California, Maine, New York, Vermont, Virginia, Washing-ton, and Wyoming do not require law degrees at all, but alternatively require several years of legal study—also known as reading l
Trang 1It may cover a different range of legal topics than does the Multistate Bar Examination, although some topics are duplicated by the two tests
In addition, as of 2007 all states except Maryland, Washington, and Wisconsin require
a passing score on the Multistate PROFESSIONAL RESPONSIBILITYExamination (MPRE), a standard-ized multiple-choice test of legal and profes-sional ethics Bar applicants normally take this two-hour test several weeks before or after they take the bar examination The Multistate Professional Responsibility Examination tests the applicants’ knowledge of the American Bar Association’s Model Rules of Professional Conduct Topics include attorney-client confi-dentiality, conflicts of interest, and attorney advertising
In 2008 a total of 34 jurisdictions incorpo-rated the Multistate Performance Test (MPT) as part of their bar examinations This test was designed to assess an examinee’s ability to complete fundamental legal tasks that most beginning lawyers face in real life practice
The MPT assesses an examinee’s ability to sort factual materials, separating relevant from irrelevant facts; analyze statutory, case, and administrative materials to extract the relevant principles of law; apply the relevant law to the presented facts in a manner that would resolve a client’s legal problem; address all ethical con-cerns; and communicate the legal issue and solution effectively in writing The MPT is a timed examination, and each jurisdiction deter-mines the relative weight to give this part of the examination along with the other scores
Finally, several states include a Multistate Essay Examination (MEE) as part of their overall bar examinations The MEE consists of 30-minute essay questions on a more expansive array of legal topics than the standard six topics covered in the 200-question multistate exami-nation These additional areas of law include business associations, evidence, FAMILY LAW, federal CIVIL PROCEDURE, trusts and estates, and the UNIFORM COMMERCIAL CODE (UCC) Fewer than 20 states were testing the MEE in 2007
A steady rise in the number of persons taking bar examinations keeps competition tight According to the National Conference of Bar Examiners, 80,319 applicants took a bar examination in 2008; 70,172 of them were first-time takers Overall, 71 percent, or 56,915
examinees, passed However, among first-time takers from American Bar Association (ABA)-approved law schools, 85 percent passed, whereas repeat-takers had only a 43 percent pass rate The examination can be taken more than once In rare cases, an attorney who has been disbarred or suspended can take a special bar examination for reinstatement In 2008, only 20 disbarred or suspended attorneys across the United States took a reinstatement exam (seven, or 35 percent, passed)
In a few states, an attorney may be licensed
to practice law without taking the state’s bar examination Wisconsin permits graduates of accredited Wisconsin law schools to become licensed attorneys without taking any bar examination Other states offer reciprocity, by accepting Multistate Bar Examination scores attained in other jurisdictions or by waiving the bar examination requirement for experienced attorneys licensed in other jurisdictions Jurisdictions also differ in their approach to legal education requirements Most states re-quire bar applicants to graduate from law schools accredited by the American Bar Associ-ation (ABA) Some states, such as California and Georgia, will admit bar candidates who received law degrees from unaccredited law schools under certain circumstances California, Maine, New York, Vermont, Virginia, Washing-ton, and Wyoming do not require law degrees at all, but alternatively require several years of legal study—also known as reading law—with a licensed attorney According to the NCBE, in
2008, 56,357 persons were admitted to bars by examination; 7,888 by court motion, and 468 by diploma privilege Whatever the legal education requirements, all members of the bar must pass the bar examination
FURTHER READINGS American Bar Association/Bureau of National Affairs 1995 ABA/BNA Lawyers’ Manual on Professional Conduct Bosse, Diane F., and Lawrence M Grosberg 2003 “The Bar Exam: Should the Test Continue in Its Current Form or Are Alternatives Needed? ” New York Law Journal Magazine 2 (April): 12.
Curcio, Andrea A 2002 “A Better Bar: Why and How the Existing Bar Exam Should Change.” Nebraska Law Review 81 (winter): 363–423.
Curriden, Mark 1995 “Lawyers Who Skip Law School.” American Bar Association Journal 81 (February) Darrow-Kleinhaus, Suzanne 2009 The Bar Exam in a Nutshell 2d ed St Paul, Minn.: West Group Garth, Bryant G 1983 “Rethinking the Legal Profession’s Approach to Collective Self-Improvement: Competence
518 BAR EXAMINATION
Trang 2and the Consumer Perspective ” Wisconsin Law Review
1983.
Getz, Malcolm, John Siegfried, and Terry Calvani 1981.
“Competition at the Bar: The Correlation between the
Bar Examination Pass Rate and the Profitability of
Practice ” Virginia Law Review 67.
