For example, after the bombing of a federal building in Oklahoma City in 1995, authorities issued a John Doe complaint, charging an unknown person or persons with the crime.. COMPOSITION
Trang 1action Each party to the lawsuit must be identified in the caption and must be a real party in interest, that is, either a person who has been injured or harmed in some way, or a person accused of causing the injury or harm
In addition, a party must have the capacity to sue or to be sued If a party lacks capacity owing
to mental incompetence, for example, the suit may be dismissed Any number of parties may
be named and joined in a single lawsuit as long
as all meet the requirements of capacity and all are real parties in interest
Courts of limited–subject matter jurisdiction, such as federal courts, require the complaint to demonstrate that the court has jurisdiction to
hear the case In general-jurisdiction courts, such
as most state courts, a jurisdictional allegation is unnecessary
The most critical part of the complaint is the claim, or cause of action The claim is a concise and direct statement of the basis upon which thePLAINTIFFseeks relief It sets forth theRULE OF LAW that forms the basis of the lawsuit and recounts the facts that support the rule of law Finally, the claim concludes that the defendant violated the rule of law, thereby causing the plaintiff’s injuries or damages, and that the plaintiff is entitled to relief For example:
A negligence claim might begin with a state-ment that the defendant owed a duty of care to
A sample letter of
complaint
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Dear (Contact Person or Organization Name):
Re: (account number, if applicable)
On (date), I (bought, leased, rented, or had repaired) a (name of the product, with serial or model number or service performed) at (location, date, and other important details of the transaction).
Unfortunately, your product (or service) has not performed well (or the service was inadequate) because (state the problem) I am disappointed because (explain the problem: for example, the product does not work properly, the service was not performed correctly,
I was billed the wrong amount, something was not disclosed clearly or was misrepresented, etc.).
To resolve the problem, I would appreciate your (state the specific action you want—money back, charge card credit, repair, exchange, etc.) Enclosed are copies (do not send originals) of my records (include receipts, guarantees, warranties, canceled checks, contracts, model and serial numbers, and any other documents).
I look forward to your reply and a resolution to my problem and will wait until (set a time limit) before seeking help from a consumer protection agency or Better Business Bureau Please contact me at the above address or by phone at (home and/or office numbers with area code).
Letter of Complaint
Your Address Your City, State, Zip Code (Your e-mail address if sending via e-mail) Date
Name of Contact Person (if available) Title (if available)
Company Name Consumer Complaint Division (if you have no specific contact) Street Address
City, State, Zip Code
Sincerely,
Your name Enclosure(s)
58 COMPLAINT
Trang 2the plaintiff; that the defendant breached that
duty; and that, as a result, the plaintiff suffered
injuries or other damages The conclusion then
states that because the defendant’s breach was
the cause of the plaintiff’s injuries, the plaintiff
is entitled toCOMPENSATIONfrom the defendant
The complaint may state separate claims or
theories of relief in separate counts For
example, in a negligence case, count 1 might
be for negligence, count 2 for breach of
warranty, and count 3 for FRAUD Each count
contains a separate statement of the rule of law,
supporting facts, and conclusion There is no
limit to the number of counts a plaintiff may
include in one complaint
Federal courts and other jurisdictions that
follow the Federal Rules of Civil Procedure
require a brief, simple PLEADING known as a
notice pleading The notice pleading informs
the defendant of the allegations and the basis for
the claim The rules require that the complaint
contain “a short and plain statement of the
claim showing that the pleader is entitled to
relief” (Fed R Civil P 8[a]) Rule 8(c)(1) states,
“Each AVERMENT of a pleading shall be simple,
concise, and direct.”
