The words court, judge, or judges, when used in laws, are often synonymous.. Judicial System consists of 52 separate court systems, plusTERRITORIAL COURTS, in the United States.. Sometim
Trang 1injury and some property damage after their cars collided Under the rules governing plead-ing in most courts, the woman would be required to assert a demand for money damages for the same accident in her answer to the man’s complaint or she would lose the right to sue on that claim If the man also happens to be a neighbor who borrowed the woman’s chain saw and never returned it, the woman could demand return of the saw as a counterclaim
or she could wait and sue the man for that at some other time She might decide to wait in order to sue in a different court or because she does not want to argue the different circum-stances of both claims before the same jury
A defendant usually cannot make a coun-terclaim if it is not possible to make the same claim by starting a lawsuit For example, a lawsuit to collect on a claim cannot be started after the period of time allowed by aSTATUTE OF LIMITATIONS has run out In certain situations, however, a defendant may assert an expired cause of action as a counterclaim This proce-dure, allowed for reasons of fairness and justice,
is called equitable recoupment The court may reduce the plaintiff’s money damages up to the amount of the defendant’s counterclaim, but the defendant will not be allowed an affirmative recovery of money over and above the amount
to which the plaintiff may be entitled
CROSS REFERENCE Set-off.
COUNTERCLAIMS AND SETOFFS AGAINST SOVEREIGNS
A comprehensive term for the vulnerability of a foreign government to retaliatory suits against it arising out of a lawsuit that it commences against
a party
The Federal Foreign Sovereign Immunities Act (28 U.S.C.A § 1602 et seq.[1976]) provides that, in any action initiated by a foreign state or
in which a foreign state intervenes, such a state
is not afforded immunity regarding any coun-terclaim for which no immunity would have been granted if such aclaim had been brought in
a separate action against the foreign state In addition, a foreign state is not entitled to immunity in cases involving counterclaims that arise out of the transaction that is the subject matter of the foreign state’s claim, or to the extent that the counterclaim does not seek relief
that is in excess of, or different from, the type sought by the foreign state
The Foreign Sovereign Immunities Act codified the general rule that when a foreign government brings suit, it is deemed to have submitted to the court’s jurisdiction and waives its immunity to the extent that a counterclaim arising out of the same transaction or to the extent that the counterclaim, when used defensively in the form of a setoff, is not in excess of the amount of the foreign state’s claims
A foreign nation that is a PLAINTIFF in an action brought before a court of another nation
is not barred in appropriate cases from invoking the act of state doctrine to preclude a counter-claim against it This doctrine provides that, as a general rule, the acts of one foreign state committed within its own boundaries or territories are not reviewable by the courts of another nation
CROSS REFERENCES International Law; Set-off.
COUNTERFEIT
To falsify, deceive, or defraud A copy or imitation
of something that is intended to be taken as authentic and genuine in order to deceive another
A counterfeit coin is one that may pass for a genuine coin and may include a lower denomi-nation coin altered so that it may pass as a higher denomination coin
COUNTERFEITING The process of fraudulently manufacturing, alter-ing, or distributing a product that is of lesser value than the genuine product
Counterfeiting is a criminal offense when it involves an intent to defraud in passing off the counterfeit item The law contains exemptions for collector’s items and items that are so obviously dissimilar from the original that a
REASONABLE PERSON would not consider them real However, making a poor copy is no defense if the intent to defraud exists
Counterfeiting most commonly applies to currency and coins It is illegal to manufacture, possess, or sell equipment or materials for use
in producing counterfeit coins and currency Federal law also prohibits producing counterfeit postmarks, postage stamps, military papers, or
248 COUNTERCLAIMS AND SETOFFS AGAINST SOVEREIGNS
Trang 2government SECURITIES Counterfeiting also
applies to the fraudulent manufacture and sale
of other items, such as computer software, CDs,
consumer products, airplane parts, and even
designer dresses An increase in this type of
counterfeiting has led to a strengthening of
INTELLECTUAL PROPERTYlaws worldwide
Counter-feiting or conspiracy to distribute counterfeit
goods can lead to state or federal criminal
charges Civil lawsuits also can result from
allegations of counterfeiting
Coins and Currency
Counterfeit coins appeared within a century of
the first legitimate coins, which appeared in
about the seventh century B.C The severity of
the punishment for counterfeiting (death, in
