Preferring to take his seat in the Senate, Benjamin declined Fillmore’s offer and thereby missed the oppor-tunity to be the first Jewish Supreme Court justice.. Benjamin was named attorn
Trang 1His REAL ESTATE purchases were made possible by a growing and successful law practice By 1834 he had secured his place in the local legal community through a joint publishing venture with Thomas Slidell Their Digest of the Reported Decisions of the Superior Court of the Late Territory of Orleans and of the Supreme Court of Louisiana was widely used
Benjamin’s national reputation as a lawyer was established by his participation in a case involving the brig Creole His brief—which reviewed the status of SLAVERY under both
INTERNATIONAL LAWand U.S domestic law—was printed as a pamphlet and widely circulated In this more liberal period of his life, he believed and argued that slavery was against the laws of humans and nature He would later reverse his position
Benjamin began his political career in 1842 when he was elected as the Whig candidate to the lower house of the Louisiana Legislature He
attended the Louisiana Constitutional Conven-tion from 1844 to 1845 Benjamin’s wife was not supportive of his interest in politics, or tolerant of his absences In 1845, after eleven years of MARRIAGE, she moved to Paris The couple rarely lived together again as HUSBAND AND WIFE, but they never divorced—and Benja-min’s lifelong devotion to his wife has been well documented
After his wife’s departure, Benjamin retreated to his plantation, from 1845 to 1848, and began to experiment with sugar chemistry and processing Ultimately, he lost the planta-tion when a friend defaulted on a note that Benjamin had signed
Despite his business reversals, Benjamin had
“great dreams about the future development of American commerce” and found himself with a renewed commitment to political service He shared a growing belief in the South that foreign commerce would strengthen the region and restore the balance of power lost by the
COMPROMISE OF1850 In 1852 Benjamin ran as
a WHIG PARTY candidate for one of Louisiana’s U.S Senate seats
His successful bid for office made him the nation’s first Jewish U.S senator Also in 1852, Benjamin was nominated to the U.S Supreme Court by PresidentMILLARD FILLMORE Preferring
to take his seat in the Senate, Benjamin declined Fillmore’s offer and thereby missed the oppor-tunity to be the first Jewish Supreme Court justice Benjamin also turned down an appoint-ment as ambassador to Spain, in 1853 Mindful
of the escalating national conflict between North and South, he wanted to stay in the United States In 1854 he wrote,“[A] gulf is already opened between the Northern and Southern Whigs God knows what awaits
us The future looks full of gloom to me.”
Judah Philip
Benjamin.
PUBLIC DOMAIN.
Judah Philip Benjamin 1811–1884
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1811 Born, St.
Croix, British
West Indies
1813 Family immigrated to Charleston, S.C.
1827 Moved to Louisiana
1842 Elected
to Louisiana Legislature
1852 Elected first Jewish U.S senator
1861 Appointed attorney general of the Confederacy
1861–65 U.S Civil War
1862–65 Served as secretary
of state of the Confederacy
1865 Fled to England to avoid post-war proscecution
1872 Selected
as Queen's counsel
1866 Admitted to English bar at Lincoln's Inn
1883 Retired
to France
1884 Died, Paris, France
1825
18 BENJAMIN, JUDAH PHILIP
Trang 2In 1856 Benjamin left the Whig party and
joined the more conservative southern
Demo-crats He was reelected to the Senate and
continued to serve Louisiana there until the
CIVIL WAR Following the election of ABRAHAM
LINCOLNin 1860, Benjamin advised secession; he
resigned his Senate seat when Louisiana voted to
leave the Union
Benjamin was named attorney general of the
Confederate States of America in early 1861 He
served as attorney general until November 21,
1861, when he became secretary of war He
inherited a war department that was
disorga-nized and deeply in debt Throughout 1862, the
Confederacy suffered both human resource and
equipment shortages, and severe casualties
A plan by Benjamin to build troop strength by
drafting slaves—with the promise of
emancipa-tion for service—was prepared and sent to the
Confederate congress Seeing the initiative as a
threat to the principle of slavery, the congress
failed to pass the measure Benjamin was
eventu-ally charged with inefficiency, and a motion to
remove him from his post was drafted
President Davis, still confident in
Benja-min’s abilities, stepped in and appointed him
SECRETARY OF STATEon March 18, 1862 Benjamin