Following the claim, the prayer for relief or
demand for judgment appears Commonly
called the wherefore clause, the prayer for relief
demands judgment for the plaintiff and relief in
the form of the remedies the plaintiff requests
The plaintiff may demand relief in several forms
Money damages are compensation for injuries
and loss General money damages cover injuries
directly related to the defendant’s actions—such
as pain and suffering, or emotional distress
Special money damages arise indirectly from the
defendant’s actions and may include lost wages
or medical bills The court awards exemplary or
PUNITIVE DAMAGES when the defendant’s actions
are particularly egregious The purpose of
punitive damages is to punish the defendant
and deter similar wrongdoing Other types of
damages are recovery of property, injunctions,
obligation The plaintiff may demand
ALTERNA-TIVE RELIEFor several different types of relief, in
the same complaint (Fed R Civ P 8[a])
A demand for a jury trial may be included
near the end of the complaint The complaint
must be signed by the plaintiff’s attorney,
indicating that the attorney has read the
complaint; that it is grounded in fact, to the
best of the attorney’s knowledge, information, and belief; and that it is brought inGOOD FAITH
Criminal Complaint
A criminal complaint charges the person named
or an unknown person with a particular offense
For example, after the bombing of a federal building in Oklahoma City in 1995, authorities issued a John Doe complaint, charging an unknown person or persons with the crime
A criminal complaint must state the facts that constitute the offense and must be supported byPROBABLE CAUSE It may be initiated
by the victim, a police officer, the DISTRICT ATTORNEY, or another interested party After the complaint is filed, it is presented to a
sufficient cause exists to issue an ARREST WARRANT If the magistrate determines that the complaint does not state sufficient probable cause, the complaint is rejected and a warrant is not issued In federal court, the complaint is presented under oath (Fed R Crim P 3)
FURTHER READINGS Federal Employees News Digest, eds 2000 Whistleblowing:
A Federal Employee’s Guide to Charges, Procedures, and Penalties Reston, Va.: Federal Employees News Digest.
Kahan, Jeffrey B 2001 “How to Prepare Responses to Complaints ” Los Angeles Lawyer 24 (April) Available online at http://www.lacba.org/Files/LAL/Vol24No2/
1102.pdf; website home page: http://www.lacba.org (accessed July 15, 2009).
McCord, James W.H “Drafting the Complaint: Defending and Testing the Lawsuit ” Practising Law Institute 447.
CROSS REFERENCE Civil Procedure.
COMPLIANCE Observance; conformity; obedience
Compliance with the federalINCOME TAXlaws
is essential to avoid prosecution forTAX EVASION
COMPOSITION WITH CREDITORS
A contract made by an insolvent or financially pressed debtor with two or more creditors in which the creditors agree to accept one specific partial payment of the total amount of their claims, which is to be divided pro rata among them in full satisfaction of their claims
A composition with creditors is an agree-ment not only between the debtor and the creditors but also between the creditors
COMPOSITION WITH CREDITORS 59
Trang 3themselves to accept less than what each is owed It is a contract and such an arrangement
is largely governed by contract law There must
be a meeting of the minds or mutual assent between the debtor and the creditors before a composition is created A debtor must accept an offer by the creditors to accept partial payment
of the amounts outstanding in order for the composition to be binding The creditors themselves must also agree to the amount they will accept in satisfaction of their claims They rely on mutual concessions of their rights to full payment in order to further the common purpose of securing their claims
No standard form is required for a compo-sition with creditors to be valid A debtor can enter individual agreements with each creditor
if it is clear that each follows a common purpose All the creditors of a debtor do not have to agree to a composition Those who do not participate are not bound by it
Like any contract, a composition with creditors must be supported by consideration
to be enforceable Each creditor’s promise to accept aPRO RATA share of the partial payment,
as opposed to full payment of what is due, is consideration for the other creditors and the debtor The surrender of debtor’s right to file a petition forBANKRUPTCYis deemed consideration for the creditors
Failure to obey the terms of a composition provides a basis for a lawsuit for breach of the agreement The debtor is released from the duty
of payment only after he or she has complied with the payment provisions All the debts that are part of a composition are extinguished once
a composition has been terminated
Void Agreements
If one creditor is secretly paid more or given a preference, the other creditors can void the agreement because the law guards against the inequitable treatment of creditors The pre-ferred creditor cannot enforce or void the agreement The debtor is entitled to recover payments made to such a creditor on the theory that a debtor is vulnerable to pressure by a creditor who has the power to force the debtor
to file bankruptcy by refusing to enter into a composition
A sample composition
with creditors
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Composition with Creditors
This agreement made on [date], between _ [name of debtor] ("Debtor") of _ , _ County, _ [city, county, and state of debtor's residence or place of business], and [list names and addresses of the principal creditors]
("Principal Creditors") Debtor has been, and is now, engaged in the business of In the course of conducting business, Debtor has become indebted to the Principal Creditors in the several sums set opposite of their respective names in the schedule annexed hereto.
