CITIZENS Those who, under the Constitution and laws of the United States, or of a particular community or of a foreign country, owe allegiance and are entitled to the enjoyment of all ci
Trang 1particular fact sought to be proved The party offering circumstantial evidence argues that this series of facts, by reason and experience, is
so closely associated with the fact to be proved that the fact to be proved may be inferred simply from the existence of the circumstantial evidence
The following examples illustrate the differ-ence between direct and circumstantial evi-dence: If John testifies that he saw Tom raise a gun and fire it at Ann and that Ann then fell to the ground, John’sTESTIMONYis direct evidence that Tom shot Ann If the jury believes John’s testimony, then it must conclude that Tom did
in fact shoot Ann If, however, John testifies that
he saw Tom and Ann go into another room and that he heard Tom say to Ann that he was going
to shoot her, heard a shot, and saw Tom leave the room with a smoking gun, then John’s testimony is circumstantial evidence from which it can be inferred that Tom shot Ann
The jury must determine whether John’s testimony is credible
Circumstantial evidence is most often employed in criminal trials Many circum-stances can create inferences about an accused’s guilt in a criminal matter, including the accused’s resistance to arrest; the presence of a motive or opportunity to commit the crime; the accused’s presence at the time and place of the crime; any denials, evasions, or contradictions
on the part of the accused; and the general conduct of the accused In addition, much
SCIENTIFIC EVIDENCE is circumstantial, because it requires a jury to make a connection between the circumstance and the fact in issue For example, with fingerprint evidence, a jury must make a connection between this evidence that the accused handled some object tied to the crime and the commission of the crime itself
Books, movies, and television often perpet-uate the belief that circumstantial evidence may not be used to convict a criminal of a crime But this view is incorrect In many cases, circum-stantial evidence is the only evidence linking an accused to a crime; direct evidence may simply not exist As a result, the jury may have only circumstantial evidence to consider in deter-mining whether to convict or acquit a person charged with a crime In fact, the U.S Supreme Court has stated that“circumstantial evidence is intrinsically no different from testimonial [direct] evidence” (Holland v United States,
348 U.S 121, 75 S Ct 127, 99 L Ed 150 [1954]) Thus, the distinction between direct
and circumstantial evidence has little practical effect in the presentation or admissibility of evidence in trials
FURTHER READINGS Earley, Pete 1996 Circumstantial Evidence: Death, Life, and Justice in a Southern Town New York: Bantam Romano, John F 1999 “Prohibitions in the Use of Circumstantial Evidence: Key Tips on Gaining Strategic Advantage ” Trial Lawyer 22 (January-February).
——— 1986 Strategic Use of Circumstantial Evidence Frederick, MD: Wolters Kluwer Law & Business Shestokas, David J 2009 “Circumstantial Evidence in
an American Trial ” Suite101.com Available online at http://peacesecurity.suite101.com/article.cfm/circum stantial_evidence_in_an_american_trial; website home page: http://peacesecurity.suite101.com (accessed August 30, 2009).
CITATION
A paper commonly used in various courts—such
as a probate, matrimonial, or traffic court—that
is served upon an individual to notify him or her that he or she is required to appear at a specific time and place
Reference to a legal authority—such as a case, constitution, or treatise—where particular infor-mation may be found
Cases are published in a series of books called reporters, which are compilations of judicial decisions made in a certain court, state,
or jurisdiction Reporters are published in consecutively numbered volumes, each of which contains the most recently decided cases When the volume numbers on a set of reporters get too high, the publisher will begin a new set with
a new series of numbers
To refer to a particular case in a reporter, a designation including the volume number, the name of the reporter, and the page number is given If, for example, a case decided in the U.S Supreme Court were cited as 60 S Ct 710, the case would be in volume 60 of the Supreme
COURT REPORTER on page 710 To promote uniformity of citations, many lawyers and law students use TheBLUE BOOK: A Uniform System of Citation, commonly referred to simply as The Blue Book This manual is published jointly by law schools at Harvard, Yale, Columbia, and the University of Pennsylvania Other citation manuals have also been published
When a court issues a citation, it orders a person to appear at a certain time and place Failure by the person to adhere to the require-ments in a citation results in punishment by the court On appeal, a court may issue a citation of appeal, giving parties notice of the appeal and ordering them to appear in court Issuance of a
Trang 2citation is required in order to give an appellate
court jurisdiction over the appeal The clerk of a
court is generally required to issue a citation
Police officers also issue citations for minor
offenses, especially for traffic violations The
citation that an officer gives to a violator states
the charge and requires an appearance before
a judge on a specified date, subject to
punish-ment for failure to appear Citations issued by
police officers for minor violations are typically
only admissible for a CRIMINAL ACTION that
is based upon the violation In most
jurisdic-tions, evidence of an arrest from a citation is not
admissible in a CIVIL ACTION based upon the
same facts
CROSS REFERENCE
Legal Publishing.