many cultures) and the difficulty of creating
counterfeit coins that did not include some
metal of value (and therefore cost a significant
amount to produce) kept the practice in check
However, counterfeiting flourished after the
development of paper money in about A.D
1650, especially in American colonies where
counterfeit bills and even coins were sometimes
more common than genuine ones
Counter-feiters had honed their skills so much that when
the United States issued its first federal coins
in the 1780s, the government hired an
ex-counterfeiter to cut the dies Counterfeiting boomed again during the CIVIL WAR, when the United States issued its first paper money
For many decades, the skills and equipment that are needed to create counterfeit money confined the practice to a few professionals, and the SECRET SERVICE, the branch of the TREASURY DEPARTMENT that is charged with enforcing counterfeiting laws, discovered most counter-feiters before the money leaked into circulation
But in the late twentieth century, with the availability of new technologies, such as color copying and electronic reprographics, more counterfeit schemes emerged The DEPARTMENT
OF THE TREASURY estimated that $25 million worth of counterfeit bills were passed off in fiscal year 1994 Further damaging U.S currency was a flood of fraudulent $100 bills on the world market The Secret Service believes that from the early to mid 1990s, as much as $10 billion worth of nearly perfect counterfeit $100 bills were circulating internationally It believes that the bills were printed on a press that is similar
to those used by the U.S Treasury and that had been sold to Iran in the 1970s In 2002 authorities seized $130 million in fraudulent U.S
notes worldwide before they were circulated, and detected $44.3 million in spurious U.S
currency after it had passed into unwitting
A fan displays both a counterfeit (top) and
an actual ticket to the opening game of the
1996 World Series Counterfeiting laws apply to a wide variety of products, not just currency.
AP IMAGES COUNTERFEITING 249
Trang 3hands But according to the Secret Service, the amount of fake money circulating has been fairly constant over recent decades, and only one or two notes in every 10,000 are counterfeit
The increase in counterfeiting prompted Congress to pass the Counterfeit Deterrence Act
of 1992 (18 U.S.C.A § 471 note) to increase penalties Prior to the enactment of new law, it was not a criminal act to manufacture counter-feit U.S currency abroad The law also instructed the Department of the Treasury to redesign paper money in order to make it more difficult to reproduce In 1996 the first new currency was released The bills’ portraits were increased in size and moved to the left, to make room for watermark miniatures of them
Treasury officials believe that the watermark and the use of color-shifting inks make the currency nearly impossible to reproduce with current technologies
Other Items Counterfeiting also applies to reproductions of packaging when the intent is to defraud or to violate protections under trademark, copyright,
or patent laws It is estimated that U.S
companies lose $8.1 billion annually in overseas business owing to violations of intellectual property laws Increasing the enforcement of trademark and copyright law to discourage counterfeiting has been a focus of U.S trade negotiations, both with individual countries and during the Uruguay Round of the international
GENERAL AGREEMENT ON TARIFFS AND TRADE, Pub L
No 103-465, 108 Stat 4809 (1994)
Disputes over counterfeit CDs and computer software have been at the center of U.S trade conflicts with China for several years Software manufacturers claim that 98 percent of the software used in China, including that used by the government, was illegally copied Other goods that are distributed under false trademarks include cereal, razor blades, and soap Under pressure from the United States, China strength-ened its copyright and trademark laws in 1993
Lax enforcement resulted in a new trade agreement in 1995, which was designed to give U.S manufacturers greater access to Chinese markets Nevertheless, counterfeiting in China remains rampant
Although most counterfeiting allegations are brought through the criminal courts, counter-feiting that violates patent, trademark, or
copyright laws has resulted in civil lawsuits For example, in 1994, a Paris court found that designer Ralph Lauren had copied a tuxedo dress pattern from Yves Saint Laurent’s collec-tion and ordered Lauren to pay his competitor
$386,000 in damages
Punishment Under federal law, counterfeiting is a class C felony, punishable by up to 12 years in prison and/or a fine of as much as $250,000 State laws also establish penalties for counterfeiting
FURTHER READINGS Glaser, Lynn 1968 Counterfeiting in America: The History of
an American Way to Wealth New York: Potter.
“Know Your Money: How to Detect Counterfeit Money.”
2008 Washington, D.C.: U.S Secret Service Available online at http://www.ustreas.gov/usss/money_detect shtml; website home page: http://www.ustreas.gov (accessed September 1, 2009).