In consideration of the mutual covenants, promises, and conditions contained in this Agreement, it is agreed as follows:
1 Schedule of Payments In exchange for the full satisfaction and discharge of the respective debts of the Principal Creditors, Debtor
shall pay to each of the Principal Creditors _ cents on the dollar on his, her, or its debt specified in the schedule annexed hereto.
2 Release of the Debtor Each of the Principal Creditors hereby agrees to accept such composition in the full satisfaction of his, her,
or its debt When such compensation is duly paid to the Principal Creditors respectively, then the Debtor shall be released and discharged from the debts and liabilities that the Debtor now owes the Principal Creditors.
3 Validity of Agreement This agreement shall become binding and effective although not executed by all of the creditors of the
Debtor, and although all or any of the nonexecuting creditors may be paid in full This agreement shall be void if the composition
is not paid at the time and manner specified in this Agreement, or of the Debtor is adjudged bankrupt.
4 Binding Effect This agreement shall legally bind the parties, and their respective legal representatives, successors, and assigns.
[Signature of all parties]
60 COMPOSITION WITH CREDITORS
Trang 4A composition with creditors is usually more
beneficial to a debtor than bankruptcy because
it accomplishes the same end—discharge of all
or most of a debtor’s debts—without the stigma
of bankruptcy Unlike a bankruptcy discharge, a
composition does not preclude future
bank-ruptcy for six years Creditors, however, are
often reluctant to enter into a composition and
those who refuse to do so are not affected by its
terms
Distinctions
A composition with creditors is not the same as
an accord or an assignment for the benefit of
creditors Unlike an accord, which is an
arrange-ment between a debtor and a single creditor for a
discharge of an obligation by partial payment, a
composition is an arrangement between a debtor
and a number of creditors acting collectively for
the liquidation of their claims
A composition with creditors differs from
an assignment for the benefit of creditors in a
number of ways It is created by contract, as
opposed to COMMON LAW or statute Only
creditors who agree to it are bound, while an
assignment discharges debts voluntarily released
by creditors The terms of the composition
determine whether the debtor retains property
However, in most jurisdictions, the property of
a debtor who has assigned it for his or her
creditors’ benefit is given to a third person with
orders to sell it and distribute the proceeds to
the creditors Unlike an assignment, a
composi-tion is not a basis for an involuntary bankruptcy
proceeding
A sample form for composition with
creditors can be found above
COMPOUND INTEREST
Interest generated by the sum of the principal and
any accrued interest
Interest is normally compounded on a daily,
quarterly, or yearly basis The more often
interest is compounded, the larger the principal
will grow and the greater the interest the new
principal will produce
COMPOUNDING A FELONY
A criminal offense consisting of the acceptance of a
reward or other consideration in exchange for an
agreement not to prosecute or reveal a felony committed by another
Compounding a felony is encompassed in statutes that make compounding offenses a crime
COMPOUNDING OFFENSE
A criminal act in which a person agrees not to report the occurrence of a crime or not to prosecute
a criminal offender in exchange for money or other consideration
The offense is also committed when a person accepts remuneration for encouraging a witness
to be absent from a trial or employs any unlawful tactics to delay a criminal proceeding
Under the COMMON LAW and most modern statutes a compounding offense consists of three basic elements: (1) knowledge of the crime; (2) the agreement not to PROSECUTE or inform; and (3) the receipt of consideration The offense is complete when there is an agreement to either withhold evidence of the crime, conceal it, or fail
to prosecute it A crime is not compounded when a person merely reacquires property previously stolen from him or her; the crime would further require that the return of the stolen property was conditioned on an agree-ment not to report or prosecute the crime
The individual compounding the crime must be aware of the previous offense although the person who committed it need not be tried
or convicted The fact that the person who committed the previous crime is not tried until after the prosecution for compounding occurs is irrelevant
The consideration can consist of anything of value, such as money, property, or a promise of monetary gain Only the recipient of the consideration can be guilty of compounding