CITATOR
A volume or set of volumes that is a record of the
status of cases or statutes
A citator is a guide published primarily for
use by judges and lawyers when they are in the
process of preparing such papers as judicial
decisions, briefs, or memoranda of law Its
purpose is to provide a judicial history of cases
and statutes as well as to make a note of new
cases A citator indicates whether or not the law
in a particular case has been followed, modified,
or overruled in subsequent cases
A citator is usually organized into columns
of citations Various abbreviations designate
such things as whether a case has been overruled,
superseded, or cited in the dissenting opinion
of a later case
The most well-known and commonly used
citator is Shepard’s Citations The process of
consulting this book or any other citator is
known as shepardizing a case
CITE
To notify a person of a proceeding against him or
her or to call a person forth to appear in court
To make reference to a legal authority, such as
a case, in a citation
Cases, statutes, constitutions, treatises, and
other similar authorities are cited to support a
certain view of law on an issue When writing a
legal brief, an attorney may wish to strengthen
his or her position by referring to cases that
support what he or she is saying in order to
persuade the court to make a ruling favorable
for the client
CROSS REFERENCES Precedent; Stare Decisis.
CITIZENS Those who, under the Constitution and laws of the United States, or of a particular community or of
a foreign country, owe allegiance and are entitled
to the enjoyment of all civil rights that accrue to those who qualify for that status
Neither the United States nor a state is a citizen for purposes ofDIVERSITY OF CITIZENSHIP, a phrase that is used in regard to the jurisdiction
of the federal courts, which—under Article III, Section 2, of the Constitution—empowers those courts to hear and decide cases between citizens
of different states Municipalities and other local governments, however, are deemed to be citizens
The term citizen in Article III of the Constitution, which established the federal judiciary, includes corporations; therefore, suits concerning corporations involve citizens for federal jurisdictional purposes The term citizen, however, as defined by the Fourteenth and Fifteenth Amendments, does not encompass either corporations or ALIENS Neither corpora-tions nor aliens receive the protection of the
PRIVILEGES AND IMMUNITIES Clauses of the FOUR-TEENTH AMENDMENT and Article IV, as those clauses protect only citizens
Aliens, however, are considered to be
“persons” for the purposes of the Due Process Clauses of the Fifth and Fourteenth Amend-ments and the EQUAL PROTECTION Clause of the Fourteenth Amendment In the 1982 case of
Immigrants take an oath of citizenship
in a ceremony held
on Ellis Island in New York City Naturalized citizens have all the rights of
a native-born U.S citizen with one exception: they cannot serve as president of the United States.
AP IMAGES
Trang 3Plyler v Doe, 457 U.S 202, 102 S Ct 2382, 72 L.
Ed 2d 786, the U.S Supreme Court recognized that even illegal aliens are“persons” within the Equal Protection Clause of the Fourteenth Amendment for purposes of public education
A corporation is also deemed to be a citizen for certain purposes It is a citizen of the United States and of the state under whose laws it was organized A particular state, commonly Dela-ware, is selected for incorporation because that state charges lower taxes and its laws favor businesses Once the company incorporates in the designated state, it is a citizen of that state, but it can apply in any other state for authority
to do business there
The Fourteenth Amendment to the Consti-tution provides: “All persons born or natural-ized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside….”