Statistics.” The Bar Examiner, May Text available
online at http://www.ncbex.org/fileadmin/mediafiles/
downloads/Bar_Admissions/2008_Stats.pdf; website home
page: http://www.ncbex.org/bar-admissions/stats/ (accessed
August 5, 2009).
Pobjecky, Thomas A “The Florida Board of Bar Examiners:
The Constitutional Safeguard between Attorney
Aspir-ants and the Public ” Nova Law Review 18.
Rogers, W Sherman 1989 “Title VII Preemption of State
Bar Examinations: Applicability of Title VII to State
Occupational Licensing Tests ” Howard Law Journal 32.
“Society of American Law Teachers Statement on the Bar
Exam, July 2002 ” 2002 Journal of Legal Education 52
(September): 446 –52.
vBARBOUR, PHILIP PENDLETON
Philip Pendleton Barbour, an ASSOCIATE JUSTICE
of the U.S Supreme Court, was a strong
advocate of states’ rights and the STRICT
CONSTRUCTIONof the Constitution
The son of a wealthy planter from one of
Virginia’s oldest families, Barbour was born
May 25, 1783, in Orange County, Virginia He
was educated locally and excelled in languages
and classical literature At seventeen, he became
an apprentice to an Orange County lawyer
After less than a year clerking and studying law,
Barbour left Virginia for Kentucky, where he
practiced law for a short time In 1801 he
returned to Virginia to attend the College of
William and Mary, in Williamsburg, where he
briefly studied law A year later he established a
law practice in Orange County, and quickly
gained a reputation for his outstanding
oratori-cal abilities in the courtroom In 1804 he
married Frances Johnson, the daughter of a local planter, with whom he had seven children
Barbour’s family was both socially promi-nent and politically active His father, Thomas Barbour, was a member of the Virginia House
of Burgesses for many years, and his older brother became a Virginia governor, U.S sena-tor, and secretary of war under President JOHN QUINCY ADAMS, whose administration Barbour would eventually oppose Encouraged by his father’s and brother’s successes, in 1812 Bar-bour ran for and won a seat in the Virginia House of Delegates Two years later he won a seat in the U.S Congress and aligned himself with a group of older Republicans who favored strict construction of the Constitution and a limited federal government Barbour served as
Philip Barbour GETTY IMAGES
◆
◆
◆
◆
❖
❖
1775–83
American Revolution
1783 Born,
Orange County,
Va.
1789 U.S.
Constitution ratified
1800 Began apprenticeship with Orange
Co lawyer
1812 Elected to Virginia House of Representatives
1827–30 Served in U.S House of Representatives a second time
1836 Appointed associate justice
of the U.S.
Supreme Court
1830 Appointed federal judge for eastern Virginia
1841 Died, Richmond, Va.
1821–23 Served as speaker of the House
1825 Appointed state judge
in General Court for the Eastern District of Virginia
1814–24 Served
in U.S House of Representatives
BARBOUR, PHILIP PENDLETON 519
Trang 3Speaker of the House from 1821 until 1823, when he was defeated by HENRY CLAY In 1824 Barbour chose not to run for reelection to Congress, and returned to Virginia to resume his law practice
During his career as a practicing ATTORNEY, Barbour was involved in a number of important cases He argued the state’s position before the U.S Supreme Court in Cohen v Virginia, 19 U.S 264, 6 Wheat 264, 5 L Ed 257 (1821), a landmark suit that helped to clarify the role of the federal courts in reviewing state court decisions In Cohen the Court held that the federal judiciary could review cases arising in the state courts that involved constitutional issues Though Barbour lost the case, his vigorous representation helped to further estab-lish his reputation as a strong defender of the states against what he often saw as the growing encroachment of the federal government
In 1825, after considering and then declin-ing an offer from THOMAS JEFFERSON to join the law faculty at the University of Virginia, Bar-bour was appointed to the General Court for the Eastern District of Virginia, a state trial court, where he served for almost two years In
1827, at the urging of his constituents, Barbour ran unopposed for Congress, though he lost the Speaker’s race to fellow Virginian Andrew Stevenson During his second stint in Congress, Barbour was a vocal opponent of President Adams, even though Barbour’s brother James Barbour was a member of the Adams cabinet
Barbour objected to the administration’s spend-ing policies and to the imposition of aTARIFFin
1828 He also continued his relentless advocacy
of states’ rights and the narrow construction of the Constitution, introducing an unsuccessful bill in 1829 requiring that five of the seven justices on the U.S Supreme Court concur in any decision involving a constitutional question
In the late 1820s Barbour became a strong supporter of ANDREW JACKSON, who defeated the incumbent Adams in 1828 Barbour was considered for a position in the Jackson cabinet but was not appointed In 1829 Barbour was chosen president of the Virginia Constitutional Convention, replacing the ailing JAMES MONROE During the sometimes tumultuous convention, Barbour argued forAPPORTIONMENTof represen-tation based on both white population and property ownership, and argued that the latter should be a qualification for the right to vote Barbour also sided with the conservative