an offense Although the person who offers the consideration is not considered guilty of compounding a crime, he or she might be guilty of BRIBERY
At common law the compounding of any crime was an offense In the early twenty-first century, many jurisdictions limit the offense to the compounding of felonies The usual pun-ishment is a fine, imprisonment, or both
COMPRISE
To embrace, cover, or include; to confine within;
to consist of
COMPRISE 61
Trang 5In the law governing patents—grants of an exclusive right or privilege to make, use, or sell
an invention or product for a term of years—
the term comprise indicates inclusion rather than limitation When aPATENTclaim states that
a particular product is composed of certain elements, this means that other elements may also be present
As used in the devise of land, comprise means to contain or embrace A plot of land may be comprised of a certain number of acres
COMPROMISE AND SETTLEMENT Settlement of a dispute by mutual agreement to avoid a lawsuit
disputes to avoid lawsuits Parties to conflicts that might otherwise end up in court are encouraged to resolve those conflicts by mutual agreement through their attorneys, through mediators, or even on their own A compromise and settlement can be used for many types of disagreements including contract disputes, civil disputes, labor-management negotiations, crim-inal cases, andDIVORCEand custody problems
The terms of a settlement agreement do not necessarily need to be equal One party may give
up more than originally intended However, as long as the parties agree to the terms and the court views the compromise as fair, the settlement will be upheld by the court
A settlement is considered binding, and the court views it as final and conclusive A compromise and settlement will be put aside only if there is evidence ofBAD FAITHorFRAUD
A valid compromise and settlement can be
in any form, written or verbal A writing is not required unless specified by statute, court rule,
or the terms set by the parties When the agreement is written, it must clearly state the intentions of the parties
A compromise and settlement must have the same elements as a contract: Parties who have the capacity and authority to agree, an offer and acceptance, and VALUABLE
received or promised by one party to induce the other party to enter into an agreement)
Any party competent to enter into a contract can use compromise and settlement
to resolve a conflict There must be aMEETING OF MINDSin order to form a valid compromise; in
other words, the parties must have the same understanding of the settlement There must also be an offer of compromise and an acceptance of that offer The offer can be made
by either party The terms of the offer must be clear and must show that the party making the offer intends to assume some obligation The offer can be made subject to certain conditions that must be satisfied for a valid compromise For example, a creditor creates a conditional offer when he or she sends a
PROMISSORY NOTE for less than the full amount
of a debt If the debtor signs the note, he or she
is agreeing to forgive part of the debt If the debtor refuses to sign the note, the creditor’s offer is rejected The offer is conditioned on the debtor’s signing the note
An offer of compromise and settlement must be made within a REASONABLE TIME Acceptance of an offer of compromise must likewise be made within a reasonable time, and
on the terms offered However, delay in acceptance is immaterial when the person making the offer is not prejudiced by it Acceptance can be implied or expressed If it
is based on a condition that proves impossible
to perform, no settlement is possible
An offer of compromise can be withdrawn before acceptance, but not after When an agreement is put in writing, either party may withdraw before signing If court approval is necessary, one party can repudiate the agree-ment prior to the approval of the court Like any other contract, a valid compromise and settlement must be based on consideration Anything of value exchanged by the parties, including money or property, is sufficient to support a compromise and settlement If a debtor agrees to pay more than she or he thinks
is owed, the additional amount is consideration
in exchange for settlement of the debt Resolu-tion of family conflicts can also be considered valuable consideration The adequacy of the consideration, however small or slight it might
be, is usually not a matter for judicial scrutiny Unless the consideration is so unfair as to shock the conscience, inadequacy of consideration does not justify setting aside a compromise and settlement