served in that capacity until the fall of the
Confederacy, but he never fully regained his
popularity with the Southern people Viewed in
an historical context, Benjamin’s service and
loyalty to the Confederacy are extraordinary and
commendable—especially in light of the
ex-treme anti-Semitism and hatred that pervaded
the South throughout the war years
After Robert E Lee’s surrender toULYSSES S
GRANT at Appomattox Courthouse on April 9,
1865, U.S agents targeted Benjamin for capture
because it was assumed, falsely, that he knew the
location of large sums of money After a brief
stop in North Carolina, Benjamin headed south
to Florida Garbed as a Frenchman and
speaking fluent French, he passed himself off
as a journalist, Monsieur Bonfals (which
translates as Mr Good Disguise) Because
Benjamin was too fat to ride a horse, he
traveled by cart in the company of a former
Confederate officer from New Orleans who
pretended to be his interpreter
On May 1, 1865, federal agents increased their
efforts to locate all Confederate fugitives, and the
New York Times called for Jefferson Davis, Judah
Benjamin, and Confederate secretary of war John
C Breckenridge to die“the most disgraceful death
on the gallows.” The price on Benjamin’s head was
$40,000, dead or alive But by May, Benjamin had already made it to Tampa
With the help of Confederate sympathizers and former Confederate soldiers, Benjamin traveled from Tampa to the Gamble Mansion
on Florida’s southwest coast En route, he presented himself as Mr Howard, a farmer and cattle buyer With federal troops closing in,
he was twice forced to hide in a canebrake near the mansion to avoid capture Eventually, Benjamin was moved to Sarasota Bay, where
he sailed down the coast to Knight’s Key with Captain Frederick Tresca, a former blockade runner, and H A McLeod, an experienced sailor for hire The trio reached Knight’s Key on July 7, 1865 From there, Benjamin boarded a boat for Bimini, in the Bahamas After this vessel was shipwrecked, he was rescued and returned to Florida, where he again faced capture by federal agents Benjamin eventually reached Bimini, and then set sail for England
He arrived in England on August 30, 1865, after almost five months of dangerous and grueling travel
Without funds, Benjamin made the neces-sary arrangements to practice law in England
He was admitted to the bar at Lincoln’s Inn in
1866, and he was soon a respected member of the British bar Most of his cases focused on corporate law He also wrote about matters pertaining to business and corporate law His Treatise on the Law and Sale of PERSONAL PROPERTY: With Special Reference to the American Decisions and the French Code and Civil Law was published in 1868 Commonly known as Benjamin on Sales, the book was a definitive source on commercial matters on both sides of the Atlantic for the next twenty-five years In
1872, Benjamin was selected Queen’s Counsel
He practiced law in England until 1883, when
he retired to France He is credited with making major contributions to the British Empire’s dominance of world trade in the last half of the nineteenth century
Benjamin died May 6, 1884, in Paris He was buried at the Pere Lachaise Cemetery under a headstone marked Philippe Benjamin
FURTHER READINGS Curran, Charles “The Three Lives of Judah P Benjamin.”
1967 History Today 17, no 9.
PRESENTS ITSELF WITH AN ORGANIZED GOVERNMENT AND
INSTITUTIONS CREATED BY THE FREE WILL OF THE CITIZENS
[MAY]DEMAND ITS RIGHT
—JUDAH BENJAMIN
Trang 3Evans, Eli N., and Robert Weinberg 1988 Judah P.
Benjamin: The Jewish Confederate New York: Free Press.
Field, Martha A “The Differing Federalisms of Canada and the United States.” Law and Contemporary Problems 55.
Ginsburg, Ruth Bader “From Benjamin to Brandeis to Breyer: Is There a Jewish seat? ” 2002 Brandeis Law Journal 41 (winter).
“Journey to Asylum.” 1987 Civil War Times Illustrated 26, vol 8 (December).
“Judah P Benjamin’s Loyalty to Jefferson Davis.” 1966.
Georgia Review 20, vol 3.
Krause, Allen “The Enigmatic Judah Benjamin.” 1978.
Midstream 24, no 8.
“Meeting Mr Benjamin.” 1986 Queen City Heritage 44, vol.
3 (fall).
Naresh, Suman 1996 “Judah Philip Benjamin at the English Bar ” Tulane Law Review 70 (June).
Patrick, Rembert W 1950 The Opinions of the Confederate Attorneys General, 1861–1865 Buffalo: Dennis.
Preisser, Thomas M “The Virginia Decision to Use Negro Soldiers in the Civil War, 1864–1865.” 1975 Virginia Magazine of History and Biography 83, no 1 Available online at http://www.jstor.org/stable/4247927; website home page: http://www.jstor.org (accessed July 7, 2009).
