Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P19 pptx

In 1905 the National Board of Fire Examiners, the predecessor to the American Insurance Association, approved the first National Building Code, which was designed to be used as model for

state’sPOLICE POWERto prescribe regulations that promote the health, peace, morals, education, and good order of the people The state’s police power, said the Virginia high court, gives the state legislature authority to make laws that spur industrial growth, develop resources, and add to Virginia’s wealth and prosperity

When the case reached the U.S Supreme Court, Chief Justice WILLIAM HOWARD TAFT

assigned the job of writing the opinion to Associate Justice Oliver Wendell Holmes Jr., then 86-years old Holmes began his opinion by detailing the procedural safeguards that were afforded Buck, though neither Buck nor her representative had taken issue with them

Holmes noted that Buck had received notice

of the superintendent’s petition for sterilization, Buck was given the opportunity to appear at a hearing where the propriety of her sterilization was determined based on the evidence pre-sented, and Buck had the right toAPPEALall the way to the highest court in the United States

“There can be no doubt,” Holmes concluded,

“that so far as procedure is concerned, the rights

of the patient[we]re most carefully considered.”

Holmes next addressed Buck’s substantive due process claim that she had a constitutional liberty to procreate “Carrie Buck is a feeble-minded white woman She is the daughter

of a feeble-minded mother and the mother

of an illegitimate feeble-minded child,” Holmes wrote Then Holmes, a Civil War veteran, compared Buck’s sacrifice of procreative free-dom to the sacrifice other U.S citizens make when called into military duty for their county:

“We have seen more than once that the public welfare may call upon the best citizens for their lives It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to

be such by those concerned, in order to prevent our being swamped with incompetence.”

Noting that once sterilized, Buck could be released from the institution to become a pro-ductive member of society, Holmes reflected on what he thought to be the wider benefits of the Virginia sterilization law: “It is better for the entire world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind The principle that sustains compulsory vaccination is broad enough to cover cutting

the Fallopian tubes Three generations of imbeciles are enough.”

As to the equal protection argument, Holmes said that “so far as the [institution’s] operations enable those who otherwise must be kept confined to be returned to the world, and thus open the ASYLUM to others, the equality aimed at will be more nearly reached.”

Seven justices joined Holmes’s majority opinion upholding the Virginia sterilization law Only Associate Justice PIERCE BUTLER dis-sented, but he did so without filing an opinion The dissenting voices of history have been much louder

Historians and legal scholars have criticized Holmes’s opinion for being unenlightened and unduly harsh, pointing to portions of the opinion where Holmes assumed that disabled persons were not among the“best citizens,” that the “degenerate offspring” of “feeble-minded” persons would either become criminals or starve, and that unless such persons were sterilized society would become swamped by incompetence The Supreme Court itself has since rendered several opinions that have all but expressly abrogated Holmes’s opinion in Buck, including one opinion that overturned a forced sterilization law on grounds that “[m]arriage and procreation are fundamental to the very existence and survival of the race” (Skinner v Oklahoma ex rel Williamson, 316 U.S 535, 62 S.Ct 1110, 86 L.Ed 1655 [1942])

In Holmes’s defense, other historians and scholars have pointed out that the Virginia sterilization law was written by a democratically elected state legislature and upheld by three separate courts They also note that compulsory sterilization was part of the Eugenics Movement,

a popular but paternalistic reform movement that was based on the premise that the“lower classes” were too ignorant to practice BIRTH CONTROL or otherwise take care of themselves and that eradicating “feeble-minded” persons from the population was humane

Scholars on both sides of the historical debate acknowledge that Holmes personally was

an enthusiast for population control devices but question why Holmes’s opinion in Buck v Bell could not have been as prescient as his opinions

on other subjects like the FIRST AMENDMENT, where his articulation and application of the

“clear-and-present-danger” test revolutionized free speech jurisprudence In the final analysis,

168 BUCK V BELL

Buck v Bell serves as a striking counter example

to Holmes’s supporters who like to remember

the former associate justice as an unyielding

liberal champion of individual rights

FURTHER READINGS

Berry, Roberta M 1998 “From Involuntary Sterilization to

Genetic Enhancement: The Unsettled Legacy of Buck v.

Bell.” Notre Dame Journal of Law, Ethics & Public Policy

12 (summer).

Cynkar, Robert J 1981 “Buck v Bell: ‘Felt Necessities’ v.

Fundamental Values? ” Columbia Law Review 81

(November).

