,
1842, near Lavansville, Pennsylvania Baer was educated at Franklin and Marshall College, where
he received an honorary master of arts degree in
1875 and a doctor of laws degree in 1886
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1842 Born near Lavansville, Pa.
1862 Fought in Civil War battles at Antietam and Chancellorsville
1861–65 U.S Civil War
1864 Admitted to Pennsylvania bar
1870 Served as counselor for Philadelphia and Reading R.R.
1901 Served as president of Philadelphia and Reading R.R.
1902 United Mine Workers went on strike
1914–18 World War I
1914 Died, Philadelphia, Pa.
1850
BAER, GEORGE FREDERICK 465
Trang 9During the Civil War, Baer fought on the side of the Union at Bull Run, Antietam, Chancellorsville, and Fredericksburg
He was admitted to the bar in 1864, moved to Reading, Pennsylvania, in 1868, and in 1870 performed the duties of counselor for the Philadelphia and Reading Railroad Company
He became a director of the railroad, acted as legal advisor to magnate J P Morgan, and was instrumental in the restructuring of the railroad in
1893 In 1901 he was president of the Philadelphia and Reading Railway Company, the Philadelphia and Reading Coal & Iron Company, and the Central Railroad Company of New Jersey
When the United Mine Workers went on strike in Pennsylvania in 1902, Baer gained notoriety for his lack of sympathy for the plight
of the miners
Baer died April 26, 1914, in Philadelphia, Pennsylvania
BAIL The system that governs the status of individuals charged with committing crimes, from the time of their arrest to the time of their trial, and pending appeal, with the major purpose of ensuring their presence at trial
In general, an individual accused of a crime must be held in the custody of the court until his
or her guilt or innocence is determined However, the court has the option of releasing the individual before that determination is made, and this option is called bail Bail is set by the judge during the defendant’s first appearance For many misdemeanors, bail need not be set For example, the DEFENDANTmay be released on the issuance of a citation such as a ticket for a driving violation or when booked for a minor
MISDEMEAN-OR at a police station or jail But for major misdemeanors and felonies, the defendant must appear before a judge before bail is determined
The courts have several methods available for releasing defendants on bail The judge deter-mines which of these methods is used One alternative is for the defendant to post aBAIL BOND
professional surety holder, the accused, or the family and friends of the accused Signing the bail bond is a promise that the defendant will appear
in the specified criminal proceeding The defen-dant’s failure to appear will cause the signers of the bond to pay to the court the amount
designated The amount of bail is generally an amount determined in light of the seriousness of the alleged offense
A defendant can also be released upon her
or his own RECOGNIZANCE, which is the defen-dant’s written, uninsured promise to return for trial Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community Willful violation of the terms of a personal recogni-zance constitutes a crime
Other conditions may also be set regarding the release of the defendant The Bail Reform Act of
1984 (18 U.S.C.A §§ 3141–3150) provided for many additional conditions that do not rely upon finances and that reflected current trends to move away from financial requirements for freedom These conditions came about, in part, owing to concerns regarding the discriminatory nature of bail toward the poor The Bail Reform Act allows for conditional releases dependent upon such circumstances as maintaining employment, meet-ing curfews, and receivmeet-ing medical or psychiatric treatment
Civil Actions
A defendant in aCIVIL ACTIONcan be arrested to ensure that he or she will appear in court to respond to the plaintiff’s claims Civil arrest prevents a defendant from leaving the jurisdic-tion to evade theLITIGATION, and from attempt-ing to conceal or dispose of assets in order to keep the PLAINTIFF from collecting on the judgment if the plaintiff prevails Because civil arrest is a drastic remedy, state laws must be consulted to determine when it may be used The purpose of bail in a civil action is to ensure the presence of the defendant at trial and to guarantee the payment of a debt or the fulfillment of some civil duty, as ordered by the court
The court sets the amount of bail, which is generally based on the probable amount of damage against the defendant In some instances, if informed of changed circum-stances, the court might increase or reduce bail Cash, as opposed to a bail bond, may be deposited with the court only when authorized
by statute The purpose of the arrest and the statutory provisions determine whether this deposit may be used to pay the judgment awarded to the plaintiff
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
466 BAIL
Trang 10Criminal Prosecutions
The objective of bail in criminal actions is to
prevent the imprisonment of the accused prior to
trial while ensuring her or his appearance at trial
Constitutional and statutory rights to bail prior to
conviction exist for most offenses, but state
constitutional provisions and statutes must be
consulted to determine the offenses to which bail
applies The Bail Reform Act of 1984 governs bail
in federal offenses It provides the federal
of the defendant If the charge is a noncapital
offense (an offense not punishable by death), the
defendant may be released on her or his own
recognizance If there is a reasonable likelihood that the defendant will not return for trial, the judge may impose bail The judge may also release the defendant into the custody of a designated person or organization for supervision Restrict-ing the residence, extent of travel, and personal associations of the accused are other options
Discretion of the Court
A court exercises its discretion with respect to the allowance of bail In reaching its decision, it evaluates the circumstances of the particular case, including the existence of doubt as to the accused person’s appearance at trial Unreasonable
Jail Inmate Population in the U.S at Midyear, 2000 to 2008
Number in thousands
2000
2001
92% b
90%
93%
94%
94%
95%
96.3%
94.8%
94.8%
SOURCE: U.S Bureau of Justice Statistics, Jail Inmates at Midyear 2008, Statistical Tables, March 2009.
0 100 200 300 400 500 600 700 800 900
2002
2003
2004
2005
2006
2007
2008
621.1 677.8
631.2 699.3
665.5 713.9
691.3 736.5
714.0 755.6
747.5 786.9
765.8 795.0
780.2 810.5
785.6 828.4
a Rated capacity is the number of beds or inmates assigned to facilities within each jurisdiction.
Rated capacity a
Number of inmates
b Percentage represents the number of inmates confined divided by the rated capacity and multiplied by 100.
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING.
BAIL 467