Sanchez, John E 1991 “Religious Affirmative Action in Employment: Fearful Symmetry ” Detroit College of Law Review.
Sarna, Jonathan D “The Spectrum of Jewish Leadership in Ante-Bellum America ” 1982 Journal of American Ethnic History 1, no 2.
Schene, Michael G 1982 The Daring Escape of Judah P.
Benjamin Tampa, FL: Tampa Bay History.
Wacholder, Ben Zion “Some Legal and Political Views of Judah P Benjamin ” 1956 Historica Judaica 18, no 1.
vBENJAMIN, PARK Park Benjamin was an eminent patent lawyer and author
Benjamin was born May 11, 1849 A graduate of the U.S Naval Academy in 1867,
he left the Navy in 1869 and earned a bachelor
of laws degree from Albany Law School in 1870 From 1872 to 1878, Benjamin was associate editor of the Scientific American and became editor in chief of Appleton’s Cyclopædia of Applied Mechanics in 1893 Benjamin wrote The United States Naval Academy (1900) and numerous essays and naval articles for various periodicals He died August 21, 1922, in New York City
vBENTHAM, JEREMY Described as a philosopher, jurist, and reformer, Jeremy Bentham is possibly best known as one
of the leading proponents of utilitarianism Although he was a devoted scholar who spent much of his life writing about legal reform, he published little Regardless, Bentham had a profound effect on the politics of his day, influenced many of his contemporaries (includ-ing eminent British philosopher JOHN STUART MILL), and introduced a number of terms and definitions, which are still used today in the study of philosophy, economics, and politics Bentham was born February 15, 1748, in Houndsditch, near London, into a family of attorneys He was educated at Oxford and admitted to the bar, but decided not to follow in the footsteps of his father and grandfather Instead of practicing law, Bentham chose to pursue a career in legal, political, and social reform, applying principles of ethical philoso-phy to these endeavors
He was greatly influenced by the work of Claude-Adrien Helvétius, a French philosopher who believed that all persons are intellectually
Park Benjamin 1849–1922
◆
◆
◆
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◆
◆
◆
1849 Born,
New York City
1860 Lenoir constructed the first
internal combustion engine
1861–65 U.S Civil War
1867 Graduated from U.S Naval Academy
1870 Received bachelor of laws from Albany Law School (NY) 1872–78 Worked
as associate editor at
Scientific American
1879 Edison invented the incandescent light bulb
1893 Became editor in chief at
Appleton's Cyclopaedia of Applied Mechanics
1898 A History of
Electricity published
1888 Eastman introduced the
"Kodak" box camera
1908 Henry Ford introduced the Model T
1922 Died, New York City
1914–18 World War I
20 BENJAMIN, PARK
Trang 4equal and that differences arise solely from
educa-tional opportunities Helvetius also formulated
a theory that good is measured by the degree of
self-contentment experienced by a person, and
that self-interest is the compelling force for all
action This latter belief had a profound effect
on Bentham, who incorporated the idea in
the formulation of the basic principles of
utilitarianism
In 1789 Bentham gained public attention
with the publication of his Introduction to the
Principles of Morals and Legislation, which set
forth his fundamental principles He believed
that the greatest happiness for the greatest
number is the basis of morality Happiness and
pleasure were the same, and included social,
intellectual, and moral as well as physical
pleasures According to Bentham, each pleasure
has certain characteristics, including intensity
and duration, and he established a scale of
measurement to judge the worth of a pleasure
or a pain Bentham further opined that each
person strives to do what makes him or her
happiest The happiness of an individual and
the GENERAL WELFARE are complementary; the
achievement of the greatest amount of
happi-ness is the goal of morality
Bentham applied his views to reform
legisla-tion, feeling that the purpose of the law was to
maximize total happiness within the limitations
of government As a result, he achieved great
advances in prison reform, CRIMINAL LAW, CIVIL
SERVICE, and insurance and was active in the
compilation of laws into comprehensible text
Bentham is particularly noted for his
theories of punishment He claimed that all
punishment required justification, because he
believed that all punishment is inherently evil
Bentham also believed that to a utilitarian such
as himself, real justice is less important than apparent justice In other words, Bentham believed that seeing justice done is more important than justice actually being done