Estacio, Richard A 1988 “Sterilization of the Mentally

Disabled in Pennsylvania: Three Generations without

Legislative Guidance Are Enough ” Dickinson Law

Review 92 (winter).

Leslie-Miller, Jana 1997 “From Bell to Bell: Responsible

Reproduction in the Twentieth Century ” Maryland

Journal of Contemporary Legal Issues 8 (spring-summer).

Lombardo, Paul A 2008 “Three Generations, No Imbeciles:

New Light on Buck v Bell ” Baltimore: Johns Hopkins.

Mahowald, Mary B 2003 “Aren’t We All Eugenicists?”

Florida State Univ Law Review 30 (winter).

CROSS REFERENCES

Civil Rights; Due Process of Law; Equal Protection;

Fourteenth Amendment; Police Power; Sterilization.

BUGGERY

The criminal offense of anal or oral copulation by

penetration of the male organ into the anus or

mouth of another person of either sex or copulation

between members of either sex with an animal

Buggery is historically referred to as a“crime

against nature.” It is an offense under both

COMMON LAWand statutes Although prosecution

for buggery is rare, the punishment upon

conviction can be a fine,IMPRISONMENT, or both

The term is often used interchangeably with

SODOMY

BUILDING AND LOAN ASSOCIATION

An organization that exists to accumulate a fund,

composed of subscriptions and savings of its

members, to help facilitate the purchase or

construction of real estate by such members by

lending them the necessary funds

CROSS REFERENCE

Savings and Loan Association.

BUILDING CODES

A series of ordinances enacted by a state or local

governmental entity, establishing minimum

requirements that must be met in the construction and maintenance of buildings

Building codes have been used by govern-mental units for centuries to ensure that buildings remain safe and sanitary Early settlements in the United States drafted codes for such purposes as restrictions on the use of wooden chimneys to prevent fire The early codes were usually only a few sentences in length, specifying narrow restrictions in con-struction

In the early twenty-first century, home and business construction has become a process governed by a complex series of rules A building code is usually not one document, but rather it

is usually a series of documents setting forth requirements for several aspects of construction, such as gas, mechanics, electricity, fire-alarm systems, and plumbing Building codes generally regulate all aspects of a construction project, including the structural design of a building, sanitation facilities, environmental control, fire prevention, ventilation, light, materials used for the building, and conservation measures State and local governmental entities are empowered

to enact building codes as part of their police powers under theTENTH AMENDMENTto the federal Constitution That amendment has been inter-preted to allow the states to enact legislation designed to protect public health, welfare, and safety

The development of modern building codes began in the early twentieth century Residents who lived in tenement houses during that time began a movement that demanded basic sanitation in their housing Insurance compa-nies also advocated the use of safety standards, due to the potential limitations on theLIABILITY

of these companies In 1905 the National Board

of Fire Examiners, the predecessor to the American Insurance Association, approved the first National Building Code, which was designed to be used as model for state and local governmental units to use when drafting their own building codes This model code proved very popular among legislators because

it provided a respected and comprehensive source for technical construction requirements without the burden and expense of researching and drafting a building code from scratch

During the NEW DEALera of the 1930s, the federal government sought to modernize the system of housing in the United States, and

BUILDING CODES 169

the use of building codes to ensure safety and sanitation became widespread Studies during the late 1960s and early 1970s indicated that the vast majority of cities had adopted a building code of some form As the use of building codes became more prevalent, the actual codes themselves became much more comprehensive and complex Through the 1970s, the majority

of building codes were enacted at the local level

A number of model building codes were developed during the second half of the twentieth century By the 1990s four major building codes were produced, including the National Building Code, by the American Insurance Association (AIA); the Basic/National Building Code (sometimes called the BOCA Code), by the Building Officials Conference of America (BOCA); the Southern Standards Building Code, by the Southern Building Code Congress International, Inc (SBCCI); and the Uniform Building Code, by the International Congress of Building Officials (ICBO) Most of these various organizations were formed during the first half of the twentieth century by code enforcement officials who wanted to provide a forum whereby they could exchange ideas about the implementation of building codes

Since 1990, roughly half of the states have enacted legislation providing construction stan-dards on a statewide basis The states that enacted these laws generally have done so in order to provide uniformity in building regulations across the state, and also to ensure that building laws protected all of the citizens in the state equally

Local governments have retained much of the responsibility for the actual implementation of building regulations in these states It is not uncommon for a state to draft statutes that govern buildings on a general level, while the local units of the state enact more specific regulations to apply to that locality Local building codes often remain uniform because these local governments typically rely upon one

of the available model building codes

The various associations representing code enforcement officials have formed broader associations for the purposes of collaboration