The Economic Impact of Counterfeiting and Piracy 2007 Paris, France: Organisation for Economic Co-operation and Development.
COUNTEROFFER
In contract law, a proposal made in response to an original offer modifying its terms, but which has the legal effect of rejecting it
A counteroffer normally terminates the original offer, but the original offer remains open for acceptance if the counteroffer ex-pressly provides that the counteroffer shall not constitute a rejection of the offer
The UNIFORM COMMERCIAL CODE (UCC)—a body of law adopted by the states that governs commercial transactions—modifies this princi-ple of contract law with respect to the sale of goods by providing that the “additional terms are to be construed as proposals for addition to the contract.”
COUNTERSIGN The inscription of one’s name at the end of a writing, done by a secretary or a subordinate, to attest to the fact that such a writing has been signed by a principal or a superior, thereby vouching for the genuineness of the signature To write one’s name at the end of a document—in addition to the inscription of a name by another—to attest to the authenticity of the signature
250 COUNTEROFFER
Trang 4A political subdivision of a state, the power and
importance of which varies from one state to
another
A county is distinguishable from a city or
MUNICIPAL CORPORATION, since a municipal
cor-poration has a dual character, both public and
private, while a county is established by the state
and is considered to be an agency thereof
ThroughHOME RULE, a municipality may make
certain decisions on matters of local concern,
while a county is controlled by the state and
does the work of state administration
In the state of Louisiana, a state political
subdivision is known as a parish Comparable to
counties, parishes have no independent
exis-tence apart from the state but possess only such
authority as the state grants them
Status
The state constitution determines the
proce-dures for the formation of a county Certain
states require a specific minimum size
popula-tion or property value before a county is
created A county government that is too small
can be either completely abolished or subject to
a consolidation plan designed to merge urban
and rural areas Conversely, a county that
becomes too large or diverse following an
extended period of development can be divided
by the state to form a new county
The principle ofSOVEREIGN IMMUNITYpermits
states to refuse to allow anyone to sue them
This doctrine protects counties from legal action
to the same extent that the states they exist in
are so protected States and counties can only be
sued where state law specifically permits it
Boundaries
Ordinarily, the boundaries of a county are set by
the state legislature If a boundary is marked by
a stream or river, the county extends to the
center and remains there from the time of the
county’s creation, even if the stream
subse-quently changes course When a lake is the
boundary, the county line ordinarily extends to
the bank or the low water mark A boundary
that is on the ocean extends to the three-mile
limit offshore
State law provides for the revision of the
boundaries of counties Certain state statutes
proscribe the creation of a new county line too
close to an already existing county seat
Ordinarily voters can petition for the expansion
or division of a county where population and commercial growth justify it Although citizens have no absolute right to prevent the alteration
of county lines by state legislatures, the legisla-ture cannot change boundaries for the purpose
of diluting the voting power of some of the citizens in an election
The state retains power to designate special districts for purposes of irrigation, flood control, fire protection, or library services, which do not affect the makeup of existing counties
Government The government of a county is located at the county seat, a city or town where court sessions are held and duties are performed by county officers The county board, comprised of public officials who are elected or appointed to serve on it, is the body that manages the government of the county Other county officials include sheriffs, clerks, surveyors, and commissioners responsible for certain areas such as highways and HUMAN RIGHTS
The state gives counties express authority to purchase and sell property and to raise funds from taxes, licenses, or bond issues Counties have state-granted authority to make provisions for public health, safety, welfare, and morals of its residents through the enactment and en-forcement of ordinances and regulations The state, however, has the authority to make the decision whether to create courts on the county level or to use counties to designate intrastate judicial districts
COUPON
A certificate evidencing the obligation to pay an installment of interest or a dividend that must be cut and presented to its issuer for payment when it
is due
Coupons are usually attached to a docu-ment, such as a PROMISSORY NOTE, bond, share ofstock, or a bearer instrument A coupon is a written contract for the payment of a definite amount on a specified date according to the terms of the main document from which it must be separated for presentation for payment
Each coupon represents a separate promise by its issuer to pay its holder on the DUE DATE Failure to do so will support aCAUSE OF ACTION
for breach of contract
COUPON 251
Trang 5COURSE OF DEALING
A clearly recognizable pattern of previous conduct between parties to a business transaction
The course of dealing between parties to an action is examined by a court in ascertaining what the parties intended when they entered into a contract The supposition is that the parties drew up the contract in view of the customary manner in which business had been transacted prior to the signing of the contract
In a breach-of-contract action, evidence of the course of dealing is admissible in order to interpret ambiguities in the contract, but not to effectuate an alteration or contradiction of the contract’s provisions A term that was seemingly unambiguous when the contract was entered into might subsequently prove to be problematic
Course of dealing is distinguishable from both COURSE OF PERFORMANCE and TRADE USAGE Course of performance refers to a pattern of conduct that occurs subsequent to approval of the contract terms Trade usage entails behavior that is the standard of conformity for a majority