Influenced by the work of Italian philosopher Cesare Beccaria, Bentham formed some harsh notions of punishment, such as his belief that in certain cases torture could be justified He wrote that punishment was a relatively weak disincentive against recidivism, and that there is always a risk that an offender will commit another offense He suggested that torture removes this risk because torture ceases immediately when a subject com-plies with the demands of authority Of course, this idea discounts the question of whether the subject can in fact comply
Jeremy Bentham 1748–1832
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◆
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◆
◆
◆
❖
1748 Born,
London, England
1760 Admitted
to Queen's College, Oxford
1766 Received M.S from Queen's College
1776
Fragment on Government
published anonymously
1775–83 American Revolution
1789 Introduction to the
Principles of Morals and Legislation published;
French Revolution began
1809 Completed criticism on working of English libel law
1817 Became
a member of Lincoln's Inn, Oxford
1823 Helped establish
Westminster Review
1832 Died, London, England
Jeremy Bentham LIBRARY OF CONGRESS BENTHAM, JEREMY 21
Trang 5As a theorist of punishment, Bentham was naturally interested in the English penal system
His studies led him to develop a model of an English prison that applied his theories of punishment to incarceration He called his model the “Panopticon.” The Panopticon was
a prison building—and a whole system of incarceration—that allowed guards total sur-veillance and physical control over prison inmates Writing of the Panopticon, Bentham claimed that hard labor, constant surveillance and monitoring, and solitary confinement (for purposes of reflection and repentance) were fundamental requirements needed to reform and rehabilitate criminal offenders This theory builds upon the notion that punishment can be the means to make an offender lead a life of moral and civil rectitude
Bentham attempted to persuade President
JAMES MADISON to adopt a code of laws that he himself had devised The philosopher was careful to cite existing rules and previous cases
to illustrate that his legal theories were sound
Madison rejected Bentham’s idea in 1811, but in the 1830s a group of U.S reformers adopted several of his policies with the objective of formulating a simplified code of law
Although Bentham is often credited with founding University College, London, this belief
is erroneous However, Bentham’s views on unbiased access to education were instrumental
in the school’s development When Bentham died June 6, 1832, per his instructions, his body was dissected, embalmed, dressed, and seated in
a chair The seated Bentham is housed in a cabinet in the main building of University College, along with his manuscripts, which are preserved in the school’s library
FURTHER READINGS Ben-Dor, Oren 2000 Constitutional Limits and the Public Sphere: A Critical Study of Bentham’s Constitutionalism.
Oxford; Portland, OR: Hart.
Bentham, Jeremy 1996 An Introduction to the Principles of Morals and Legislation New York: Oxford Univ Press.
Engelmann, Stephen G 2003 Imagining Interest in Political Thought: Origins of Economic Rationality Durham, NC:
Duke Univ Press.
Kelly, Paul Joseph 1990 Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law Oxford:
Oxford Univ Press.
Sweet, William “Bentham, Jeremy (1748–1832).” The Internet Encyclopedia of Philosophy Web site Available online at http://www.utm.edu/research/iep/b/bentham.
htm; website home page: http://www.utm.edu (accessed July 7, 2009).
BEQUEATH
To dispose of personal property owned by a decedent at the time of death as a gift under the provisions of the decedent’s will
The term bequeath applies only toPERSONAL PROPERTY A testator, to give real property to someone in a testamentary provision, devises it Bequeath is sometimes used as a synonym for devise
BEQUEST
A gift of personal property, such as money, stock, bonds, or jewelry, owned by a decedent at the time
of death which is directed by the provisions of the decedent’s will; a legacy
A bequest is not the same as a devise (a testamentary gift of real property) although the terms are often used interchangeably When this occurs, a bequest can be a gift of real property
if the testator’s intention to dispose of real property is clearly demonstrated in the will There are different types of bequests A charitable bequest is a gift intended to serve a religious, educational, political, or general social purpose to benefit mankind, aimed at the com-munity or a particular segment of it Charitable bequests also reduce the estate taxes that might
be owed on the estate left by a decedent