In 1972, BOCA, SBCII, and ICBO formed the Council of American Building Officials (CABO), which has successfully drafted such model codes

as the CABO One and Two Family Dwelling Code and the CABO Model Energy Code In

1994, the three major model code organizations

formed the International Code Council (ICC), which has produced several international model codes As of 2003, the ICC had developed more than a dozen international model codes, includ-ing the International Buildinclud-ing Code The ICC estimates that 46 states, plus the District of Columbia, Puerto Rico, and some federal agencies, enforce or have adopted at least one of the international codes

Building codes are directly affected by ongoing research regarding the performance of products, materials, or construction methods Industry experts develop standards, which are documents that contain industry consensus regarding the methods by which the products, materials, or methods should be designed

or employed When an organization drafts a model building code, it typically refers to these standards in the text of the code Because the standards are national in scope, the reference of these standards ensures that a local building code requires constructors to meet minimum national standards concerning details like safety and performance

Few question that houses and other buildings are now designed to be much safer and more sanitary than were buildings constructed a century or longer ago, primarily as a result of the implementation of the various building codes throughout the United States However, some commentators have noted that the requirements

of these codes have caused construction prices to rise steadily, which in turn causes the costs of housing and other building usage to rise as well Moreover, some critics maintain that the process

of developing building codes is often as much

of a process of negotiation between trade groups who are protecting their own interests as it is a completely scientific process

Those who are involved in the drafting and implementation of building codes counter that building codes are designed with the health and safety of the public in mind Results of testing performed during the development of standards are often readily available for inspection, so if questions of reliability arise, they often can

be answered through a review of these testing procedures Moreover, supporters note that state and local governmental entities are not bound to adopt the model building codes, and if

a governmental unit disagrees with a provision

in a model code, it is free to replace that pro-vision with a requirement of its own creation

170 BUILDING CODES

Accordingly, if a member of the public disagrees

with a particular requirement, he or she

generally may raise this issue with the

appropri-ate governing body that decides whether a code

or code provision should be adopted

FURTHER READINGS

Council of American Building Officials 2004 An

Introduc-tion to Model Codes Falls Church, VA: Council of

American Building Officials.

Kelly, Eric Damian 1996 “Fair Housing, Good Housing or

Expensive Housing? Are Building Codes Part of the

Problem or Part of the Solution?” John Marshall Law

Review 29.

Turner, Michael D 2001 “Paradigms, Pigeonholes, and

Precedent: Reflections on Regulatory Control of

Resi-dential Construction ” Whittier Law Review 23, no 3.

BUILDING LINE

A line that a municipal corporation establishes,

beyond which no building may extend to ensure

that its streets will appear uniform

A building line is also known as the “set

back” requirement

BUILDING OFFICIALS AND CODE

ADMINISTRATORS INTERNATIONAL

The Building Officials and Code Administrators

International (BOCA) is an association of

pro-fessionals employed in the establishment and

enforcement of BUILDING CODES, which are the

rules and regulations that govern the design and

construction of buildings BOCA encourages

cities and states to adopt uniform building

codes, and promotes competence and

profes-sionalism in the enforcement of those codes

The organization was established in 1915 by

building officials from nine states and Canada

Their purpose was to provide a forum for the

exchange of knowledge and ideas about

build-ing safety and construction regulation In 1950,

BOCA published the BOCA Basic Building Code

This was the organization’s first model code

Within one year, the BOCA code had been

adopted by fifty cities

BOCA currently publishes a series of books

called the BOCA National Codes, which contain

detailed standards for all aspects of building

construction The section on stairways, for

example, precisely describes the acceptable

height, depth, and width of steps, and the

proper placement and configuration of

hand-rails necessary to ensure safety and ease of use

Separate volumes cover general construction,

mechanical systems, plumbing, fire prevention, energy conservation, and other areas

The codes published by BOCA do not in themselves have the force of law They can be enforced only when they have been adopted by cities, states, or other government bodies with the authority to issue or withhold building permits A city or state is free to adopt the BOCA codes in whole or in part

BOCA’s codes have been adopted by many states and cities in the eastern and midwestern United States Other professional associations perform a similar function in other parts of the country, and publish their own building codes:

the International Conference of Building Offi-cials serves western states and publishes the Uniform Building Code, and the Southern Building Code Congress serves southern states and publishes the Standard Building Code The three regional organizations are working to-gether toward creating a single model code for the United States

The publication of the codes is BOCA’s most important function The organization also publishes manuals, textbooks, and periodicals for its members In addition, BOCA continually develops its model code to keep it up-to-date It conducts regular training and education pro-grams for its members and provides consulta-tion services for local governments BOCA disseminates information on the quality and acceptability of building materials and systems

as well as on new construction techniques

BOCA’s membership consists largely of cities, towns, and government agencies These

“government members” are represented by

Contractors, manufacturers, architects, and engineers must follow the recommendations

of BOCA when building in a municipality that has adopted BOCA’s codes.