Disputes involving family matters are fre-quently the subject of compromise and settle-ment Increasingly, courts are encouraging, and sometimes mandating, that parties in divorce
62 COMPROMISE AND SETTLEMENT
Trang 6and custody matters seek settlement before
pursuing an issue through trial In a family
setting, where issues are very personal and
emotional, compromise and settlement
pro-vides a means of preserving some sense of the
close relationship between the parties Because
the parties reach the final agreement together,
family matters resolved through compromise
and settlement tend to be more amicable than
those resolved throughLITIGATION
Compromise and settlement can also be
used to settle disputes with theINTERNAL REVENUE
money may propose a compromise for the
method or amount of its payment When the
government accepts this compromise offer, it
becomes a binding contract (47B C.J.S Internal
Revenue § 1064 [1995])
COMPROMISE OF 1850
The Compromise of 1850, also known as the
Omnibus Bill, was a program of legislative
measures enacted by Congress to reconcile the
differences existing between the North and
South concerning the issue ofSLAVERY in newly
formedTERRITORIES OF THE UNITED STATES
The historical background of the enactment
of the Compromise involved the increasingly hostile relationship between the northern and southern states of the Union over the existence
of slavery This hostility was partly due to the reluctant enforcement by northern states of the Fugitive Slave Act of 1793, which established procedures for the return of runaway slaves to their owners The dissension was exacerbated in
1848 when the United States annexed Texas and gained new territories under the provisions of the Treaty of Guadalupe Hidalgo, which brought about the end of the Mexican Ameri-can War Abolitionists continued to favor the antislavery stance of the WILMOT PROVISO prohi-biting slavery in the lands acquired from Mexico, which was proposed in 1846, but was never enacted into law The South vehemently opposed the exclusion of slavery from the new territories
In 1849 the request of California to join the Union as a free state resulted in heated debates
on the floor of Congress Many viewed the situation as a grave threat to the existence of the Union HENRY CLAY returned to the Senate to propose measures, based upon the ideas of
New Mexico Territory 1850
Unorganized Territory
Utah Territory 1850
California
Oregon Territory Minnesota Territory
Iowa
Missouri
MS AL Georgia
FL
Kentucky Tennessee North Carolina
SC
LA Texas
Indian Terr.
(unorganized) Arkansas
Michigan
Ohio
Virginia
Pennsylvania
Wisconsin
New York
VT
RI
NH
MA
ME
CT
NJ
DE
MD
Indiana Illinois
P a c i f i c
O c e a n
A t l a n t i c
O c e a n
G u l f o f
M e x i c o Slave States and
Territories
Free States and Territories
Territories where voters determine status of slavery
The Compromise of 1850 was negotiated amongst the most
formidable congressmen of the times, including Henry Clay,
John C Calhoun, and Daniel Webster Under the compromise,
California entered the Union as a free state; territories obtained
from Mexico were to decide the issue of slavery by popular vote;
slave trade was banned from the capital, Washington, D.C.; and
Congress adopted a stricter Fugitive Slave Law.
The Compromise of 1850
The Compromise of
1850 was negotiated amongst the most formidable congressmen of the times, including Henry Clay, John C Calhoun, and Daniel Webster Under the compromise, California entered the Union as a free state; territories obtained from Mexico were to decide the issue of slavery by popular vote; slave trade was banned from the capital, Washington, D.C.; and Congress adopted a stricter Fugitive Slave Law ILLUSTRATION BY ERIC WISNIEWSKI GALE GROUP.
COMPROMISE OF 1850 63
Trang 7different positions of the North and South.
The proposals included the admission of California into the Union as a free state, the right of the New Mexico and Utah territories to determine the slavery issue for themselves at the time of their admission to the Union, the outlawing of the slave trade in the District of Columbia, and the congressional enactment of the more stringent FUGITIVE SLAVE ACT OF 1850 (9 Stat 462)
Due to the efforts of DANIEL WEBSTER and others, these controversial measures, which initially caused heated debate, were enacted by Congress in September 1850 Although labeled
a compromise due to its position on slavery, the Compromise of 1850 had short-lived effect as a solution to the issue in light of the subsequent problems resulting in the enactment of the
KANSAS-NEBRASKA ACT in 1854 (10 Stat 277) and the onset of the Civil War less than ten years later
CROSS REFERENCES
“Compromise of 1850” (Appendix, Primary Document).