slaveholders in the eastern part of the state against citizens in the western part of the state who, opposed to SLAVERY, eventually formed a separate state, West Virginia
Barbour’s unwavering support of Jackson and his policies earned him an appointment as a federal judge for eastern Virginia in 1830 In
1832 he was briefly a candidate forVICE PRESIDENT
against MARTIN VAN BUREN, even though Van Buren was Jackson’s choice in his reelection bid Barbour soon withdrew his candidacy to preserve party unity, and threw his support to Van Buren
As early as 1831 Barbour was rumored to be next in line for a seat on the U.S Supreme Court as soon as Jackson, now in his second term, had an opportunity to make an appoint-ment Nationalists, who disagreed with Bar-bour’s states’ rights and strict constructionist views, opposed Barbour as a possible candidate for the Court In 1836 Barbour was nominated
to succeed retiring justice Gabriel Duval, at the same time thatROGER B.TANEYwas nominated as chief justice and confirmed to succeed JOHN MARSHALL, also retiring As expected, Barbour’s nomination drew criticism, but he was never-theless confirmed by a vote of 30–11
Barbour wrote only a dozen opinions for the Court His most important majority opinion was in City of New York v Miln, 36 U.S 102, 11 Pet 102, 9 L Ed 648 (1837) At issue in Miln was a New York state law requiring captains of vessels arriving at ports to provide harbor authorities with the names, ages, birthplaces, and occupations of arriving passengers The Court considered whether the law was an un-constitutional invasion of the exclusive federal right to regulate interstate and international trade The Court ruled that the law was a legitimate exercise of the state’s “police power”
to protect the health and welfare of its citizens The decision provided the perfect opportunity for Barbour to expound upon his states’ rights views He wrote that the state not only had the right to impose such laws but also the“solemn duty to advance the safety, happiness and prosperity of its people, and to provide for the
GENERAL WELFARE, by any and every act of legislation, which it may deem to be conducive
to these ends.” The decision marked a signifi-cant departure from the philosophy of the previous Court, headed by Marshall, which had emphasized the importance of federal authority
in matters that even indirectly involved inter-state and international commerce Though
WHAT IS SETTLED BY
THECONSTITUTION
CANNOT BE ALTERED
BY LAW
—P HILIP B ARBOUR
520 BARBOUR, PHILIP PENDLETON
Trang 4influential, Miln was criticized and limited by
subsequent decisions of the Court
In February 1841, at age 58, Barbour died
suddenly of a heart attack He thus served only
five years on the Court, completing one of the
shortest terms in its history
FURTHER READINGS
Congressional Quarterly 2004 Guide to the U.S Supreme
Court 4th ed Washington, D.C.: Congressional Quarterly.
Elliott, Stephen P., ed 1986 A Reference Guide to the United
States Supreme Court New York: Facts on File.
Federal Judicial Center Available online at http://www.fjc.
gov (accessed August 28, 2009).
BARGAIN
A reciprocal understanding, contract, or
agree-ment of any sort usually pertaining to the loan,
sale, or exchange of property between two parties,
one of whom wants to dispose of an item that the
other wants to obtain To work out the terms of an
agreement; to negotiate in good faith for the
purpose of entering into an agreement
A union engages inCOLLECTIVE BARGAININGon
proposed contract terms
BARGAINING AGENT
A union that possesses the sole authority to act on
behalf of all the employees of a particular type in a
company
A bargaining agent is certified by theNATIONAL
LABOR RELATIONS BOARD (NLRB) as the exclusive
representative of a certain type of employee The
International Garment Workers Union, for
ex-ample, might act as the bargaining agent for all
seamstresses employed at a particular dress factory
CROSS REFERENCES
Labor Law; Labor Union.
vBARLOW, FRANCIS CHANNING Francis Channing Barlow achieved prominence
as a lawyer and a soldier Barlow was born October
19, 1834, in Brooklyn, New York He graduated from Harvard in 1855, and was admitted to the New York bar in 1858 From 1859 to 1861, and also in 1866, Barlow practiced law
At the onset of the Civil War in 1861, Barlow joined the Union Army and fought at various battles, including Fair Oaks, Antietam, Chancellorsville, and Spottsylvania He was wounded at Gettysburg in 1863 but returned
to service, and by the end of the war he had earned the rank of major general
After the Civil War Barlow becameSECRETARY
OF STATEof New York, serving from 1865 to 1867, and 1869 to 1870 In 1869, he was U.S marshal for the southern district of New York He per-formed the duties of New York attorney general from 1871 to 1873, and was instrumental in the early proceedings concerning the prosecution of the Tweed Ring, a group of corrupt New York politicians
Barlow returned to his law practice in 1874
In 1876 he participated in the investigation of the controversial Hayes-Tilden presidential election results He died January 11, 1896, in New York City
CROSS REFERENCE Tammany Hall.