AP IMAGES BUILDING OFFICIALS AND CODE ADMINISTRATORS INTERNATIONAL 171

individual officials who administer rules and regulations on construction, fire safety, property maintenance, development, and land use A typical official of this kind is a building inspector with duties to examine building plans and make on-site inspections during construc-tion Contractors, manufacturers, and people in the architectural and engineering professions may also be members of BOCA

BOCA is funded by the annual dues of its members and through the sale of its publica-tions It is based in Country Club Hills, Illinois,

a suburb of Chicago

FURTHER READINGS

“Code Groups to Study Common Format.” 1991 Building Design & Construction (November 1).

Harkness, Albert 1995 “Building Codes: A Historical Perspective ” Building Official and Code Administrator Magazine (March/April).

International Code Council “Join ICC” Birmingham, AL: ICC Available online at http://www.iccsafe.org/

membership/join.html; website home page: http://

www.iccsafe.org (accessed July 10, 2009).

BULK TRANSFER

A sale of all or most of the materials, supplies, merchandise, or other inventory of a business at one time that is not normally done in the ordinary course of the seller’s business

Bulk transfers, commonly called bulk sales, have, in the past, been governed by individual state laws, generally called Bulk Sales Acts, which imposed certain requirements on such transfers These acts were aimed at preventing a seller from secretly selling his or her business and absconding with the proceeds in order to avoid the repayment of any outstanding debts

These laws have been superseded in most states

by Article 6 of the UNIFORM COMMERCIAL CODE

(UCC), which shares the same purpose but establishes uniform requirements to simplify commercial transactions A prospective buyer of

a business must obtain a list of the creditors of the seller and notify them in advance of the sale

so they can take steps to protect themselves against the seller’s possible default on his or her debts Failure of a bulk transfer to comply with the UCC neither makes the transfer void nor destroys the creditors’ rights to repayment

Depending upon the jurisdiction, the buyer may become personally liable to the seller’s creditors up to the value of the assets purchased

or the property sold may be levied upon by the creditors for the outstanding debts

A bulk transfer is not the same as a secured transaction

BULLETIN

A printing of public notices and announcements that discloses the progress of matters affecting the general public and which usually includes provi-sions for public comment A summarized report of

a newsworthy item for immediate release to the public The official publication of an association, business, or institution

BURDEN OF GOING FORWARD The onus on a party to refute or to explain evidence presented in a case

The burden of going forward, also called the burden of producing evidence, burden of pro-duction, or the burden of proceeding, requires a party in a lawsuit to refute or explain each item of evidence introduced that damages or discredits his or her position in the action, as a trial progresses Suppose a person is charged with the possession of stolen goods After the prosecution has introduced evidence of the defendant’s possession of such goods, the defense bears the burden of refuting or explaining the evidence

If the evidence appears unfavorable for the prosecution, it has the burden of going forward

to produce more evidence to bolster its claim that theDEFENDANTcommitted the crime The failure

to produce more evidence may result in the judge’s dismissing the charges against the defen-dant If the prosecution produces such evidence,

it shifts the burden of production back to the defendant, who then must refute the additional evidence

The burden of going forward also shifts during a civil proceeding It shifts to the defendant after the PLAINTIFFrests its case, but

it may shift even before that time In aWRONGFUL DEATHcase, for example, the plaintiff may, at a certain point in the trial, file a motion asking for

a ruling (sometimes a motion for SUMMARY JUDGMENTor a motion for aDIRECTED VERDICT) in his or her favor by maintaining that he or she has presented sufficient evidence to show that the defendant’s actions resulted in the victim’s death The burden then shifts to the defendant

to produce additional evidence to refute the plaintiff’s claim; otherwise, the judge may grant the plaintiff’s motion, thus concluding the case