The important right of citizenship, whether for native-born or naturalized citizens, cannot be divested, whether as punishment for a crime or for any other reason, by the states or the federal government, including their agencies and offi-cials (see also Afroyim v Rusk, 387 U.S 253, 87
S Ct 1660, 18 L Ed 2d 757[1967]) American citizenship can be relinquished, but it cannot
be taken away unless it was procured through
FRAUDor any other unlawful action
The Fourteenth Amendment, through the inclusion of the phrase “all persons,” was specifically enacted in 1868 specifically to grant citizenship to former slaves Since 1924, it has been judicially interpreted to include American Indians U.S citizenship does not divest an Indian of tribal citizenship but, rather, coexists with it
The Fourteenth Amendment does not, however, make children who are born within the territory of the United States of foreign ambassadors, CONSULS, and military officers American citizens Such children derive their citizenship from their parents
Ordinarily, a person who is in a country other than the one of which he or she is a citizen owes to that country a type of “temporary allegiance,” which essentially is a respect for the laws of the host country, although it is not as substantial as the loyalty demanded of citizens
It requires that an alien observe the laws of the country and, in some countries, even serve in the military; it ensures the protection of the alien by the laws of the country
Ambassadors, consuls, and military officers, however, owe no allegiance to the foreign country where they are assigned, and their children are not“born within the allegiance” of
a foreign country in which they serve
Citizen of a State
The Fourteenth Amendment provides that American citizens are also citizens“of the state wherein they reside,” but U.S citizenship does not necessitate residence in a particular state Persons living abroad, for example, are citizens
of the United States but not of any state One significant legal disadvantage exists for
a person who is not a citizen of a state The Constitution provides that federal courts can hear “Controversies … between Citizens of different States.” The phrase “Citizens of different States” includes citizens of Puerto Rico, the Virgin Islands of the United States, and Guam Puerto Rico is in the First Circuit, the Virgin Islands are in the Third Circuit, and Guam, Alaska, and Hawaii are in the Ninth Circuit A person who is not a resident of a state
or designated area, even if he or she is a U.S citizen, cannot satisfy the diversity of citizenship requirement and therefore cannot bring an action under the Diversity Clause in a federal court
American Citizenship
U.S citizenship is attained either by birth or
by NATURALIZATION, the legal procedure that a qualified person must satisfy in order to be accepted as a citizen
Federal law provides that those who are born in any of the 50 states, Puerto Rico, the former Panama Canal Zone, the Virgin Islands
of the United States, and Guam are all native-born citizens, including the children of an American Indian, Eskimo, Aleutian, or any other tribal member
Persons born in outlying possessions of the United States, such as Wake Island or Midway Island, and their children are called nationals They owe allegiance to the United States and enjoy some rights The term national denotes everyone who owes allegiance to the country, including citizens, but not every national possesses all of the rights of a citizen
A person born beyond the geographical boundaries of the United States and its outlying possessions, of parents who are both U.S
Trang 4citizens, is a national and a citizen of the United
States at birth if one parent had a residence in
the United States or one of its outlying
possessions prior to the birth of such person
If only one parent is a citizen and the other is a
national—but not a citizen—the parent who is
a citizen must have been physically present in
the United States or one of its outlying
possessions for a continuous period of one year
prior to the birth of the child in order for the
child to be a national and a citizen of the United
States at birth
A person born out of wedlock in a foreign
country acquires at birth American citizenship
if the mother was a citizen at the time of such
person’s birth and had formerly been physically
present in the United States or one of its
outlying possessions for a continuous period of
one year preceding the birth
Derivative Citizenship
A child born in a foreign country can become a
U.S citizen if his or her parents become
naturalized U.S citizens If the child is brought
to the United States before becoming an adult,
and the child’s parents become citizens, then
the child is entitled to claim U.S citizenship
when he or she becomes an adult Although his
or her birth certificate will still reflect a
foreign-born status, a person in this situation can obtain
a certificate of nationality by filing an
applica-tion with the SECRETARY OF STATE
Rights of U.S Citizens
Everyone within the jurisdiction of the United
States is protected by most of the guarantees
and safeguards of the Constitution A U.S
citizen traveling abroad retains the protection of
the United States If property of an individual is
stolen while he or she is in a foreign country,
the United States consul can lend him or her
money to return to the United States U.S
citizens, of course, must observe and obey the
laws of other countries while they are visiting,
but if a U.S citizen is arrested, a representative
from the U.S ambassador’s office can visit him
or her and inform the foreign government that
the treatment of the U.S citizen will be
scrutinized
Unlike citizens of other countries, U.S
citizens are entitled to enter into, and to depart
from, the United States, and to obtain aPASSPORT
from the government The passport certifies to
foreign nations that its holder is entitled to all of
the protection afforded by the U.S government
The right to enter and leave the United States is
so fundamental, however, that a citizen cannot
be prevented from coming into the United States merely because he or she has no passport
Even if someone departs from the country without obtaining a passport, knowing that he
or she should have done so, he or she must be permitted to enter upon returning if a birth certificate or expired passport is presented, or if the person takes an OATH as to his or her citizenship
However, the U.S government can prohibit its citizens from traveling in designated coun-tries that are hostile to the U.S and perilous to U.S citizens The passport of a person who ignores these restrictions can be revoked, and such a traveler can be denied protection by the government
A naturalized citizen has all of the rights of
a native-born U.S citizen but one: He or she can never be PRESIDENT OF THE UNITED STATES Article II of the Constitution provides: “No person except a natural-born Citizen, or a Citizen of the United States, at the time of Adoption of this Constitution, shall be eligible
to the Office of President.”