A demonstrative bequest is a gift of money that must be paid from a particular source, such
as a designated bank account or the sale of stock
in a designated corporation A general bequest is
a gift of money or other property that can be paid or taken from the decedent’s general assets and not from a specific fund designated by the terms of the will
BERING SEA DISPUTE The Bering Sea Dispute involved a late nine-teenth-century controversy between the United States on one side and Great Britain and Canada
on the other side over the international status of the Bering Sea The dispute was generated over the U.S assertion that it controlled the Bering Sea and all seal hunting off the coast of Alaska The dispute, which led to the seizure of a number of Canadian ships by the United States, was finally resolved by an internationalARBITRATION
in 1893
The Bering Sea is the northernmost part
of the Pacific Ocean After the United States
INFRACTION OF
—JEREMY BENTHAM
22 BEQUEATH
Trang 6purchased Alaska from Russia in 1867, it
assumed the right of control over the Bering
Sea that had been held by Russia The dispute
arose after the Alaska Commercial Company, a
U.S business that had a monopoly on killing
seals for their furs, found that Canadian
hunters were killing seals as they swam
through the ocean each spring toward their
summer homes in the Pribilof Islands The
Pribilof Islands were part of the U.S Alaskan
territories Fearing that the herds would be
killed off by pelagic (open-sea) sealing, the U.S
government seized several Canadian sealing
vessels in 1886 and instituted condemnation
proceedings in an Alaskan court The proceeds
were given to the Alaskan Commercial
Com-pany as compensation
These actions outraged the Canadian and
British governments, who disputed the U.S
claim that it controlled not just the three-miles
of sea bordering the Pribilof Islands but the
entire Bering Sea After several years of tensions
and additional vessel seizures, the three
coun-tries agreed to arbitration by an international
tribunal in Paris The tribunal issued its
decision in 1893 It rejected the U.S claim of
total control of the Bering Sea and awarded the
Canadian owners of the seized ships $473,000 in
damages The tribunal also imposed restrictions
on pelagic sealing, but it failed to control the
problem In 1911 the United States, Great
Britain, Russia, and Japan signed a treaty that
prohibited pelagic sealing for a period of time
and then placed limits on how many seals could
be hunted The agreement was an important
step in seeking international consensus on
environmental matters
FURTHER READINGS Gay, John Thomas 1987 The American Fur Seal Diplomacy.
New York: Peter Lang.
Mead, Walter Russell 2002 Special Providence: American Foreign Policy and How It Changed the World New York: Routledge.
Scholefield, E.O.S., and Frederick William Howay 1914.
British Columbia from the Earliest Times to the Present, vol 2 Vancouver, B.C.: Clarke.
CROSS REFERENCES Boundaries; International Law.
vBERLE, ADOLPH AUGUSTUS, JR
Adolph Augustus Berle Jr was a diplomat, teacher, and writer He was born January 29,
1895, in Boston, Massachusetts He was
educat-ed at Harvard, receiving a bachelor of arts degree in 1913, a master of arts degree in 1914, and a bachelor of laws degree in 1916, in which year he was also admitted to the bar
After military duty in WORLD WAR I, Berle served as a U.S representative at the Paris Peace Conference during 1918 and 1919 He opposed the conditions of the Versailles Treaty and resigned from the delegation He returned to the United States and established his legal practice in New York City
Berle began teaching corporate law at Columbia University in 1927 During the 1930s he assisted the administration of President FRANKLIN DELANO ROOSEVELT in the formulation ofNEW DEAL legislation concerning
SECURITIESand banking
From 1938 to 1944 Berle was assistant
SECRETARY OF STATE; in 1945 he was U.S
ambassador to Brazil; and in 1946 he returned
1900
Adolph Augustus Berle Jr 1895–1971
❖
1895 Born, Boston, Mass.
1914–18 World War I
1918–19 Served as member
of Paris Peace Conference
1927 Began teaching corporate law at Columbia University
1932 Became member of New Deal "brain trust"; The
Modern Corporation and Private Property published
1938 Appointed assistant secretary
of state
1950–53 Korean War
1934–37 Served as chamberlain for Mayor LaGuardia (New York City)
1945 Appointed U.S.
ambassador to Brazil 1952–55 Served as chair
of the Liberal Party
1966 Retired from teaching at Columbia
1971 Died, New York City
1939–45 World War II
GRANTED TO A
WHETHER DERIVED FROM STATUTE OR
EXERCISABLE ONLY FOR THE RATABLE BENEFIT OF ALL THE SHAREHOLDERS AS THEIR INTEREST
—ADOLPH BERLE JR.