in the plaintiff’s favor

172 BULK TRANSFER

BURDEN OF PERSUASION

The onus on the party with the burden of proof to

convince the trier of fact of all elements of his or

her case In a criminal case the burden of the

government to produce evidence of all the

necessary elements of the crime beyond a

reason-able doubt

The burden of persuasion is the affirmative

duty of a party to establish his or her right to

judicial relief by convincing the trier of fact, the

judge or the jury, that the facts asserted are true

and support the allegations Whereas theBURDEN

OF GOING FORWARDshifts from the prosecution to

the defense in a criminal case, or from the

PLAINTIFF to the DEFENDANT in a civil case, as

evidence is presented and disproved, the burden

of persuasion remains with the plaintiff or the

prosecution until the case is concluded The

phrase burden of persuasion is often used

inter-changeably with the phraseBURDEN OF PROOF

The burden of proof varies depending on

whether the proceeding is criminal or civil In a

criminal case, the burden of proof required of

the state or government will be satisfied by

evidence that demonstrates “beyond a

reason-able doubt” that the defendant has committed

the crime Proof BEYOND A REASONABLE DOUBT

does not require that the proof be so clear that

no possibility of error can exist; no criminal

prosecution would ever prevail if that were the

standard On the other hand, REASONABLE DOUBT

will be found to exist (and the defendant found

not guilty) if the evidence produced only

demonstrates that it is slightly more probable

that the defendant committed the crime than

that she or he did not The reasonable doubt

standard has been defined to mean that the

evidence must be so conclusive and complete

that all reasonable doubts are removed

In a civil matter, a plaintiff is required to

establish his or her case by“a preponderance of

the evidence.” A preponderance of the evidence

is a body of evidence that is of greater weight or

is more convincing than the evidence offered in

opposition—evidence that as a whole shows

that the facts asserted by the plaintiff and sought

to be proved are more probable than not

Another burden of proof applied in some

matters is that the evidence must be “clear and

convincing.” This standard of proof falls

somewhere between the civil

preponderance-of-the-evidence standard and the criminal

beyond-a-reasonable-doubt standard Clear

and convincing evidence requires the trier of fact to have a “firm belief” that the facts have been established The clear-and-convincing standard, though not used nearly as often as the other two standards, has been applied to some civil cases, including suits seeking the reformation of a contract In addition, the

SUPREME COURT OF THE UNITED STATEShas held that the clear-and-convincing standard is the con-stitutionally required burden of proof in a civil commitment proceeding (Addington v Texas,

441 U.S 418, 99 S Ct 1804, 60 L Ed 2d 323 [1979])

FURTHER READINGS Johnson, Calvin H 1997 “Current and Quotable: IRS Restructuring: Burden of Proof vs Burden of Persua-sion ” Tax Notes 77 (November 3).

Rothstein, Paul F and Myrna S Raeder 2007 Evidence in a Nutshell 5th ed Eagan, MN: West.

Sprung, Marshall S 1996 “Taking Sides: The Burden of Proof Switch ” New York Univ Law Review 71 (November).

Stratton, Sheryl 1998 “Burden of Proof Shift—Making Sense

of a Political Provision ” Tax Notes 80 (August 24).

BURDEN OF PLEADING The duty of a party to plead a matter to be heard

in a lawsuit The onus on the defendant to introduce or raise the defense for consideration in the lawsuit This concept is also referred to as burden of allegation

ThePLEADINGburden concerns what a party must put in his or her pleading when a legal proceeding is first instituted In a criminal proceeding, this initial pleading is an indictment

or information, which alleges that a crime was committed In a MURDERcase, for instance, the

PROSECUTORmust plead that theDEFENDANTkilled the victim The prosecution thus has the burden

of pleading on the issue of whether the defendant killed the victim On other issues in the case, the burden of pleading may shift to the defendant For example, if the defendant claims that she or he is insane and thus not responsible for the crime, the defendant has the burden of pleading insanity

In a civil matter, the initial pleading is a complaint, which initiates a lawsuit For in-stance, in a NEGLIGENCEaction, the PLAINTIFFhas the burden of pleading that the defendant was negligent and that the plaintiff has been injured

or damaged by the actions of the defendant

Likewise, in a contract claim, the plaintiff must

ALLEGE that a contract existed and that the

BURDEN OF PLEADING 173

defendant breached the contract Failure to meet the pleading burden can result in dismissal

of the claim

CROSS REFERENCES Burden of Proof; Insanity Defense.