Obligations of Citizenship
The most fundamental duty of a citizen is to be loyal to the United States Allegiance is not an unquestioning acceptance, but a general faith in the U.S system In times of national emergency, citizens can be required to defend the country, through military service or alternative service such as employment in a hospital
Issues surrounding the duties of citizens often arise in the same context as the freedoms enjoyed by citizens of the United States In one
of his more famous speeches, The Duties of American Citizenship, President THEODORE ROO-SEVELT said, “It ought to be axiomatic in this country that every man must devote a reason-able share of his time to doing his duty in the Political life of the community No man has the right to shirk his political duties under whatever
PLEAof pleasure or business.…”
In the wake of theSEPTEMBER11TH ATTACKSin
2001, the case against one American citizen, John Philip Walker Lindh, demonstrated the attitude that the U.S government takes against nationals who breach their duty of citizenship
Lindh, also known by the Islamic names
Trang 5Suleyman al-Faris and Abdul Hamid, as well as the nickname “the American Taliban,” con-verted to Islam in 1997 After visiting such countries as Yemen and Pakistan to study Islam
at various times from 1997 to 2000, Lindh began training with the terrorist organization al-Qaeda in 2001 Both before and after the terrorist attacks in September 2001, Lindh served the Taliban regime of Afghanistan in an ongoing conflict with the Northern Alliance in northeastern Afghanistan After his groups retreated and eventually surrendered, Lindh was captured by Northern Alliance groups in November 2001 He was eventually turned over
to the U.S military, who returned him to the United States on January 23, 2002
In the case of United States v Lindh, 198 F
Supp 2d 739 (E.D Va 2002), Lindh was indicted on ten criminal charges, including
CONSPIRACYtoMURDERU.S nationals, contribut-ing to and conspircontribut-ing to contribute to al-Qaeda, and using and carrying firearms and other destructive devices during crimes of violence
Lindh pled guilty in July 2002 to a count of supplying services to the Taliban government and received a 20-year sentence
Surrender of Citizenship
Unlike some nations, the United States permits
EXPATRIATION, the voluntary relinquishment of one’s citizenship A U.S citizen can lose his or her citizenship by declaring that he or she no longer wishes to be a citizen or to owe allegiance
to the United States, or by performing a
VOLUNTARY ACT that constitutes the surrender
of citizenship, as prescribed by law
The test of whether an abandonment of citizenship is voluntary depends on whether the person’s acts were of his or her own choice and pertained to allegiance to the United States If they were, federal law provides that one has intentionally and voluntarily surrendered his or her right to American citizenship
A loss of citizenship can occur by serving in the military of another nation; serving as a public official in a foreign country that requires
an oath of allegiance to that country; and attempting to overthrow the U.S government, which is established by a conviction for the crime
Conduct that might be construed as a renunciation of citizenship sometimes is insuf-ficient to prove voluntary expatriation If a
person merely enjoys the benefits that are available in another country, the surrender of his or her U.S citizenship is not necessarily established
The U.S Supreme Court has recognized the power of Congress to specify conduct that constitutes expatriation, but the right to citi-zenship is so substantial that such actions must
be closely related to a conspicuous movement of allegiance away from the United States Al-though some courts have ruled that Congress never is empowered to deprive the native born
of citizenship, this view is not in accordance with current law
Conviction of a crime can result in a partial deprivation of rights of citizenship Prior to the twentieth century under English and American
COMMON LAW, convicts actually lost their citizen-ship, which was known in some jurisdictions as
CIVIL DEATH In the early twenty-first century, however, only some rights are divested, even if the applicable law is called“loss of citizenship.”
A state is empowered to deny someone the right to vote after his or her conviction of a
FELONYor an“infamous crime,” such asBRIBERY
orPERJURY This denial of a right of citizenship can remain in effect until the completion of the sentence, including periods ofPAROLE, or it might
be permanent APARDONfrom the president or a governor can restore such rights, however Some statutes even authorize the courts to restore rights of citizenship upon proof of the rehabili-tation of the former prisoner
International Law
Questions concerning whether someone is a citizen of one country or another are generally resolved by treaty, a compact formed between two or more nations with respect to matters pertaining to the public welfare pursuant to principles of INTERNATIONAL LAW One person might qualify for DUAL NATIONALITY, that is, citizenship in more than one nation, if he or she can satisfy the citizenship requirements of different countries
International law also recognizes a rule labeled the“law of the flag,” which determines the citizenship of persons born on ships The rule is responsive to the citizenship laws of different nations and to treaties that are rewritten to fulfill new political conditions
A child born of U.S parents on a vessel anywhere in the world is a U.S citizen A child
Trang 6born in U.S waters on a foreign ship is a citizen
of that foreign nation when his or her parents
are citizens of that country If his or her parents
are from a different country, provisions of treaty
or international law apply A child born on the
high seas on a foreign vessel of parents from
that same country assumes that country’s
citizenship and not the citizenship of his or
her destination
FURTHER READINGS
Aleinikoff, T Alexander, et al, eds 2001 Citizenship Today:
Global Perspectives and Practices Washington, D.C.:
Carnegie Endowment for International Peace.
Doak, Robin 2003 Citizenship New York: Heinemann
Raintree.