vBARR, WILLIAM PELHAM William Pelham Barr served as attorney general
of the United States from 1991 to 1993 under PresidentGEORGE H.W.BUSH
The son of Donald Barr and Mary Ahern Barr, WILLIAM BARR was born May 23, 1950, in
◆
◆
❖
1834 Born,
Brooklyn, N.Y.
1861–65 U.S.
Civil War
1871 Began “Tweed Ring” prosecution;
helped found American Bar Association 1861–65 Fought in Union Army;
attained rank of major general
1855 Graduated from Harvard University
1871–73 Served as attorney general of New York State
1876 Participated in Hayes-Tilden presidential election investigation
1896 Died, New York City
◆
1858 Admitted to New York bar
BARR, WILLIAM PELHAM 521
Trang 5New York City, and was schooled there He completed an undergraduate degree at New York’s Columbia University in 1971 and began
a two-year master’s program in Chinese studies
Armed with his graduate degree, he moved to Washington, D.C., in 1973 and went to work as
a staff officer with the CENTRAL INTELLIGENCE AGENCY(CIA) He was accompanied by his wife, Christine Moynihan, to whom he was married
on June 23, 1973
While working at the CIA, Barr enrolled in the night program at George Washington University Law School He earned his law degree in 1977, graduating second in his class
After law school, he clerked for one year with the presiding judge of the District of Columbia Circuit Court He was admitted to the Virginia bar in 1977 and to the District of Columbia bar
in 1978 Also in 1978, Barr accepted an associate position at the Washington, D.C., law firm of Shaw, Pittman, Potts, and Trowbridge There he concentrated on civil LITIGATION and federal administrative practice
In 1982 Barr was named to President Ronald Reagan’s Domestic Policy Council During his two years of service, he became well known and respected by the administration and leaders in the REPUBLICAN PARTY Barr returned
to Shaw, Pittman in 1984, to resume his legal career He was made a partner of the firm
in 1985
After several years in private practice, Barr reentered public service in 1989, when he was named assistant attorney general by the George
H W Bush administration He took over the Justice Department’s Office of Legal Counsel, where his role was to advise the White House and the attorney general and other administra-tion officials Historically, the Office of Legal Counsel has been called upon to reassure presidents that their intended actions are within the law
As assistant attorney general Barr authored two controversial advisory opinions that allowed President Bush to expand his war on drugs and to apprehend Panamanian drug lord Manuel Noriega One opinion (13 U.S Op Off Legal Counsel 387) held that U.S military forces could be assigned to law enforcement opera-tions abroad, and the other (13 U.S Op Off Legal Counsel 195) that the president had authority to order the FEDERAL BUREAU OF INVESTIGATION (FBI) to arrest fugitives overseas without consent of the local government
William Pelham
Barr.