BURDEN OF PROOF

A duty placed upon a civil or criminal defendant

to prove or disprove a disputed fact

Burden of proof can define the duty placed upon a party to prove or disprove a disputed fact, or it can define which party bears this burden In criminal cases, the burden of proof is placed on the prosecution, who must demon-strate that theDEFENDANT is guilty before a jury may convict him or her But in some jurisdic-tion, the defendant has the burden of establish-ing the existence of certain facts that give rise to

a defense, such as the insanity PLEA In civil cases, thePLAINTIFFis normally charged with the burden of proof, but the defendant can be required to establish certain defenses

Burden of proof can also define theBURDEN

OF PERSUASION, or the quantum of proof by which the party with the burden of proof must establish or refute a disputed factual issue In criminal cases, the prosecution must prove the defendant’s guiltBEYOND A REASONABLE DOUBT Judges explain the REASONABLE DOUBT stan-dard to jurors in a number of ways Federal jury instructions provide that proof beyond a reasonable doubt is“proof of such a convincing character that a REASONABLE PERSON would not hesitate to act upon it in the most important of his own affairs.” State judges typically describe the standard by telling jurors that they possess a reasonable doubt as to the defendant’s guilt if, based on all the evidence in the case, they would

be uncomfortable with a criminal conviction In giving the reasonable doubt instruction, judges regularly remind jurors that a criminal convic-tion imposes a variety of hardships on a defendant, including public humiliation, INCAR-CERATION, fines, and occasionally theFORFEITUREof property Reasonable doubt is the highest stan-dard of proof used in any judicial proceeding

Reasonable doubt is also a constitutionally mandated burden of proof in criminal proceed-ings The U.S Supreme Court has ruled that the Due Process Clause of theFIFTH AMENDMENTand Fourteenth Amendments to the federal consti-tution prohibit criminal defendants from being

convicted on any quantum of evidence less than proof beyond a reasonable doubt.IN RE WINSHIP,

397 U.S 358, 90 S Ct 1068, 23 L Ed 2D 368 (1970) Although the reasonable doubt standard

is not specifically mentioned anywhere in the Constitution, the Court observed that the standard is so deeply rooted in the nation’s history as to reflect the fundamental value that

“it is far worse to convict an innocent man than

to let a guilty man go free.”

In civil LITIGATION the standard of proof is either proof by a preponderance of the evidence

or proof by clear and convincing evidence Both are lower burdens of proof than beyond a reasonable doubt 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 the truth

of a disputed fact by a high probability Criminal trials employ a higher standard of proof because criminal defendants often face the deprivation of life or liberty if convicted while civil defendants generally only face an order to pay money damages if the plaintiff prevails

FURTHER READINGS Cooper, S 2003 “Human Rights and Legal Burdens of Proof ” Web Journal of Current Legal Issues 3 Available online at http://www.ca6.uscourts.gov/lib_hist/Courts/ supreme/judges/brown/hbb-bio.html; website home page: http://www.ca6.uscourts.gov (accessed August

28, 2009).

Scheibe, Benjamin D 2003 “Claim of Reverse Engineering Doesn ’t Alter Burden of Proof.” The Los Angeles Daily Journal 116 (October 2).

Twining, William and Stein, Alex, eds 1992 Evidence and Proof New York: New York Univ Press.

CROSS REFERENCES Burden of Persuasion; Due Process of Law; Evidence; Fifth Amendment; Fourteenth Amendment; Proof; Reasonable Doubt.

BUREAU OF INDIAN AFFAIRS SeeINTERIOR DEPARTMENT

BUREAUCRACY

A system of administration wherein there is a specialization of functions, objective qualifications for office, action according to the adherence to fixed rules, and a hierarchy of authority and delegated power

174 BURDEN OF PROOF

Organizations such as the armed forces or

administrative agencies are common examples

of bureaucracies

vBURGER, WARREN EARL

Warren Earl Burger was a self-made man who

rose from modest origins to become the fifteenth

chief justice of the U S Supreme Court

Burger was born September 17, 1907, in

St Paul, Minnesota, the fourth of seven children

of Charles Burger and Katharine Schnittger

Burger His father worked as a railroad cargo

inspector and traveling salesman, and the family

lived on his limited income Burger began

delivering newspapers at the age of nine to help

with family finances At Johnson High School

in St Paul, he participated in music, sports,

student government, and the student

newspa-per Princeton University offered him a partial

scholarship, but because of his family’s limited

resources, he was unable to accept it Instead, he

took EXTENSION courses through the University

of Minnesota from 1925 to 1927 and then

attended night classes at St Paul College of

Law (now WILLIAM MITCHELL College of Law)