Lister, Ruth 2003 Citizenship: Feminist Perspective
Washing-ton Square, NY: New York Univ Press.
Noorani, A.G 2002 Citizens’ Rights, Judges and State
Accountability New York: Oxford Univ Press.
CITIZENS FOR DECENCY
THROUGH LAW
Citizens for Decency through Law (CDL), one
of the first major anti-pornography
organiza-tions in the United States, was founded in 1956
by lawyer and future financier Charles H
Keating Jr., after his daughter was sexually
attacked in the 1950s Believing that
PORNOGRA-PHY causes violence and CHILD ABUSE, CDL
members have endeavored to stop the sale of
pornographic material and close movie
theaters that show sexually explicit movies by
pressuring politicians and judges into enforcing
OBSCENITYlaws
CDL has provided legal advice to cities
investigating dealers in sexually explicit motion
pictures, magazines, and mail-order
publica-tions CDL attorneys have concentrated on
helping the police and prosecutors to prepare
trials and appeals in obscenity cases, prepare
TESTIMONYbefore local, state, and federal
legisla-tive committees, and draft model legislation
Between 1963 and 1981, CDL sponsored or
wroteAMICUS CURIAE(friend-of-the-court) briefs
for 27 obscenity cases reviewed by the U.S
Supreme Court Of those cases, 37 percent had
rulings favorable to CDL’s views In addition to
providing direct, personal assistance in certain
important cases, CDL’s legal staff have prepared
and mailed comprehensive analyses of
develop-ments in obscenity law to prosecutors around
the United States The group has also sought to
educate the public on the extent of the traffic in
OBSCENEmaterials
Keating, a staunch Roman Catholic who originally called his group Citizens for Decent Literature, is perhaps best known as a central figure in a scandal involving the LincolnSAVINGS AND LOAN ASSOCIATION Between 1989 and 1993
he was charged with and convicted on numer-ous civil RACKETEERING and FRAUD charges and sentenced to prison CDL as a national organization splintered after the scandal, but local chapters remain active in some cities and states
Keating began his career as aPROSECUTORin Cincinnati—a conservative city that now prides itself on being a national center for anti-pornography efforts—and first sought to rid newsstands of sexually explicit materials in the 1950s when he prosecuted a local candy store accused of selling obscene publications By
1969 his zealous battles against pornography had earned him an appointment by RICHARD M
NIXON to the Presidential Commission on Obscenity and Pornography In 1970 Keating filed a lawsuit that delayed release of a report by the commission that recommended repeal of all adult CENSORSHIPlaws
Over the years, CDL battled foes ranging from Larry Flynt, publisher of Hustler magazine,
to Pacific Bell, which allowed indiscriminate access to dial-a-porn messages A long-running skirmish in the 1980s involved an adult movie theater in an Orange County, California, shopping center that Lincoln Savings and Loan sued after the city of Santa Ana failed to close the theater Lincoln’s lawsuit charged that the theater, operated by Mitchell Brothers, attracted
“criminal elements, ORGANIZED CRIME and per-sons who practice sexual deviations, such as homosexuals, lesbians, voyeurs, prostitutes, pedophiles, sadists, masochists, rapists, etc., into the area.” (After the Lincoln bank failed, the federal government took over the institu-tion, and the lawsuit was dropped.)
During the administrations of Presidents
RONALD REAGANand GEORGE HERBERT WALKER BUSH
lawyers recruited from CDL took part in a controversial and lengthy prosecution of busi-nesses involved with obscene materials In November 1993 the U.S JUSTICE DEPARTMENT
dropped this prosecution tactic, which involved threatening businesses with indictments in numerous jurisdictions in order to extract agreements to stop distribution of the materials
The theory behind the strategy was that the mere expense of defending themselves in so many
Trang 7places would encourage PLEA bargains by the businesses Among the targets of these prosecu-tions was Adam and Eve, a large distributor of sexually explicit films, magazines, and books
A number of federal judges and civil liberties organizations denounced the multidistrict tactic
as a form of harassment, sweeping in nonob-scene materials protected by theFIRST AMENDMENT
in addition to unprotected obscenity
CDL often worked with other organizations, including the National Religious Alliance against Pornography; Morality in Media; the Moral Majority; Citizens against Pornography; the American Family Association; and the National Federation for Decency It has also been aligned with smaller compatriot groups such as Citizens for Legislation against Decadence in Portland, Oregon; Women against Pornography in New York; Feminists against Pornography in Chicago and in Washington, D.C.; and the feminist-sponsored Pornography Resource Center in Minneapolis CDL opponents include the AMERI-CAN CIVIL LIBERTIES UNIONand other civil liberties organizations as well as publishers of pornogra-phy, such as Oui magazine, which in 1975 dubbed Keating the number one enemy of pornography
FURTHER READINGS Bessler, John D 1994 “The Public Interest and the Unconstitutionality of Private Prosecutors ” Arkansas Law Review 47.