COMPTROLLER
An officer who conducts the fiscal affairs of a state
or municipal corporation
A comptroller, which is often synonymous with auditor, generally has specific duties including the supervision of revenue, the examination and certification of accounts, and the inspection, examination, or control of the accounts of other public officials
A state comptroller’s major function is the final auditing and settling of all claims arising against the state The chief financial officer of any private organization, such as a university or
a corporation, is also called a comptroller
Within the federal government, the office of the comptroller of the currency exists as part
of the national banking system The function of this office is to promulgate and execute rules and regulations that govern the national banks
The approval of the comptroller of currency is essential to the organization of new national banks, as well as the transformation of state-chartered banks into national banks and the consolidation and merger of banks
The comptroller general of the United States
is the leading official of theGENERAL ACCOUNTING
OFFICE whose primary duty is to AUDITvarious governmental agencies
COMPULSORY PROCESS The method employed by which a person wanted
as a witness, or for some other purpose, in a civil
or criminal action is forced to appear before the court hearing the proceeding
Compulsory process encompasses not only
aSUBPOENA, which is a command to appear at a particular time and location to provide testimony upon a certain matter, but also aBENCH WARRANT, which is a written order commanding a law enforcement officer to seize the person named and bring that person into court
provides that the accused in criminal prosecu-tions shall have the right“to have compulsory process for obtaining witnesses in his favor.” COMPURGATOR
In early legal practice, one of several character witnesses produced by someone accused of a crime
or by a defendant in a civil suit to attest, in court, that he or she believed the defendant on his or her oath
The process of compurgation, calledWAGER OF LAWin England, was a type of absolution from a criminal or civil charge that enabled the DEFEN-DANT to come forward and swear to his or her innocence or nonliability Through compurga-tion, the person on trial was able to conclusively contradict the charges and reinforce his or her position through others who testified under oath that they believed the defendant’s testimony The use of character witnesses in a lawsuit by
a party is derived from the old practice of summoning compurgators to buttress one’s case
COMPUTER-ASSISTED LEGAL RESEARCH
Technology that allows lawyers and judges to bypass the traditional law library and locate statutes, court cases, and other legal references in minutes using a personal computer, research software, or the Internet and an online connection The two largest computer-assisted legal research (CALR) services are WESTLAW, offered by Thomson Corporation’s Eagan, Minnesota-based West unit, and LEXIS, offered
by Reed Elsevier’s Dayton, Ohio-based Lexis-Nexis unit Both services provide online access
64 COMPTROLLER
Trang 8to the fundamental tools of the legal profession:
court opinions, federal and state statutes, federal
regulations, administrative law cases, and other
law-related materials Their extensive databases
are updated frequently, providing attorneys
with the most up-to-the-minute developments
in U.S law
CALR systems contain thousands of
data-bases In addition to primary source materials,
they offer access to business and economic
journals, national newspapers, law reviews,
federal tax abstracts, and financial data and
materials Specialized databases for narrower
topics such as taxes, securities, labor, insurance,
andBANKRUPTCYare also available
When CALR was first developed in the
1970s, it borrowed Boolean search techniques
from the field of computer programming
A Boolean search looks for a particular term
or group of terms in a specific relationship to
one another CALR Boolean searches can
include limits with respect to time: for example,
court opinions are always dated, so an attorney
can use a Boolean search to look for cases
released in a given year or in a range of years
CALR service providers have also created
plain language search systems Under the plain
language approach, an attorney simply types in
a search in the form of a question
The following two samples demonstrate the
difference between a Boolean search and a plain
language search for the same question: whether
a successor corporation is liable for the cleanup
of toxic waste left by a prior owner of the
property The two examples reflect WESTLAW
notation; the notation for LEXIS would be
similar Boolean search: (successor /5
corpora-tion) /p (toxic or hazardous or chemical or
dangerous /5 waste) /p clean! and da(aft 1/1/90)
Plain language search: is a successor corporation
liable for the cleanup of hazardous (toxic) waste?