AP IMAGES
William Pelham Barr 1950–
❖
1950 Born,
New York City
1971 Earned undergraduate degree at Columbia University
1950–53
Korean War
1961–73 Vietnam War
◆
1973 Graduated with M.A in Chinese from Columbia; joined CIA 1977 Earned J.D.
from George Washington University
1982–84 Served
as counsel for President Reagan’s Domestic Policy Council
1989 Appointed assistant attorney general by President George H.
W Bush
◆
2001 Advised George
W Bush administration
on terrorism-related legal issues; advocated secret military tribunals for Al Qaeda POWs
2001 September 11 terrorist attacks
2009 Joined Kirkland & Ellis LLP as Of Counsel
1993 Returned to private practice
1991 Nominated and confirmed as U.S
attorney general
◆
1990 Became deputy attorney general
522 BARR, WILLIAM PELHAM
Trang 6Barr was named deputy attorney general in
1990 He became acting attorney general in June
1991 when RICHARD THORNBURGH resigned to
enter the race for a U.S Senate seat in
Pennsylvania Barr was nominated and
con-firmed as attorney general in the fall of 1991,
becoming, at age forty-one, the youngest person
to hold that post since Ramsey Clark, who was
appointed in 1967
After years of unpleasant and adversarial
relationships with Attorneys General EDWIN
MEESE III and Thornburgh, Congress welcomed
Barr’s appointment Members of Congress
praised his candor and cooperation, and they
supported his decision to launch internal
investigations into the Justice Department’s
handling of the Bank of Credit and Commerce
International (BCCI) scandal and the Inslaw
computer scandal BCCI was shut down by
bank regulators in 1991 for massive FRAUD,
THEFT, MONEY LAUNDERING, and the financing of
arms deals and terrorist activities Depositors
lost billions when the bank’s assets were seized
Inslaw, Inc., accused the JUSTICE DEPARTMENT of
conspiring to steal its proprietary software after
the company’s government contract had been
revoked
The AMERICAN BAR ASSOCIATION was
encour-aged by Barr’s willingness to reconsider a
Thornburgh decision that prevented local bar
associations from interviewing judicial
nomi-nees, and an editorial in the November 25,
1991, issue of National Law Journal praised the
department planned by the new attorney
general as less political, more open, and more
“inclined toward integrity” than the
depart-ments run by his immediate predecessors in the
RONALD REAGANand George H W Bush
admin-istrations
However, Barr’s honeymoon with the
Dem-ocratic Congress and the nation’s legal press did
not last Barr was soon criticized for his inability
to obtain CIA cooperation in the BCCI and
Banca Nationale del Lavoro (BNL)
investiga-tions and for delays in closing down the BCCI
A CIA investigation revealed that an Atlanta,
Georgia, branch of the BNL had provided
fraudulent loans to Iraq—loans that helped
Saddam Hussein to build his military strength
Barr’s internal investigation of the theft of an
Inslaw-developed computer program by
gov-ernment officials was tagged a whitewash He
angered Japanese officials when he announced a
change in antitrust policy that allowed the Justice Department to bring cases against Japanese cartels that restricted U.S exports
Moreover, Barr fought popular opinion and strong evidence of improprieties by the Justice Department when he continued to support the deportation of John Demjanjuk—wrongly ac-cused of being the infamous Nazi death camp guard who was called Ivan the Terrible
Finally, Barr took the unprecedented step of denying a congressional request for an indepen-dent investigation into the events known as Iraqgate Barr said he and the Justice Depart-ment would conduct their own investigation to determine whether anyone in the Bush admin-istration had committed a crime by giving aid to Saddam Hussein prior to the Iraqi invasion of Kuwait and the resulting Persian Gulf War
Ongoing questions about the administra-tion’s knowledge of, and involvement in, Iraqgate contributed to Bush’s defeat in the presidential election of 1992 and ended Barr’s tenure as the nation’s attorney general
In spite of his bright beginning, Barr was unable to depart significantly from the agendas and operational styles of his predecessors and the presidents they served According to the December 7, 1992 issue of National Law Journal, “Under Presidents Reagan and Bush and their Attorneys General Ed Meese, Dick Thornburgh and WILLIAM P BARR, the nation witnessed the politicization of the JUSTICE DEPARTMENT beyond anything that has gone before”
In 1993 Barr returned to Shaw, Pittman and resumed the PRACTICE OF LAW At the time, he was a member of the American Bar Association, the Virginia State Bar Association, and the District of Columbia Bar Association
Barr later joined Verizon Communications,
a provider of phone services, as head of its legal department Under his leadership, the depart-ment developed a high percentage of minority and women attorneys and employees The legal department of New York-based Verizon Com-munications was named the 2002 Northeast Region Employer of Choice by the Minority Corporate Counsel Association (MCCA)
In 2001, as the competition between local phone companies and other digital subscriber line (DSL) providers grew, Barr instituted a law-suit against DSL provider Covad Communications
IDON’T CARE HOW MUCH POLITICAL PRESSURE IS BROUGHT TO BEAR
JOURNALISTS ARE SAYING IT’S NOT FAST ENOUGH FOR THEM THE STANDARD WILL STAY WHERE IT IS
—W ILLIAM B ARR BARR, WILLIAM PELHAM 523
Trang 7The suit, which claimed that Covad employees had made false reports that Verizon had obs-tructed Covad’s installation services, was dis-missed by a federal district court judge in November 2002
While working for Verizon, Barr lectured to groups such as the Federalist Society and offered advice to the administration of GEORGE W.BUSH
concerning legal measures againstTERRORISM Barr retired from Verizon Communications
in late 2008, after serving as executive VICE PRESIDENT While at Verizon, he led the legal, regu-latory, and government affairs group In early
2009 he joined Kirkland & Ellis LLP in an Of Counsel capacity, in its Washington, D.C., office
FURTHER READINGS Baker, Nancy V 1992 Conflicting Loyalties: Law and Politics
in the Attorney General’s Office, 1789-1990 Lawrence:
Univ Press of Kansas.
Department of Justice 1991 200th Anniversary of the Office
of the Attorney General, 1789-1989 Washington, D.C.:
Department of Justice, Office of Attorney General and Justice Management Division.