of businesses engaged in a particular business or commercial venture
Course of dealing safeguards the expecta-tions of the parties and augments the certainty
of their transactions, based upon their prior experiences with each other
The concepts of course of dealing, course of performance, and trade usage in the context of contract law are derived largely from the work
of Linton Corbin, who did not believe that courts should be bound by the so-called FOUR CORNERSof a contract or to the“plain meaning”
to those terms Corbin was instrumental in the drafting of the UNIFORM COMMERCIAL CODE
(UCC), which governs commercial agreements and transactions in most states The UCC defines course of dealing in its general provi-sions (U.C.C § 1-205) The term applies, for example, to the laws governing contracts for the sale of goods, negotiable instruments, and
SECURED TRANSACTIONS
COURSE OF EMPLOYMENT
As set forth in workers’ compensation acts, the time, place, and conditions under which an on-the-job accident occurs The performance of an act that an employee might prudently do while in the appropriate area during working hours
In the event that an employee causes an injury to another or another’s property, it is
necessary to ascertain whether the employee was acting within the course of employment The employer is legally responsible for the damages if the employee caused them while performing a job If a driver for a transportation firm is involved in an accident with a pedestrian, for example, the pedestrian can sue both the driver and the firm Under the doctrine ofRESPONDEAT SUPERIOR, an employer can be held liable for a tort, a civil wrong other than breach of contract, committed by an employee operating within the scope of the employee’s employment
Workers’ compensation laws require the payment of compensation from the employer to the employee in conformity with a schedule for
a particular category of injury, provided that the employee is injured during the course of employment The course of employment encompasses the actual period of employment and the period during which the employee, while on the employer’s premises, prepares to commence or to depart from work, such as by changing clothes Employer-sponsored recrea-tional activities are also considered part of the course of employment when organized, encour-aged, or supported by the employer for business purposes, such as the promotion of efficiency The test is whether the recreation inured to the employee’s exclusive benefit or whether the employer had some interest in the activity Injuries suffered by an employee while observ-ing, participatobserv-ing, or traveling to or from recreational activities sponsored in whole or in part by the employer but conducted on the employee’s time and off the employer’s premises are not compensable
Where the recreational activity is part of the employee’s compensation, an injury is compen-sable If an employer, for business reasons, arranges and pays for an employee to join and participate in a social or athletic club, the employee’s activities are an incident of the course of employment and an injury is, therefore, compensable
The periods during which an employee prepares for work while at home or commutes
to his or her place of business are not within the course of employment, and, therefore, are not covered by workers’ compensation laws
COURSE OF PERFORMANCE Evidence of the conduct of parties concerning the execution of obligations under a contract requiring
252 COURSE OF DEALING
Trang 6more than one performance that is used for the
purpose of interpreting the contract’s provisions
Course of performance refers to the
system-atic and uniform conduct in which parties
engage after they enter into a contract The
intent of the parties in regard to the meaning of
the agreement is reliably ascertainable through
the application of course of performance only
when a contract requires a repetitive series of
performances There must be more than one
performance, but no particular number is
required The fewer the performances, the more
probable it is that such performances cannot
constitute a course of performance
If a party accepts a course of performance
without objection, his or her acquiescence is
relevant to determining the meaning of the
contract The recipient of the performance need
not expressly assent to the performance; the
lack of an objection is sufficient Unless there
has been acceptance without objection, a party
who performs cannot benefit from the
applica-tion of course of performance
Sometimes the acts of the parties may be
inconsistent with the pertinent contractual
language A party may argue that the meaning
of the agreement is unequivocal—that the
course of performance is inconsistent with
the contract provisions—and, therefore, that
the express terms of the contract should
predominate over the course of performance
The prevailing view is that no contractual
term is so clearly defined that a party cannot
demonstrate the way in which the parties
actually applied it Pursuant to the admissibility
of the course of performance, and assuming
that this evidence is credible, the language
selected by the parties has the meaning that they
had ascribed to it, and, therefore, no
inconsis-tency exists between the contract provisions and
the course of performance
A minority of jurisdictions hold that some
words have a plain meaning and, consequently,
that course of performance is inadmissible to
show their meaning when they are not
ambigu-ous Other courts reason that it is relevant to
show that there has been either a waiver, an
intentional relinquishment of a known right, or
a modification of the contract before the
application of course of performance
The concept of course of performance in the
context of contract law, along with such
concepts asCOURSE OF DEALINGand TRADE USAGE,
is derived largely from the work of ARTHUR LINTON CORBIN One of the leading theorists in the field of contract law in the twentieth century, Corbin did not believe that courts should be bound by a formal reading of the
“four corners” of the contract Corbin was instrumental in the drafting of the UNIFORM COMMERCIAL CODE (UCC), which governs com-mercial agreements and transactions in most states Under the UCC, courts may consider course of performance of the parties in order to determine, for example, whether the parties have formed a contract for the sale or lease of goods (U.C.C §§ 2-208, 2A-207)
CROSS REFERENCE Plain-Meaning Rule.