Epstein, Lee 1993 “Interest Group Litigation during the Rehnquist Era ” Journal of Law and Politics 9 (summer).
Harlow, Carol 1992 Pressure through Law New York:
Routledge.
CIVIL ACTION
A lawsuit brought to enforce, redress, or protect rights of private litigants—the plaintiffs and the defendants—not a criminal proceeding
In the early 2000s, courts in the United States generally are not divided into COMMON
-LAW COURTS and equity courts because most states and the federal government have merged the procedures for law and equity into one system Now all kinds of lawsuits are simply called civil actions without the former distinc-tions of procedure in law or in equity A criminal proceeding is called a PENAL action to distinguish it from civil actions
CIVIL DEATH The forfeiture of rights and privileges of an individual who has been convicted of a serious crime
Civil death is provided for by statute in some states Most civil death statutes apply only
to offenders who have been sentenced to a life term
Civil death involves the imposition of numerous disabilities, including the denial of the privilege to vote, to hold public office, and
to obtain many job and occupational licenses
In addition, an offender cannot enter into judicially enforceable agreements, such as contracts, and may not obtain insurance and pension benefits The offender may also be deprived of any right to commence certain lawsuits in court
Successive marriages can also be affected by civil death laws The issue is whether or not the spouse of a person declared civilly dead may enter into a subsequent MARRIAGE The state courts are in disagreement on the matter, although, in most instances, where aFELONY is
a ground for DIVORCE, the spouse of the convicted person may end the marriage
CIVIL DISOBEDIENCE
A symbolic, non-violent violation of the law, done deliberately in protest against some form of perceived injustice Mere dissent, protest, or disobedience of the law does not qualify The act must be nonviolent, open and visible, illegal, performed for the moral purpose of protesting an injustice, and done with the expectation of being punished
By peacefully and openly violating the law and submitting to punishment, those engaging
in civil disobedience hope to draw attention to the law they hope to reform, the injustice they hope to stop, or the policy or practice they hope
to end By calling into question the justness, fairness, equity, or propriety of theSTATUS QUO, persons engaging in civil disobedience usually appeal to some form of higher law, whether it
be the divine law of god,NATURAL LAW, or some form of moral reasoning
The philosophical underpinnings for civil disobedience can be found in New Testament writings which report on the teachings of Jesus They also appear in works by Cicero, Thomas Aquinas,JOHN LOCKE, andTHOMAS JEFFERSON In a famous essay entitled “Civil Disobedience,”
HENRY DAVID THOREAUclaimed that the individual
is “a higher and independent power” from which the state obtains its authority As
Trang 8individuals, people must not wait for the
government to recognize injustice and instigate
reform, Thoreau said, because the machinery of
government moves too slowly If individuals
have right on their side, then they must do right
by trying to peacefully and openly change
society
Civil disobedience has been extensively
employed around the world by nationalist
movements (e.g., MOHANDAS GANDHI used civil
disobedience to protest against British colonial
rule in India), CIVIL RIGHTS leaders (e.g.,MARTIN
LUTHER KINGJr used civil disobedience to protest
against racial SEGREGATION laws in the United
States), and anti-war protestors (e.g.,
Muham-mad Ali used civil disobedience to protest U.S
involvement in theVIETNAM WAR), among others
CROSS REFERENCES
Civil Rights Movement; Protest.