Fletcher, Martin 2001 “Terror Leaders Could Die By Firing Squad ” London Times (November 16).
“Legal Job No 1.” 1992 National Law Journal 15 (December 7).
BARRATRY
In criminal law, the frequent incitement of lawsuits and quarrels that is a punishable offense
Barratry is most commonly applied to an
ATTORNEYwho attempts to bring about a lawsuit that will be profitable to her or him Barratry is
an offense both atCOMMON LAWand under some state statutes The broader common-law crime has been limited by certain statutes An attorney who is overly officious in instigating or en-couraging prosecution of groundless LITIGATION
might be guilty of common barratry under
a particular statute The requirement for the crime of barratry is that repeated or persistent acts of litigation are performed by the accused
Barratry is generally a MISDEMEANOR punishable
by fine or imprisonment In the case of an attorney, disbarment is the usual punishment
Because few cases have been prosecuted, barra-try is considered by the legal community at large
to be an archaic crime This is particularly true today due to a highly litigious atmosphere
In maritime law, barratry is the commission
of an act by the master or mariners of a vessel for an unlawful or fraudulent purpose that is
contrary to the duty owed to the owners, by which act the ownersSUSTAINinjury
A form of barratry is misconduct of the master of a ship in taking commodities on board that subject the ship toSEIZUREforSMUGGLING It is essential in barratry that a criminal act or intent exist on the part of the master or mariners which inures to their own benefit and causes injury to the owners of the ship
BARRISTER
In English law, an attorney who has an exclusive right of argument in all the superior courts
A barrister is a counselor who is learned in law and who has been admitted to plead at the bar A barrister drafts the pleadings in all cases, with the exception of the simplest ones Distinguished from an ATTORNEY, which is an English lawyer who conducts matters out of court, a barrister engages in the actual argument
of cases or the conduct of the trial
BARRON V BALTIMORE
In Barron v City of Baltimore, 32 U.S (7 Pet.)
243, 8 L.Ed 672 (U.S 1833), the U.S Supreme Court ruled that theFIFTH AMENDMENTto the U.S Constitution bound only the federal government and was thus inapplicable to actions taken by state and local governments In 1868 the states ratified the FOURTEENTH AMENDMENT in part to nullify the Supreme Court’s holding in Barron v Baltimore However, it was not until the twentieth century when the Supreme Court made most of the federalBILL OF RIGHTSapplicable to the states The case arose when John Barron, owner of the largest and most profitable wharf in the eastern section of Baltimore, Maryland, sued the city for losses his wharf had allegedly suffered as
a result of silting When Barron had originally purchased the wharf, the wharf enjoyed the deepest waters in the area However, in 1815 Baltimore had undertaken a major plan to reno-vate and modernize the city by building em-bankments, grading roads, and paving streets
To facilitate this plan, the city began diverting water streams from a range of hills around the city into the wharf In the seven years leading up
to Barron’s lawsuit, Baltimore experienced a number of violent rainstorms, causing the streams to fill with sand, mud, and earth from the newly graded roads and abutting embank-ments The silt eventually poured into Barron’s
524 BARRATRY
Trang 8wharf, making the water so shallow that it was
no longer accessible by larger ships By 1822, the
year Barron filed suit, the harbor had lost
almost its entire value as a commercial wharf
At trial in the Baltimore County
Court-house, Barron claimed that the city
appropriat-ed his private property for a public use without
providing himJUST COMPENSATION, as he said was
required by the Takings Clause of Fifth
Amendment to the U.S Constitution The trial
court agreed and awarded Barron $4,500 in
damages The city appealed, and a Maryland
appellate court reversed Barron then petitioned
the U.S Supreme Court by WRIT of error and
review was granted Chief JusticeJOHN MARSHALL
delivered the Court’s unanimous opinion
The sole issue before the Court was whether
the Fifth Amendment to the federal Constitution
applied to actions taken by state and local
governmental entities The federal Constitution
“was ordained and established by the people of
the United States for themselves, for their own