COURT
A court is a judicial tribunal established to administer justice It is also an entity in the government to which the administration of justice
is delegated In a broader sense, the term may also refer to a legislative assembly; a deliberative body, such as the General Court of Massachusetts, which
is its legislature The words court, judge, or judges, when used in laws, are often synonymous
A kangaroo court is a mock legal proceeding that disregards law and justice by issuing a biased, predetermined judgment regardless of the evidence presented before it
Judicial courts are created by the govern-ment through the enactgovern-ment of statutes or by constitutional provisions for the purpose of enforcing the law for the public good They are impartial forums for the resolution of contro-versies between parties who seek redress from a violation of aLEGAL RIGHT Both civil and criminal matters may be heard in the same court, with different court rules and procedures for each
The public has a right to attend judicial proceedings This right ensures that the pro-ceedings will be conducted in a fair and unbiased manner Anyone who wants may attend trials as a spectator unless a judge has closed a courtroom for particular proceedings
in order to maintain order, to assureDUE PROCESS
OF LAW, or to protect a witness’s identity
The U.S Judicial System consists of 52 separate court systems, plusTERRITORIAL COURTS,
in the United States All states and the District of Columbia have their own independent systems,
COURT 253
Trang 7and the United States government maintains federal courts throughout the country The federal courts and state courts are independent
of each other The federal courts are authorized
by Article III, Section 2, of the Constitution to hear controversies that especially affect federal interests Sometimes the existence of two parallel court systems in every state creates a strain and raises important issues concerning federalism, the relationship between the states and the United States For some of these questions, theSUPREME
COURT OF THE UNITED STATES makes the final determination that is binding on everyone Most courts have a multilevel structure A few states have a two-tiered system, but the federal government and most states use a three-tiered model All litigants have an opportunity to argue their cases before a trial-level court, and subse-quently they may be able to pursue the matter further up through two levels of appeals courts
In the federal court system the trial-level court is the district court Each state contains at
The First Virtual State Court
U
B
.S courts have adopted various new
technol-ogies that can assist in the administration of
justice, but the state of Michigan took the most
radical step in 2002 when it authorized the creation
of the first fully functioning cybercourt in the
country This virtual court, once fully operational,
would have allowed attorneys to file court
appear-ances, briefs, and other court documents online
Specially trained district and circuit judges would
have served three-year assignments on this court
The cybercourt in its first incarnation was to be
limited in jurisdiction to business disputes with an
amount in controversy exceeding $25,000 The court
would not use juries, as it was designed to assist
businesses that need quick resolutions of disputes,
such as those involving trade secrets Critics pointed
out that the system would not allow judges to
examine evidence physically or even to view
evidence with any certainty, given the limitations in
viewing screen resolution in many video or real-time
communications In addition, critics contended that
many business disputes involve issues of federal law
and diversity jurisdiction, thereby denying this court
the opportunity to hear many cases
The Michigan Supreme Court proposed new
rules to govern the operation of the cybercourt
These rules addressed: the filing of pleadings and
other documents via the Internet; the prevention of
tampering with electronic documents; how testimony
would be given via the Internet, videoconferencing,
or interactive video; how serving notice on parties to
a lawsuit via e-mail will work; and how court
proceedings will be made accessible to the public
The Michigan cybercourt was supposed to be operational by late 2002, but by 2003 it became apparent that the legislature would not fund it
Though no state has pursued a similar cybercourt, many state and federal jurisdictions have since adopted the electronic filing of documents, the electronic scanning of hardcopy documents, and the use of interactive television (ITV) for court hearings With improved video resolution, the day may come when such an integrated cybercourt is a reality
FURTHER READINGS Issenberg, Doug 2001 “See You in Cybercourt?” Internet World (April 1).