Throughout college and law school, Burger

supported himself by working as an insurance

agent He earned his bachelor of laws degree,

magna cum laude, in 1931

Burger was admitted to the Minnesota bar in

1931, then entered private practice in St Paul

with Boyesen, Otis, and Faricy He became a

partner in 1935, and the firm was renamed

Faricy, Burger, Moore, and Costello Burger

concentrated his practice in corporate law,REAL

ESTATE, and probate law At the same time, he became involved in politics, and in 1934 he helped organize the Minnesota Young Repub-licans

Burger was rejected for military service in

WORLD WAR II because of a spinal injury and instead served on the Minnesota Emergency War Labor Board After the war he returned to his law practice and became more active in politics He had played an important part in Harold E Stassen’s successful campaigns for governor of Minnesota in 1938, 1940, and 1942, and acted as floor manager for Stassen’s pre-sidential bids at the 1948 and 1952 Republican

1925

Warren Earl Burger 1907–1995

1907 Born,

St Paul, Minn.

1914–18 World War I

1941–45 U.S.

involvement in World War II; served on the Minnesota Emergency War Labor Board

1931 Earned bachelor of laws degree from St Paul College of Law; admitted

to Minnesota bar

1935 Made partner at Boyeson, Otis and Faricy;

firm renamed Faricy, Burger, Moore and Costello

1952 Appointed assistant attorney general in the Justice Department's Civil Division

1950–53 Korean War

1961–73 Vietnam War

1956 Appointed to the U.S Court

of Appeals for the District of Columbia

1969 Nominated as chief justice of the U.S.

Supreme Court

by President Nixon

1986 Retired from the Court in order to chair the commission honoring U.S.

Constitution's bicentennial in 1987

1995 Died, Washington, D.C.

◆

Warren Burger PHOTOGRAPH BY JOSEPH LAVENBURG, NATIONAL GEOGRAPHIC COLLECTION OF THE SUPREME COURT OF THE UNITED STATES.

FREEDOM OF SPEECH CARRIES WITH IT SOME FREEDOM TO LISTEN.

—W ARREN B URGER

conventions These activities brought him to the attention of prominent Republicans In 1952 he was named assistant attorney general in charge

of the Justice Department’s Civil Division, which handled all civil cases except antitrust and landLITIGATION

Burger’s career as a JURIST began when he was appointed to the U.S Court of Appeals for the District of Columbia Circuit in 1956 He quickly established his credentials as a law-and-order judge, leading the conservative faction of the court to numerous decisions that favored police officers and prosecutors and curbed the rights of criminal defendants

Burger served on the D.C CIRCUIT COURT

until 1969 when President RICHARD M NIXON

appointed him chief justice of the Supreme Court In choosing Burger to replaceEARL WARREN, Nixon was fulfilling a campaign promise to restrain the Court, which was, according to him, favoring the criminals in U.S society Burger’s ethical record was a major consideration in his nomination, and his opposition to judicial activism (a philosophy of judicial decision-making whereby judges allow their personal views aboutPUBLIC POLICY, among other factors, to guide their decision, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent), and the expansion ofCIVIL RIGHTSand liberties made him what Nixon was looking for, a conservative antidote to the activist liberalism of theWARREN COURT

However, the swift and certain counterrev-olution that Nixon and others expected from the Burger Court never materialized Although the Court diluted some earlier liberal decisions, particularly in the area ofCRIMINAL PROCEDURE, it stopped far short of overruling them And although the Burger Court was far less sympa-thetic to the rights of criminal defendants than the Warren Court had been, it established no clear pattern of repudiating the earlier doc-trines In some areas, such as AFFIRMATIVE ACTION and desegregation, the Burger Court continued in the direction set by the Warren Court, and Burger often cast the swing vote that tipped the balance in favor of the liberals’

position The Burger Court’s decision inROE V

WADE(410 U.S 113, 93 S Ct 705, 35 L Ed 2d

147[1973]) established a constitutional right to privacy and made ABORTION legal Yet Burger refused to support a movement to give gender

classifications the same level of scrutiny used for racial discrimination When viewed as a whole, the record shows that Burger was an enigmatic and unpredictable justice but that he generally stayed the course set by his predecessor In fact, the Burger Court never directly overruled any major doctrine of the Warren years

Burger was satisfied with his reputation as a centrist.“It’s always been somewhat comforting

to know,” he once told an interviewer, “that I have been castigated by so-called liberals for being too conservative and castigated by so-called conservatives for being too liberal Pretty safe position to be in.”