The sample Boolean search looks for the
combination of successor within five words of
corporation, in the same paragraph as the
combination of toxic or hazardous or chemical
or dangerous within five words of waste, within
the same paragraph as clean or cleanup or cleans
or cleaned or cleaning (the exclamation mark in
clean! causes the computer to search for all
words with clean as a root) Cases are limited to
those dated after January 1, 1990
Boolean search results usually are listed in
reverse chronological order (the most recent
case first) A plain language search ranks the first 20 documents that best match the search
The first ranked document is the one that most closely matches the terms in the search
A document will be ranked higher if the terms appear more often in that document
Advances in computer technology have produced another innovation in automated research: voice recognition research With this method, a search query is dictated either in plain language or by using Boolean terms and connectors After the simple commands are spoken, the researcher’s exact words appear on the computer screen and the requested docu-ments are retrieved The keyboard is not used at all during the search
Legal researchers have the OPTION of using CD-ROM (compact disc read-only memory) libraries, although those lessened in popularity beginning in the early 2000s Historically, a personal computer, CD-ROM drive, and specific software were required to use CALR More advanced technology, however, has allowed modern users to access a CALR online service using theINTERNET
The shift in the technology used to access CALR is demonstrated by the change in billing practices used by the major CALR service providers Although at the outset CALR services were offered only on a subscription-basis, both WESTLAW and LEXIS have developed docu-ment retrieval systems without a subscription
This service offers legal researchers instant access to information with the use of a credit card on a pay-per-use basis
The Internet has become a valuable resource for business and legal research, even beyond the services of CALR providers, given that many statutes, court opinions, andLIBRARY OF CONGRESS
materials are available online It is also used for document transfers and client email
Recent Developments
Most judges, law clerks, lawyers, and law librarians continue to rely on the traditional fee-based giants of online legal research: Lexis, Westlaw, and Loislaw (owned by New York-based Aspen Publishers, Inc., a subsidiary of Dutch publishing company Wolters Kluwer)
However, more law-related professionals are turning to free Internet sites to conduct their legal research A number of Websites now provide free access to a variety of legal materials
COMPUTER-ASSISTED LEGAL RESEARCH 65
Trang 9that include federal and state CASE LAW, codes and regulations, treatises, law reviews, scholarly articles, mainstream news stories, as well as legal forms, public records, and attorney directories
Examples of Internet sites that provide free access to at least some of these legal resources are numerous, though the depth and breadth of coverage offered by these site varies Among the myriad of such providers, Findlaw (www.findlaw
com) generally remains the benchmark for comprehensive quality Many law school Internet sites also provide free access to a wide variety of information One such example is the Legal Information Institute, a Website maintained
by Cornell Law School (www.law.cornell.edu)
This site provides a range of primary and secondary source materials, as well as directories
to locate additional information on the Web
FindLaw provides multiple channels for accessing information from its portal and caters the information to specific types of end users
These include channels for legal professionals, students, businesses, and the public Material specific to these targeted audiences is made available as well as resources for all users, such
as cases, codes, articles, and guides Within each channel, users can drill down to the area of law that interests them
For example, students can look at outlines and examinations for a variety of legal courses, view employment opportunities, or learn about study skills Business people can gain insights into starting a business, review different types of business organizations, and look into
bankrupt-cy provisions For the general public, topics include employment, IMMIGRATION, PERSONAL INJURY, education, estate planning, and REAL ESTATE law FindLaw also continues to provide
an excellent federal case law database that is searchable by title, citation, and full text All cases from U.S Reports from 1893 to the present are included
While great amounts of legal information can now be obtained on the Internet free of charge, the information typically consists of unanalyzed, non-value-added material such as primary-source documents stripped of the editorial enhancements provided by pay ser-vices Such enhancements include case synopses (editorially created summaries of the procedural history and holding of a case), case headnotes (editorially created snapshots of each court ruling in a case), statutory annotations (editorially
created indices listing every case that has interpreted or applied a particular statute), and legal citators (editorially created reference guides telling users whether a legal authority may still be cited in court as good law), among others Because these editorial enhancements can be valuable in making legal research more efficient and successful, many law-related professionals remain willing to pay significant subscriber and user fees to access them
FURTHER READINGS Delaney, Stephanie July 11, 2008 Electronic Legal Research:
An Integrated Approach, 2d ed Delmar Cengage Learning.
Ebbinghouse, Carol 2001 “Portals to the Future of Legal Information ” Searcher Magazine (July 1).
Jatkevicius, James 2003 “Free Lunch: Legal Resources from Plain to Polished ” Online Magazine (March 1) The Lawyer’s PC: A Newsletter for Lawyers Using Personal Computers 1993 Colorado Springs: Shepard ’s/ McGraw-Hill.