Trang 7to Columbia University to continue his teach-ing career He helped establish the Liberal party and acted as its chairman from 1952 to 1955
One of Berle’s several publications was The Modern Corporation and Private Property (1932), written with coauthor G C Means
Berle died February 17, 1971, in New York City
vBERRIEN, JOHN MACPHERSON John Macpherson Berrien served as U.S attor-ney general under PresidentANDREW JACKSON Berrien was born August 23, 1781, in New Jersey He graduated from Princeton in 1796 and was admitted to the Georgia bar in 1799
He began his judicial career in Georgia as a
CIRCUIT COURT judge in 1810 and remained on the bench until 1821
Berrien sat in the Georgia Senate from 1822
to 1823 From 1824 to 1829, he represented Georgia in the U.S Senate, as a member of the
DEMOCRATIC PARTY
He served as U.S attorney general from
1829 to 1831 He again served as senator from Georgia from 1841 to 1845 and from 1845 to
1852 as a member of theWHIG PARTY
BEST EVIDENCE
An original document or object offered as proof of
a fact in a lawsuit as opposed to a photocopy of, or other substitute for, the item or the testimony of a witness describing it
Best evidence, also known as PRIMARY EVIDENCE, usually denotes an original writing, which is considered the most reliable proof of its existence and its contents If it is available to, and obtainable by, a party, it must be offered into evidence at a trial Best evidence is distinguishable from SECONDARY EVIDENCE, a
reproduction of an original or testimony establishing its existence, which will be admis-sible as proof only if the best evidence cannot
be obtained, and ensuring no fault of the party seeking to present it The principle that the best available evidence must be presented as proof in a lawsuit is embodied in the best-evidence rule
BESTIALITY Sexual relations between a human being and an animal
AtCOMMON LAW, bestiality was considered a crime against nature and was punishable by death In the early 2000s, it is prohibited by statutes in most states as a form ofSODOMY The penalty for committing the offense is a fine, imprisonment, or both
BEYOND A REASONABLE DOUBT The standard that must be met by the prosecu-tion’s evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty
If the jurors or judge have no doubt as to the defendant’s guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant’s guilt beyond a reason-able doubt and the DEFENDANT should be pronouncedGUILTY
The term connotes that evidence establishes
a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible It does not mean that no doubt exists as to the accused’s guilt, but only that no REASONABLE DOUBT is possible from the evidence presented
John Macpherson Berrien 1781–1856
◆
1781 Born,
Rocky Hill,
New Jersey
◆
1796 Graduated from Princeton University
1829–31 Served
as U.S attorney general under President Jackson
1845 Appointed to Supreme Court of Georgia; left to rejoin U.S Senate
1861–65 U.S Civil War 1775–83
American Revolution
1856 Died, Savannah, Georgia
1841 Reelected to U.S Senate
1810–21 Served
as circuit court judge in Georgia
1799 Admitted to Georgia bar
1824 Elected to U.S Senate
❖
◆
1822 Elected to Georgia state Senate
GRANTED BY THE
NO SERIES OF
USURPATION CAN
GIVE IT A LEGITIMATE
EXISTENCE IN THAT
—JOHN BERRIEN
24 BERRIEN, JOHN MACPHERSON
Trang 8Beyond a reasonable doubt is the highest
standard of proof that must be met in any trial
In civil litigation, the standard of proof is either
proof by a preponderance of the evidence or
proof by clear and convincing evidence These
are lower burdens of proof A preponderance of
the evidence simply means that one side has
more evidence in its favor than the other, even
by the smallest degree Clear and convincing
evidence is evidence that establishes a high
probability that the fact sought to be proved is
true The main reason that the high proof
standard of reasonable doubt is used in criminal
trials is that such proceedings can result in the
deprivation of a defendant’s liberty or even in
his or her death These outcomes are far more
severe than occur in civil trials, in which money
damages are the common remedy
CROSS REFERENCES
Clear and Convincing Proof; Due Process of Law;
Preponderance of Evidence; Reasonable Doubt.