“Michigan Bill Will Create Cybercourt.” 2002 Associated Press (January 9) Available online at www.ap.org (accessed September 1, 2003).
“Michigan House Battles Over Cybercourt Funding.” Michigan Technology News Available online at www.mitechnews.
com/registry/technews/breakingnews.htm (accessed July 1, 2003).
“Michigan Wants to Speed Business Dispute Resolution with Cybercourt ” 2001 Associated Press (February 23) Avail-able online at www.ap.org (accessed September 1, 2003).
Stephens, Gene 2001 “Trial Run for Virtual Court.” Futurist (November-December).
“Website of the Week.” 2002 National Law Journal (February 11).
“Wired Future for Courtrooms.” 2001 Associated Press (March 1) Available online at www.ap.org (accessed September 1, 2003).
CROSS REFERENCES Courtroom Television Network; Internet
254 COURT
Trang 8least one district court, and most of these courts
have more than one judge available to try cases
Litigants may file an appeal with the U.S court of
appeals that has jurisdiction over that district if
they are unhappy with the lower court’s decision,
and the decision is the type that may be appealed
The United States is divided into 13 judicial
circuits, and one court of appeals sits in each of
twelve geographical circuits The Court of
Appeals for the Federal District sits in the
thirteenth district to hear cases formerly
enter-tained in theCOURT OF CLAIMS and the Court of
Customs and Patents Appeals, which were
abolished by the enactment of the Federal Courts
Improvement Act of 1982 (28 U.S.C.A § 1 note)
Each court of appeals has four or more judges
who sit either as panels of three or as a whole to
review the decisions of district courts and to
review or enforce the orders of many federal
administrative agencies If a court sits as a whole,
it is called anEN BANCcourt Litigants who lose a
cause in a court of appeals may be able to carry
the appeal to the U.S Supreme Court
Cases in state courts may also proceed from
the trial-level court up through appeals in an
appellate court and then to a state supreme court
Different systems assign different functions to the
state supreme court, which is usually the court of
LAST RESORT, but this is not the case in every state
When an issue based on the federal Constitution,
a treaty, or a federal statute is involved, the U.S
Supreme Court may agree to hear an appeal from
the state supreme court
The organization of a court and its personnel is
determined by the law that created that court and
by the court’s own rules Generally, the papers for
each lawsuit must be filed with the clerk of the
court The clerk and his or her staff organize all of
the records for the judges assigned to the court
Each judge may have a law secretary or law clerk,
or there may be several clerks who perform legal
research and assist in the drafting of decisions,
orders, and memoranda Court officers, court
attendants, or bailiffs are available to give
information and to maintain order and peace
around the courthouse Interpreters may be kept
on call to translate for witnesses and parties who
do not speak English well A county sheriff or
federal marshal has the responsibility for
enforce-ment of various judicial orders Probation officers
are usually civilian employees who assist the court
by administering the probation system for
crimi-nal offenders and supervise court-ordered custody
or payments of money, especiallyCHILD SUPPORT A
court stenographer, orCOURT REPORTER, creates a written record of proceedings word for word
Attorneys are called OFFICERS OF THE COURT
because they have a dual responsibility to protect the integrity of the legal system and pursue their clients’ claims An attorney who has been admitted to the bar in one state is entitled to practice in the courts of that state but that does not entitle him or her to practice in the courts of another state, in a federal court, or
in the Supreme Court In order to do so, he or she must qualify and be sworn in separately
A term is the time during which a court is authorized to hear cases, and a session is one of those periods in a term when a judge is actually hearing cases A regular term is one called for by law, and a special term may be called by a judge
or other official when the circumstances warrant it A jury may hear a case during the jury term while a motion for relief may be made
to the court during the motion term A general term sometimes means the time that all of the judges of a court sit together, or en banc, but occasionally it refers to a single judge’s hearing all of the cases on a particular subject
Laws or court rules fix the particular terms
or sessions when a court is open for judicial business If none is fixed, a court is open at all times Any JUDICIAL ACTION taken by a judge of the court is not invalid in such circumstances because of the time when it was taken, but it does not necessarily mean that the courthouse doors are unlocked 24 hours per day
Rules of CIVIL PROCEDURE and of CRIMINAL PROCEDURE regulate practice in the courts The rules spell out rights and the manner of proceeding in regard to a court’s jurisdiction and venue, the commencement of an action, parties, motions, subpoenas, pretrial discovery, juries, evidence, the order of a trial, provisional remedies, judgments, and appeals
FURTHER READINGS Hume, Robert J 2009 How Courts Impact Federal Administrative Behavior New York: Routledge.