CIVIL LAW
In the United States, the term civil law has two
meanings One meaning of civil law refers to a
legal system prevalent in Europe that is based on
written codes Civil law in this sense is contrasted
with the common-law system used in England and
most of the United States, which relies on prior
CASE LAW to resolve disputes rather than written
codes The second meaning of civil law refers to the
body of laws governing disputes between
indivi-duals, as opposed to those governing offenses that
are public and relate to the government—that is,
civil law as opposed to CRIMINAL LAW
The civil law system is derived from the
Roman Corpus Juris Civilus of Emperor
Justi-nian I; it differs from a common-law system,
which relies on prior decisions to determine
the outcome of a lawsuit Most European and
South American countries have a civil law
system England and most of the countries it
dominated or colonized, includingCANADA AND
THE UNITED STATES, have a common-law system
However, within these countries, Louisiana,
Quebec, and Puerto Rico exhibit the influence
of French and Spanish settlers in their use of
civil law systems
In France, the civil law is set forth in the
comprehensive French Civil Code of 1804, also
known as the Code Napoléon France exported
this legal system to the New World when it
settled Louisiana in 1712 When the French
ceded Louisiana to Spain in 1762, the new
Spanish governor replaced French civil law with Spanish civil law France regained control of the territory in 1803 and the United States pur-chased it a mere 20 days later During that brief period of French rule, the French prefect abolished all Spanish courts but did not reintroduce French law Hence, the new U.S
governor of Louisiana, William Claiborne, took control of a territory that lacked a legal system
Determined to Americanize Louisiana, Clai-borne attempted to impose COMMON LAW but met fierce resistance from Louisianans who had grown accustomed to their mixture of French and Spanish laws and culture Realizing that he would not be able to mandate a common law system, he directed the state’s legislature to draft
a civil code based on existing law Louisiana’s first civil code, enacted in 1808, drew heavily from the Code Napoléon and was even written
in French It was replaced in 1825 by a more comprehensive and detailed code Finally, the Louisiana Civil Code, enacted in 1870 and still largely in force, clarifies and simplifies the earlier laws The 1870 code is written in English, signaling a shift toward a partial Americaniza-tion of Louisiana’s legal culture To this day, Louisiana enjoys the distinction of being the only state in the United States to have a civil law system rather than a common-law system
The first article of the Louisiana Civil Code reads: “The sources of law are legislation and custom” (LA C.C Art 1) This means that judges in Louisiana are obligated to look first to written laws for guidance in reaching their decisions If no statute directly governs the dispute, judges may base their decisions on established custom Article 3 defines custom as
a “practice repeated for a long time and generally accepted as having acquired the force
of law.” However, Article 3 makes it clear that custom may not abrogate or conflict with legislation Hence, Louisiana judges do not make law with their decisions; rather, the code charges them with interpreting, as closely as possible, what has been written and passed by the legislature or long established by custom
Louisiana judges, unlike their common-law counterparts, are not bound by judicial prece-dent Common-law judges adhere to the doctrine of STARE DECISIS, which mandates that the outcome of a lawsuit be governed by previous decisions in similar cases Louisiana’s civil code does not recognize the binding force
Trang 9of precedent However, under the civil law doctrine of jurisprudence constante, or settled jurisprudence, judges are expected to follow a series of decisions that agree on the interpreta-tion of a code provision
Although Louisiana is generally called a civil law state, its code is imbued with some common-law features, making it a hybrid of the two traditions The state’s constitution, administrative and criminal law, civil and
CRIMINAL PROCEDURE, and rules of evidence all contain elements derived from common-law principles As a result, Louisiana judges operate under administrative rules that differ from those found in other civil law jurisdictions For example, whereas European judges actively elicit the facts in a controversy and seldom use a jury, Louisiana judges operate more like their common-law colleagues, assuming the role of neutral and passive fact finder or
ARBITER, and leaving theFINAL DECISIONto a jury
Oral argument is generally absent in a pure civil law proceeding, whereas Louisiana’s pro-cedural and evidentiary rules allow oral pre-sentations, resulting in trials that are closer to those found in a common-law court Finally, European courts allow almost unlimited dis-covery by the accused in a lawsuit, whereas Louisiana’s procedural and evidentiary rules place certain restrictions on such discovery
Civil law systems differ from common-law systems in another important way: In a common-law jurisdiction, appellate courts, in most instances, may review only findings of law
However, civil law appellate courts may review findings of fact as well as findings of law This allows a Louisiana appellate court to declare a jury’s decision erroneous, impose its own findings of fact, and possibly even reduce a damage award This is a significant consider-ation for aPLAINTIFFwho has a choice of whether
to file suit in Louisiana or in another state (to bring suit in a particular state, a plaintiff must demonstrate some relationship between that state and the lawsuit) Because a jury award could be overturned on appeal, the plaintiff with a strong case may wish to file in a common-law state On the other hand, if the plaintiff is uncertain of success at the trial level, the possibility of broader review on appeal may make Louisiana the better choice As a practical matter, such dilemmas arise infrequently, and most often involve complex multistate LITI-GATIONconcerning corporations
FURTHER READINGS Apple, James G., and Robert P Deyling A Primer on the Civil–Law System Washington, D.C.: Federal Judicial Center Available online at http://www.fjc.gov/public/ pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf; website home page: http://www.fjc.gov (accessed August 30, 2009).
Rogowski, Ralf 1996 Civil Law and Legal Theory New York: New York Univ Press.
Scott, S.P 2006 The Civil Law Clark, NJ: The Lawbook Exchange.
CROSS REFERENCES Napoleonic Code; Roman Law.