government, and not for the government of the
individual states,” Marshall wrote When the
Founding Fathers made an exception to this rule
in particular provisions of the U.S Constitution,
Marshall said, they made clear that those
provisions were in fact applicable to the states
For example, Marshall observed that section 10 of
Article I provides that“No State shall pass
any Bill of Attainder.” Yet none of the first Ten
Amendments to the U.S Constitution makes any
similar reference to STATE ACTION, Marshall
reasoned, evincing the Founding Fathers clear
intent to make the Bill of Rights applicable only
against the federal government
“Each state established a constitution for
itself, and in that constitution, provided such
limitations and restrictions on the powers
of its particular government, as its judgment
dictated,” the chief justice continued If Barron’s
property interests were harmed by the city, then
he was required to rely on state or local law to
vindicate his rights Neither the Fifth
Amend-ment nor any other provision in the Bill of
Rights was applicable to his lawsuit, Marshall
concluded, and U.S Supreme Court lacked
jurisdiction to take any further action
Accord-ingly, Marshall dismissed the suit
Barron v Baltimore signaled a retreat from
Marshall’s earlier opinions that had expanded
the scope and application of the federal
Cons-titution, a change that reflected the growing
states’ rights movement over the issue of
SLAVERY Although Barron v Baltimore was re-affirmed 12 years later in Permoli v New Orleans, 44 U.S (3 How.) 589, 11 L.Ed 739 (1845), the Union’s victory in the Civil War marked the beginning of the end for Barron as a valid and bindingPRECEDENT
In 1868 the states ratified the Fourteenth Amendment, which provides that no state shall
“deprive any person of DUE PROCESS OF LAW [or] EQUAL PROTECTION of the laws.” During the Congressional debates,JOHN BINGHAM, a Republi-can representative from Ohio and the primary architect of the Fourteenth Amendment, argued that enacting the Fourteenth Amendment was necessary to nullify the Supreme Court’s holding
in Barron v Baltimore
Despite Bingham’s stated intentions, the Bill
of Rights was not made applicable to the states through the doctrine of selective incorporation until the twentieth century Under this doctrine, the Supreme Court has ruled that every protec-tion contained in the Bill of Rights—except for the right to bear arms, the right to an indictment
by aGRAND JURY, the right to trial by jury in civil cases, and the right against quartering soldiers—
must be protected by state governments under the Equal Protection and Due Process Clauses of the Fourteenth Amendment
The Supreme Court has explained that each
of the incorporated rights is “deeply rooted in the nation’s history,” and is “fundamental” to the concept of “ordered liberty” embodied in the Due Process Clause Palko v Connecticut, 302 U.S 319, 58 S Ct 149, 82 L.Ed 288 (1937) Any state that denies one of these rights to its residents violates its duty to provide“equal protection of the laws” guaranteed to the residents of every state States may provide their residents with more constitutional protection than is afforded
by the U.S Bill of Rights, but the Fourteenth Amendment prohibits any state from providing its residents with less protection
FURTHER READINGS Amar, Akhil Reed 1992 “The Bill of Rights and the Fourteenth Amendment ” Yale Law Journal 101.
Jenkins, Ray 1987 “Amendable Constitution Allows for Corrections of Framer ’s Errors.” Los Angeles Daily Journal (June 4).
Papenfuse, Edward C 2006 Outline, Notes and Documents Concerning Barron v Baltimore, 32 U.S 243 Available online at http://mdhistory.net/msaref06/barron/index.
html; website home page: http://mdhistory.net (accessed August 28, 2009).
BARRON V BALTIMORE 525
Trang 9BARTER The exchange of goods or services without the use
of money as currency
Barter is a contract wherein parties trade goods or commodities for other goods, as op-posed to sale or exchange of goods for money
Barter is not applicable to contracts involving land, but solely to contracts relating to goods and services For example, when a tenant exchanges the performance of various mainte-nance tasks around a house for free room and board, a barter has taken place
BASE FEE
An interest in real property that has the potential
to last forever, provided a specific contingency does not occur
For example, a grantee might be given an estate in blackacre, “provided the land is not used for illegal purposes.”