Yackle, Larry W 2009 Federal Courts 3d ed Durham, N.C.:
Carolina Academic Press.
CROSS REFERENCE Judicial.
COURT ADMINISTRATOR
An officer of the judicial system who performs administrative and clerical duties essential to the
COURT ADMINISTRATOR 255
Trang 9proper operation of the business of a court, such as tracking trial dates, keeping records, entering judgments, and issuing process
A go-between for judges, attorneys, and clients, the court administrator essentially runs the court’s business The behind-the-scenes work of this position ranges from scheduling trial dates to handling all official correspon-dence Courts produce volumes of paper; the administrator’s office processes them, accepting lawsuit filings, authenticating court documents, and issuing writs and summonses Formerly known as the clerk, the post has evolved since the mid-1980s as technology has streamlined some elements of the justice system
State and county administrators do essen-tially the same job Unlike those in past decades, nearly all administrators in the early 2000s are appointed by judges Judicial appointment has helped take politics out of this powerful position, and by the mid-1990s, only the state of Montana still preserved an elected post for its court administrator State administrators oper-ate under statutory authority that entitles them
to execute court affairs and provides an annual staff budget County-level administrators are generally chosen by committee, with funding for their offices commonly generated by court fees
Contemporary trends in court management have reshaped this traditional office
Technolo-gy has led the change: where once courts relied entirely on paper records, computer databases are fast becoming the norm For example, using computer software to track trial dates has begun
to replace the ancient practice of relying on the court docket Beyond allowing for greater flexibility, this new method also turns the tables
on lawyers who have customarily controlled the pace of cases A related trend in the mid-1990s, introduced by Minnesota, is toward uniformity:
the state’s General Rules of Practice place all jurisdictions under the same uniform rules, aiming to save time in scheduling as well as ensuring that local attorneys have no advantage over out-of-state attorneys
COURT COMMISSIONERS Persons appointed by a judge to find facts, to hear testimony, or to perform a specific function connected with certain types of cases
An attorney, a judge, a retired judge, or any person with the background necessary to com-prehend complex legal matters may be a court
commissioner, although a court commissioner
is not a judge The court that the court commissioner serves ordinarily reviews his or her decisions
Commissioners may take testimony in hearings to determine the validity of a will; proceedings concerning the entry of default judgments or stipulations; pretrial conferences
in criminal cases; or proceedings involving family court petitions to modify alimony or
CHILD SUPPORT State law governs the powers of court commissioners
COURT HAND
In old English practice, the peculiar style and form
of writing in which court records were transcribed from the earliest period to the reign of George II, circa 1760
This form of Latin shorthand was character-istically concise, strong, and absolutely uniform even though it was handwritten Due to the numerous and unusual abbreviations and con-tractions, proficiency in the art of court hand was
an important step in entering the “clerkship” profession Court hand imported to the ancient record the essential quality of durability
COURT-MARTIAL
A tribunal that tries violations of military criminal law It often refers to the entire military justice pro-cess, from actual court proceedings to punishment First established in eighteenth-century U.S law, the court-martial is today the result of tremendous modernization that has made it similar to a trial in federal district court Defendants are presumed innocent until proven guilty, accorded considerable legal protections, and guaranteed the right to appeal The court-martial is governed by the UNIFORM CODE OF MILITARY JUSTICE (10 U.S.C.A §§ 801–940), a federal law that Congress originally passed in
1950, but that legislators, presidents, and the U.S Supreme Court have since changed several times Significant reforms of the court-martial now grant military defendants essentially the same due process rights that are afforded defendants in civilian courts
The Uniform Code of Military Justice vests
in thePRESIDENT OF THE UNITED STATESthe authority
to draft and to amend the Manual for Courts-Martial, United States (10 U.S.C.A §§ 801-946) This document includes a number of procedural rules in the military justice system, including the
256 COURT COMMISSIONERS
Trang 10Rules for Courts-Martial and Military Rules of
Evidence These rules are practiced by judge
advocates, who serve as the attorneys in the