CIVIL PROCEDURE The methods, procedures, and practices used in civil cases
The judicial system is essentially divided into two types of cases: civil and criminal Thus,
a study of civil procedure is basically a study of the procedures that apply in cases that are not criminal
Generally, criminal trials are used by the government to protect and provide relief to the general public by attempting to punish an individual Civil trials can be used by anyone
to enforce, redress, or protect their legal rights through court orders and monetary awards The two types of trials are very different in character and thus have separate procedural rules and practices
PROCEDURAL LAW is distinguished from SUB-STANTIVE LAW, which creates, defines, and regulates the rights and duties of individuals Federal and state constitutions, statutes, and judicial decisions form the basis for substantive
CIVIL LAWon matters such as contracts, torts, and probate Procedural law prescribes the methods
by which individuals may enforce substantive laws The basic concern of procedural law is the fair, orderly, efficient, and predictable applica-tion of substantive laws Procedural guidance can be found in court rules, in statutes, and in judicial decisions
Federal Rules of Civil Procedure
State and federal courts maintain separate procedural rules On the federal level, the Federal Rules of Civil Procedure govern the process of civilLITIGATIONat the level of the U.S district court, which is a trial court At least one U.S district court operates in each state Each district court also exists within one of thirteen federal circuits Any appeal of a decision by a
Trang 10U.S district court is heard by the court of
appeals for the federal circuit in which the
district court sits Appeals of decisions by a U.S
court of appeals may be heard by the SUPREME
COURT OF THE UNITED STATES
The Supreme Court and the courts of
appeals use procedures contained in the Federal
Rules of Appellate Procedure and in the U.S
Supreme Court Rules As reviewing courts, they
are concerned with the district courts’
applica-tion of the Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure are
now contained in title 28 of theU.S.CODE Before
1938, the procedural rules in U.S district courts
varied from circuit to circuit The rules in the
western United States, for example, were
generally less complex than those in the East
To add to the confusion, federal civil cases were
designated either at law, which essentially meant
that the relief sought was monetary or equitable,
which meant that the court was asked to act on
principles of fairness and, generally, to award
nonmonetary relief The distinction was
impor-tant because the procedural rules for a case at
law differed from those for an equity suit
In response to widespread criticism of
procedural complexity, the U.S Congress in
1934 passed the Federal Rules Enabling Act (28
U.S.C.A §§ 2071, 2072) This act conferred on
the Supreme Court the power to make new
rules for federal courts In 1938 new rules were
recommended by an advisory committee
appointed by the Supreme Court and approved
by Congress The new rules featured simplified
PLEADING requirements, comprehensive
discov-ery procedures, aPRETRIAL CONFERENCEto narrow
the scope of a trial and define issues, and broad
provisions for joining parties and claims to a
lawsuit In addition, legal and equitable claims
were merged to proceed with the same set of
rules
After the first set of uniform federal rules
were promulgated, it became clear that
contin-uous oversight of the rules was necessary to
ensure their improvement In 1958 Congress
created the JUDICIAL CONFERENCE OF THE UNITED
STATES, a freestanding body to study federal civil
procedure and propose amendments to the
Supreme Court The Judicial Conference, in
turn, created the ongoing Committee on Rules
of Practice and Procedure to help fashion the
best procedural rules for federal courts
Subse-quently amendments to the Federal Rules of
Civil Procedure occurred on a regular basis
State Courts generally follow the same judicial hierarchy as federal courts In all states,
a party to a civil suit is entitled to at least one review of a trial court decision In some states, a party may be entitled to two appeals: one in a court of appeals, and one in the state supreme court
Procedural rules in state courts are similar to the federal rules Indeed, many states base their procedural rules on the federal rules Thus, there is a large measure of uniformity among the states and among state and federal courts
Litigation Process: Pleadings, Justisdiction, and Venue
ACIVIL ACTIONis commenced with the filing of a complaint ThePLAINTIFFmust file the complaint with the court and must give aSUMMONSto the court and a copy of the complaint to the
DEFENDANT The complaint must set forth the claims and the legal bases for them
Before filing the complaint, the plaintiff must decide where to file it As a general rule, cases are filed in state, not federal, courts The question of whether a particular court has authority over a certain matter and certain parties is one of jurisdiction Federal courts generally have jurisdiction over civil actions in three situations The most common is when the parties to the suit live in different states and the amount of money in controversy exceeds
$50,000 The second instance is when a claim
is specifically authorized by federal statute The third is when a claim is made by or against the federal government or its agents
The jurisdiction of state courts depends on a number of variables Plaintiffs filing in state court generally prefer to file in their home state
However, this may be difficult in a case where the defendant lives in another state and the injury occurred outside the plaintiff’s home state A court in the plaintiff’s home state can gain jurisdiction over an out-of-state defendant
in several ways For example, if the defendant enters the plaintiff’s home state, the plaintiff may serve the defendant there and force the defendant to appear there for trial Or the plaintiff can show the court that the defendant has some minimal amount of contact with the plaintiff’s home state Or the plaintiff can show that the defendant has property in the plaintiff’s home state and the property is the subject matter of the dispute