Burger left his personal imprint on several important areas of the law His 1973 opinion in

MILLER V.CALIFORNIA(413 U.S 15, 93 S Ct 2607,

37 L Ed 2d 419[1973]) established the use of

“contemporary community standards” in de-termining whether material is OBSCENE He authored key decisions interpreting the free speech and free press guarantees of the FIRST AMENDMENT, including Nebraska Press Ass’n v Stuart, 427 U.S 539, 96 S Ct 2791, 49 L Ed 2d

683 (1976), a 1976 decision prohibiting pre-publication restraints to protect criminal defen-dants from negativePRETRIAL PUBLICITY Writing for the majority, Burger declared that “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.” Burger also delivered the opinion invalidating the legislative veto (I.N.S

v Chadha, 462 U.S 919, 103 S Ct 2764, 77

L Ed 2d 317[1983]), thus preventing Congress from blocking presidential action without passing a law

Burger’s most famous criminal opinion was

UNITED STATES V.NIXON, 418 U.S 683, 94 S Ct

3090, 41 L Ed 2d 1039 (1974), in which he ordered the embattled president, then deeply enmeshed in theWATERGATE scandal, to release

to Special Prosecutor LEON JAWORSKI the tape recordings that implicated the president in the Watergate cover-up Nixon’s resignation was a direct result of Burger’s ruling

One of Burger’s goals as chief justice was to modernize and streamline the courts to make them more accessible and functional, and he worked tirelessly toward that end Burger originated the idea of employing professional court administrators, implemented continuing education for judges, and improved coordi-nation between federal and state courts In

176 BURGER, WARREN EARL

addition, he was noted for his outspoken

criticism of ill-prepared litigators who use the

courts for what he called on-the-job training

Burger retired from the bench in 1986

to chair the commission honoring the two

hundredth anniversary of the signing of the

Constitution, which occurred on his eightieth

birthday, September 17, 1987 He ended his last

day on the bench without fanfare, simply

announcing that the Court had completed its

term and wouldRECESSuntil the first Monday in

October Asked about his future plans, he said,

“I have a lot of other things I want to do I

never had any ambition to be a judge I loved

practicing law If tradition didn’t prohibit it, I’d

love to go back to practicing law.” Upon his

retirement, one of his law clerks commented

that Burger’s most important legacy may be that

“he kept most of society’s problems truly in

balance.”

Burger died July 25, 1995

FURTHER READINGS

Maltz, Earl M 2000 The Chief Justiceship of Warren Burger,

1969–1986 Columbia, S.C.: Univ of South Carolina

Press.

Reske, Henry J 1995 “The Diverse Legacy of Warren

Burger ” ABA Journal 81 (August).

Significant Supreme Court Opinions of the Honorable Warren

E Burger, Chief Justice of the United States 1984.

Manila, Philippines: Philippine Bar Association.

CROSS REFERENCES

Criminal Procedure; Freedom of Speech; Freedom of the

Press; Obscenity.

BURGLARY

The criminal offense of breaking and entering a

building illegally for the purpose of committing

a crime

Burglary, at COMMON LAW, was the

trespas-sory breaking and entering of the dwelling of

another at night with an intent to commit a

FELONY therein It is an offense against

posses-sion and habitation The common-law elements

of the offense have been modified in most

jurisdictions by statutes that tend to make the

crime less restrictive

Elements of the Offense

Trespass The trespass element of the offense

signifies that it must occur without the consent

of the victim If the thief gains entry by

misrepresenting his or her identity, the element

of trespass is satisfied, as there is no consent to entry

Breaking Breaking consists of creating an opening for entry into the building It can be accomplished by removing an object that is blocking an entry or by blasting open a wall

The use of force is not required The breaking element is satisfied if access is obtained by opening a closed door or window, regardless of whether these are locked

At common law, entering through a pre-existing opening did not constitute breaking If one gained access through an open door or

Persons Arrested for Burglary a , by Sex and Age, in 2007 b

a

Defined as “breaking and entering” in many jurisdictions.

b

Numbers may not add up to 100 due to rounding.

Total: 228,846

55 years and over 1.2%

45–54 years 7.0%

Under 15 years 8.1%

15–17 years 18.8%

18–24 years 31.7%

25–44 years 33.2%

Female 14.5%

Male 85.4%

ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,

A PART OF CENGAGE LEARNING.

BURGLARY 177