BIAS
A predisposition or a preconceived opinion that
prevents a person from impartially evaluating
facts that have been presented for determination; a
prejudice
A judge who demonstrates bias in a hearing
over which he or she presides has a mental
attitude toward a party to the litigation that
hinders the judge from supervising fairly the
course of the trial, thereby depriving the party
of the right to a fair trial A judge may recuse
himself or herself to avoid the appearance of
bias If, during theVOIR DIRE, a prospective juror
indicates bias toward either party in a lawsuit,
the juror can be successfully challenged for cause and denied a seat on the jury
BICAMERAL The division of a legislative or judicial body into two components or chambers
The CONGRESS OF THE UNITED STATES is a bicameral legislature, since it is divided into two houses, the Senate and the House of Representatives
vBICKEL, ALEXANDER MORDECAI Alexander Mordecai Bickel was a noted legal scholar, law professor, and essayist who wrote extensively aboutCONSTITUTIONAL LAWissues and the U.S Supreme Court
Bickel was born December 17, 1924, in Bucharest, Romania, and immigrated to the United States with his parents in 1939 He attended the City College of New York, gra-duating Phi Beta Kappa in 1947, and Harvard Law School, where he served as editor of the Harvard Law Review and graduated summa cum laude in 1949
Following law school, Bickel clerked for Judge Calvert Magruder of the U.S Court of Appeals in Boston From 1950 to 1952 he was
a STATE DEPARTMENT law officer in Frankfurt, Germany, and he was a member of the European Defense Community Observer Dele-gation in Paris He returned to the United States
to become law clerk to JusticeFELIX FRANKFURTER
during the U.S Supreme Court’s 1952–53 term
Bickel assisted Justice Frankfurter in the Court’s consideration of the landmark desegre-gation decision inBROWN V.BOARD OF EDUCATION,
Alexander Mordecai Bickel 1924–1974
1939–45 World War II
1950–53 Korean War
1961–73 Vietnam War
1924 Born,
Bucharest, Romania
1939 Immigrated to U.S with parents
1949 Graduated summa cum laude from Harvard Law School
1952–53 Clerked for U.S Supreme Court Justice Felix Frankfurter
1956 Joined Yale Law School faculty
1957 Edited The Unpublished
Opinions of Mr Justice Brandeis
1963 The Least
Dangerous Branch: The Supreme Court
at the Bar of Politics
published
1966 Named Chancellor Kent Professor of Law and Legal History
1971 Argued
Pentagon Papers
case before U.S.
Supreme Court
1974 Named Sterling Professor
of Law; died, New Haven, Conn.
1975 Morality of
Consent published
posthumously
THE LEAST DANGEROUS BRANCH
OF OUR
—A LEXANDER B ICKEL
Trang 9349 U.S 483, 74 S Ct 686, 98 L Ed 873 (1954) The plaintiffs in Brown challenged the assignment of black and white students to separate public schools The Court held that such racial segregation in public education was unconstitutional During his clerkship with Frankfurter, Bickel studied the FOURTEENTH AMENDMENT extensively and concluded that the Constitution did provide that congressional or
JUDICIAL ACTIONcould be used to abolish school segregation
After completing his clerkship with Justice Frankfurter, Bickel joined the faculty of Yale Law School, in 1956 He was named Chancellor Kent Professor of Law and LEGAL HISTORY in
1966, and Sterling Professor of Law in 1974, the year of his death
Bickel wrote a number of influential books and essays In addition to longer works, he published more than a hundred articles in newspapers and magazines He edited The Unpublished Opinions of Mr Justice Brandeis, a volume of eleven Brandeis draft opinions concerning the issue of judicial restraint, a major theme in much of Bickel’s later writings
In his most influential work, The Least Danger-ous Branch: The Supreme Court at the Bar of Politics (1963), Bickel argued that courts should make decisions that are grounded in history and
in the values found in the Constitution, and should not make decisions that cannot gain public support He believed that judges should exercise care to avoid deciding constitutional issues if other grounds for aRULINGare available, such as grounds for refusing to hear the case or grounds for using doctrines like statutory construction to decide the case
In The Supreme Court and the Idea of Progress (1970), another work advocating judi-cial restraint, Bickel criticized the activism of the WARREN COURT in tackling social issues He noted that “history has little tolerance for [the Court’s] reasonable judgments that turn out to be wrong.” Bickel also argued for judicial restraint in the so-called Pentagon Papers case, New York Times Co v United States, 403 U.S
713, 91 S Ct 2140, 29 L Ed 2d 822 (1971), in which he represented the New York Times before the Supreme Court In Pentagon Papers, the government sought to prevent the New York Times and the Washington Post from publishing the contents of a classified study titled History
of U.S Decision-Making Process on Viet Nam
Policy Rather than arguing thatPRIOR RESTRAINT
of the publication of the classified material was unconstitutional, Bickel instead maintained that the government had been unable to rebut the heavy presumption against prior restraint and that such restraint was to be found in congressional legislation rather than in asser-tions of governmental power The Court ultimately rejected the government’s claim that the papers should not be published, and several
of the justices adopted Bickel’s analysis in their opinions
A recognized expert on theSUPREME COURT OF THE UNITED STATES, Bickel served as a member
of the Study Group on the Caseload of the Supreme Court In 1973 he authored The Caseload of the Supreme Court—and What, If Anything, to Do about It, in which he concluded that the Court’s caseload should be reduced Easing the Court’s workload is critical, he argued, to ensure careful deliberation of impor-tant issues and to avoid transforming the Court
“into a high-speed, high-volume enterprise” that would“mock the idea of justice and mock the substantive reforms of a generation.”