“A Show-Stopper from WESTLAW.” 1992 California Lawyer (November).
CROSS REFERENCES Computer Law Association; Internet; Law Review.
COMPUTER CRIME Computer crime is the use of a computer to take or alter data or to gain unlawful use of computers or services
Because of the versatility of the computer, drawing lines between criminal and noncrimi-nal behavior regarding its use can be difficult Behavior that companies and governments regard as unwanted can range from simple pranks, such as making funny messages appear
on a computer’s screen, to financial or data manipulation producing millions of dollars in losses Early prosecution of computer crime was infrequent and usually concerned embezzle-ment, a crime punishable under existing laws The advent of more unusual forms of abuse such as computer worms and viruses and widespread computer hacking has posed new challenges for government and the courts
A particularly widespread manifestation of such abuse is inIDENTITY THEFTand credit cardFRAUD The first federal computer crime legislation was the Counterfeit Access Device and Com-puter Fraud and Abuse Act (18 U.S.C.A
§ 1030), passed by Congress in 1984 The act safeguards certain classified government infor-mation and makes it a MISDEMEANOR to obtain
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infor-mation that federal laws protect The act also
criminalizes the use of computers to inflict
damage to computer systems, including their
hardware and software
In the late 1980s many states followed the
federal government’s lead in an effort to define
and combat criminal computer activities At least
20 states passed statutes with similar definitions
of computer crimes Some of those states might
have been influenced by studies released in the
late 1980s One report, made available in 1987 by
the accounting firm of Ernst and Whinney,
estimated that computer abuse caused between
$3 billion and $5 billion in annual losses in the
United States Moreover, some of those losses
were attributable to newer, more complicated
crimes that usually were not prosecuted
The number of computer crimes continued
to increase dramatically in the early 1990s
According to the Computer Emergency and
Response Team at Carnegie-Mellon University,
the number of computer intrusions in the
United States increased 498 percent between
1991 and 1994 During the same time period,
the number of network sites affected by
computer crimes increased by 702 percent In
1991, Congress created the National Computer
Crime Squad within the FEDERAL BUREAU OF
the Squad reportedly investigated more than 200
individual cases involving computer hackers
Congress addressed the dramatic rise in
computer crimes with the enactment of the
National Information Infrastructure Act of 1996
as Title II of the Economic ESPIONAGE Act of
1996 (Pub L No 104-294, 110 Stat 3488)
That act strengthened and clarified provisions
of the original Computer Fraud and Abuse Act,
although lawmakers and commentators have
suggested that as technology develops, new
legislation might be necessary to address new
methods for committing computer crimes The
new statute also expanded the application of the
original statute, making it a crime to obtain
unauthorized information from networks of
government agencies and departments, as well
as data relating to national defense or foreign
relations
Notwithstanding the new legislation and law
enforcement’s efforts to curb computer crime,
statistics regarding these offenses remained
staggering According to a survey in 2002
conducted by the Computer Security Institute,
in conjunction with the San Francisco office of the FBI, 90 percent of those surveyed (which included mostly large corporations and govern-ment agencies) reported that they had detected computer-security breaches Eighty percent of those surveyed acknowledged that they had suffered financial loss due to computer crime
Moreover, the 223 companies and agencies in the survey that were willing to divulge informa-tion about financial losses reported total losses
of $455 million in 2002 alone
Moreover, concerns about TERRORISM have included the possibility that terrorist organiza-tions could perform hostile acts in the form of computer crimes In 2001 Congress enacted the Uniting and Strengthening America by Provid-ing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) (Pub L No 107-56, 115 Stat 277) to provide law enforcement with the necessary tools to combat terrorism The act includes provisions that allow law enforcement greater latitude in hunting down criminals who use computers and other communication networks
The Homeland Security Act of 2002 (Pub
L No 107-296, 116 Stat 2135) also directed the United States Sentencing Commission to re-view, and possibly to amend, the sentencing provisions that relate to computer crimes under
David L Smith was arrested in April 1999 for creating and disseminating the
“Melissa” virus, which infected an estimated 1.2 million computers and affected one-fifth of the country’s largest businesses.
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