This type of fee is also known as a con-ditional, determinable, or qualified fee
BASE LINE Survey line used in the government survey to establish township lines Horizontal elevation line used as a centerline in a highway survey
BASEBALL Although certain laws have protected citizens for decades from various forms of monopolistic practices, the legal decisions surrounding
“America’s favorite pastime” have allowed it to
be exempt from most forms of government intervention Through the years, Major League Baseball (MLB) has escaped measures that would have ended its exclusive control over contracts and copyrights and its all-around monopoly on professional U.S baseball Mean-while, as contracts and team expenditures have run well into the millions of dollars, many have come to see baseball as less of a sport and more of a business—and a business that should
be regulated Americans still revere baseball, but fans, players, and owners all hope that govern-ment decisions will save the game from labor strikes and a host of other ills The federal government, however, has done little other than let baseball remain a special, nationally pro-tected institution
The growth of professional baseball—and some of its headaches—followed a natural economic progression Much about the sport’s origin is shrouded in myth, but the sport is thought to have begun sometime in the nineteenth century The first organized contest probably took place on June 19, 1846, between two amateur teams: the New York Nine and the Knickerbockers In 1869 the Cincinnati Red Stockings, a professional team, paved the way for other franchises to develop In 1871 the National Association of Professional Base Ball Players was born The National League of Professional Base Ball Clubs was formed in
1876, and baseball has been both a game and profitable enterprise ever since
From baseball’s early days, the courts have failed to see the game as posing a threat to business laws The Sherman Antitrust Act of
1890 (15 U.S.C.A § 1 et seq.)—a statute prohibiting monopolies—forbids undue RE-STRAINT OF TRADE on commerce between states
In 1920, an appeals court ruled that baseball is unobjectionable in part because it operates on
an interstate level (National League of Profes-sional Baseball Clubs v Federal Baseball Club of Baltimore, 50 App D.C 165, 269 F 681) It stated, in general reference to other forms of trade and commerce, that“the Sherman Anti-trust Act does not apply, unless the effect of the act complained of on interstate commerce is direct, not merely indirect or incidental.” Baseball, the court found, did not pose a threat
to the economy of the world of sports The National League case stemmed from allegations made by the Federal League’s Baltimore Terrapins In the early 1900s the struggling Federal League sought to be a venture
of the major leagues and competed with other major league franchises But the National and American Leagues bought out many of the Federal teams, sometimes player by player The Terrapins, one of the last surviving teams
in the Federal League, sued the National League Representatives of the Terrapins argued that MLB owners had treated the Terrapins with scorn, offering the team only $50,000 in settlement for damages incurred by the buyouts
In court, the Terrapins argued that MLB had violated antitrust laws and had participated in monopolizing ventures
The case made it all the way to the U.S Supreme Court (National League, 259 U.S 200,
526 BARTER
Trang 1042 S Ct 465, 66 L Ed 898[1922]) In 1922, in
an opinion written by Justice Oliver Wendell
Holmes Jr., the Supreme Court declared
baseball to be, first and foremost, a sport and
not a business In Holmes’s words, baseball
activities were “purely state affairs.” The
deci-sion gave baseball the unique status of being the
only official professional sports organization to
be exempt from antimonopoly laws In effect,
the decision protected baseball as a national
treasure
The National League decision was
reaf-firmed in 1953 with Toolson v New York
Yankees (346 U.S 356, 74 S Ct 78, 98 L Ed
64) In a brief statement, the Court ruled against
the PLAINTIFF, minor league player George
Toolson Toolson’s arguments were based on
the complaint that baseball was a monopoly
that offered him unfair contract deals The
Court said Congress alone had been given
the right to exercise powers that could break
up the structure of baseball’s professional
organization
The controversial issue in Toolson was
baseball’s reserve clause, the earliest symbol of
the sport’s underlying business nature The
reserve clause stated that once a player had
accepted a contract to play for a certain team,
the player was bound to serve that team for one
year and must enter into a new contract with
the same team“for the succeeding season at a
salary to be determined by the parties to such
contract.” It was agreed that if a player violated
the reserve clause, he would be guilty of
“contract jumping” and would be ineligible to
serve in any club of the leagues until formally
reinstated
The reserve clause guaranteed players little
more than an income Players attacked it In
the 1970s, Curtis C Flood, center fielder for
the St Louis Cardinals, brought charges
against Bowie K Kuhn, acting commissioner
of baseball The issue was a player’s FREE
AGENCY, which Flood had requested and Kuhn
had denied Free agency is the option to
negotiate a contract with any team, basically
a release from the reserve clause Taking his
case to the Supreme Court, Flood argued that
the reserve clause unfairly prevented him from
striking deals with other teams that would pay
him more for his services The Supreme Court
decided on June 19, 1972, that it did not have
the authority to act (Flood v Kuhn, 407 U.S
258, 92 S Ct 2099, 32 L Ed 2d 728) Only
baseball’s acting commissioner could designate free agency
Player discontent, as a reaction to the decision, set the stage for more free agency bids, and ARBITRATION between players and owners began in 1973 In January 1976, Andy Messersmith succeeded in obtaining free
agen-cy, which ushered in a new era of high stakes:
Players could now dictate certain terms of employment, and the era of multimillion-dollar contracts began
Money was also at issue in a case related to another aspect of the game After more than a century of professional play, in 1986 televised broadcasts of baseball and the copyright laws surrounding them came into question Players felt that the terms of their employment did not include their performances for television audi-ences They insisted that the telecasts and the profits being derived from them were being made without their consent In Baltimore Orioles v Major League Baseball Players Associa-tion, 805 F.2d 663 (7th Cir 1986), major league clubs sought a judgment that upheld their exclusive right to broadcast games The major league players argued that their performances were not copyrightable works because they lacked sufficient artistic merit Refusing to cut
With a payroll of approximately
$11,000, the 1869 Cincinnati Red Stockings were the first professional baseball team LIBRARY OF CONGRESS BASEBALL 527