military justice system Whereas many of the
rules are similar or analogous to procedural rules
in the civil justice system, such as the Federal
Rules of CRIMINAL PROCEDURE and the FEDERAL
RULES OF EVIDENCE, the military rules provide
specific rights and procedures that do not have
civil counterparts In 1998 President WILLIAM
JEFFERSON CLINTON approved several
amend-ments to the Manual, including those related
to pre- and post-trial confinement, trials,
sentencing, substantive criminal offenses and
defenses, post-trial procedures, and the
au-thority of theJUDGE ADVOCATEGeneral
Three levels of courts exist in the military
justice system: military trial courts, courts of
military review, and the U.S Court of Military
Appeals Courts-martial are handled by the
lowest courts, which are presided over by
military trial judges who are quite similar to
U.S district court judges These judges are
commissioned officers selected by judge
advo-cates according to rules established by Congress,
and their responsibility for individual
cases begins and ends with the court-martial
process The military trial courts are organized by
the type of courts-martial that they address—
summary, special, and general, which reflect
increasingly serious charges and punishments
Just as trials in civilian criminal courts are
the result of work by police officers and
prosecutors, courts-martial are preceded by a
formal investigation During questioning,
mili-tary suspects have the same FIFTH AMENDMENT
right to remain silent, as do civilians, as well as
some additional rights Civilian police officers
must read a suspect the Miranda rights at the
time of arrest Article 31 of the Uniform Code
of Military Justice requires military investigators
to go even further: As soon as suspicion focuses
on a suspect during interrogation, they must
advise him or her of the right to remain silent
This stringent requirement places a higher
burden on military investigators to protect
suspects’ rights, and later it can become grounds
for the dismissal of charges if it is not followed
Military laws provide generous protections
to defendants before a case goes to trial These
include complete pretrial discovery, allowing
defendants free access to witnesses and
evi-dence, as well as a requirement that prosecutors
reveal the names of witnesses who will be called
during all stages of the trial In addition, the government must provide defendants with expert witnesses at its own expense; judges may delay or dismiss trials if prosecutors fail to
do so The military judge is empowered to hear pretrial motions on a broad range of issues, ranging from alleged violations of the defen-dant’s constitutional rights to the admissibility
of evidence Before the case is heard, defendants have the choice of trial by judge or jury, and enlisted members can request that at least one-third of the court be enlistees Defendants may also elect to be provided with military counsel
or to hire a civilian attorney
The court-martial closely resembles a trial in federal court Military judges have the same authority as federal judges to rule on all matters
of law and to give orders to the prosecution and the defense on such procedural matters as arguments, motions, and challenges Two differ-ences are particularly significant First, whereas few civilian courts allow jurors to pose questions
to witnesses, military courts have long permitted the practice Jurors may submit written ques-tions, which both the prosecution and the defense read in order to prepare any possible objections, which also must be in writing The judge then decides which questions to allow
Second, military judges have a greater duty than
do federal judges to review a defendant’s entry
of a guiltyPLEA This duty is designed to protect defendants from pleading guilty because of coercion, which could be more likely in the military because of its strict code of discipline and obedience to authority MILITARY LAW
requires judges to reject the plea at any stage
of a proceeding if any hint of coercion is found
The right to appeal convictions in military courts is different from that in civilian courts
Options for appeal are determined by the type of court-martial: Summary court-martial convictions, which are for lesser offenses, offer only the right to appeal to the commander who convened the court, and to make a further petition for review to the judge advocate general
Convictions in special and general courts-martial can be appealed to higher authorities, but the type of sentence handed down also governs a convicted party’s rights If the sentence is less than six months’ confinement or a bad-conduct discharge, the case is reviewed by a legal officer in the convening authority’s staff judge advocate’s office, with no further appeals other than a right
to petition the judge advocate general
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