FURTHER READINGS Bickel, Alexander M 1973 The Caseload of the Supreme Court and What, If Anything, to Do about It Washington, D.C.: American Enterprise Institute for Public Policy Research.
——— 1963 The Least Dangerous Branch: The Supreme Court at the Bar of Politics Indianapolis: Dobbs-Merrill.
——— 1970 The Supreme Court and the Idea of Progress New York: Harper & Row.
Congressional Quarterly 1989 Guide to the U.S Supreme Court 2d ed Washington, D.C.: Congressional Quar-terly 1990.
Ward, Kenneth 1996 “Alexander Bickel’s Theory of Judicial Review Reconsidered ” Arizona State Law Journal 28 (fall): 893 –926.
vBIDDLE, FRANCIS BEVERLY Francis Beverly Biddle achieved prominence as
a jurist
Biddle was born May 9, 1886, in Paris, France
He was a graduate of Harvard, class of 1909, and earned a bachelor of laws degree from his alma mater in 1911 From 1911 to 1912, he was private secretary to Oliver Wendell Holmes Jr., an emi-nent U.S Supreme Court justice
In 1912 Biddle was admitted to the Penn-sylvania bar and from 1915 to 1939, practiced with two successful Philadelphia law firms— Biddle, Paul and Jayne, and Barnes, Biddle and Myers—specializing in corporation law
PUBLIC IS BUT THE
EXCUSE OF THOSE
WHO HAVE BEEN
UNABLE TO
INFLUENCE THE
—F RANCIS B IDDLE
26 BIDDLE, FRANCIS BEVERLY
Trang 10Biddle served as special assistant U.S.
attorney from 1922 to 1926 and as chairman
of the NATIONAL LABOR RELATIONS BOARD from
1934 to 1935 In 1939, he presided for one
year as a justice of the U.S CIRCUIT COURT of
Appeals
Biddle was solicitor general of the United
States in 1940, and the following year he became
U.S attorney general for a three-year period
From 1945 to 1946, he presided as a U.S judge
at the NUREMBERG TRIALS of Nazi war criminals
He died October 4, 1968, in Hyannis,
Massa-chusetts
CROSS REFERENCE
Nuremberg Trials.
BIFURCATED TRIAL
One judicial proceeding that is divided into two
stages in which different issues are addressed
separately by the court
A common example of a bifurcated trial is
one in which the question of liability in a
PERSONAL INJURY case is tried separately from
and prior to a trial on the amount of damages
to be awarded if liability is found A bifurcated
trial in such a case is advantageous because
if the DEFENDANT is not found liable, there is
no need to spend the money or time in the
presentation of proof and WITNESSES on the
issue of damages
In CRIMINAL PROCEDURE, a bifurcated trial is
useful where the issues of sanity and guilt or
guilt and punishment must be decided
BIGAMY
See POLYGAMY
vBIGELOW, MELVILLE MADISON Melville Madison Bigelow achieved prominence
as an author, legal historian, and a founder of Boston University Law School
Bigelow was born August 2, 1846, in Eaton Rapids, Michigan He was educated at the University of Michigan, where he earned a bachelor of arts degree in 1866, a bachelor of laws degree in 1868, and a master of arts degree
in 1871 He also received a master of arts degree and a doctor of philosophy degree from Harvard in 1879 Two doctor of laws degrees were bestowed upon him, from Northwestern
Francis Beverly Biddle 1886–1968
1886 Born,
Paris, France
1914–18 World War I
1968 Died, Hyannis, Mass.
1915 Formed law firm of Biddle, Paul and Jayne
1939–45 World War II
1945–46 Presided as U.S judge
at the Nuremberg war crimes trials
1950–53 Korean War
1950-53 Served as chair of Americans for Democratic Action
1961 Justice
Holmes, Natural Law, and the Supreme Court
published
1961–73 Vietnam War
1900
◆
1934–35 Served as chair of the National Labor Relations Board
1941 Confirmed as U.S.
attorney general
Francis Beverly Biddle.
LIBRARY OF CONGRESS
THE TOP IS RIGHT ONLY WHEN IT PROCEEDS FROM
SUPPORT ALL THE
—MELVILLE BIGELOW