The power of judicial review also permits federal courts to compel government officials to take action in accordance with constitutional principles, as the Supreme Court did when it orde
Trang 1Generally there are two types of involuntary manslaughter: (1) criminal-negligence man-slaughter; and (2) unlawful-act manslaughter
The first occurs when death results from a high degree of NEGLIGENCE or recklessness, and the second occurs when death is caused by one who commits or attempts to commit an unlawful act, usually a misdemeanor
Although all jurisdictions punish involun-tary manslaughter, the statutes vary somewhat
In some states, the criminal negligence type of manslaughter is described as gross negligence or culpable negligence Others divide the entire offense of manslaughter into degrees, with voluntary manslaughter constituting a more serious offense and carrying a heavier penalty than involuntary manslaughter
Many statutes do not define the offense or define it vaguely in common-law terms There are, however, a small number of modern statutes that are more specific Under one such statute, the offense is defined as the commission
of a lawful act without proper caution or requisite skill, in which one unguardedly or undesignedly kills another or the commission of
an unlawful act that is not felonious or tends to inflict great bodily harm
Criminally Negligent Manslaughter A homi-cide resulting from the taking of an unreason-able and high degree of risk is usually considered criminally negligent manslaughter Jurisdictions are divided on the question of whether the defendant must be aware of the risk Modern criminal codes generally require a conscious-ness of risk, although, under some codes, the absence of this element makes the offense a less serious homicide
There are numerous cases in which an omission to act or a failure to perform a duty constitutes criminally negligent manslaughter
The existence of a duty is essential Since the law does not recognize that an ordinary person has
a duty to aid or rescue another in distress, an ensuing death from failure to act would not be manslaughter On the other hand, an omission
in which one has a duty, such as the failure of a lifeguard to attempt to save a drowning person, might constitute the offense
When the failure to act is reckless or negligent, and not intentional, it is usually manslaughter
If the omission is intentional and death is likely or substantially likely to result, the offense might be murder When an intent to kill,
recklessness, and negligence are present, no offense is committed
In many jurisdictions, death that results from the operation of a vehicle in a criminally negligent manner is punishable as a separate offense Usually it is considered a less severe crime than involuntary manslaughter Although criminal negligence is an element, it is generally not the same degree of negligence as that which
is required for involuntary manslaughter For example, some vehicular homicide statutes have been construed to require only ordinary negli-gence while, in a majority of jurisdictions, a greater degree of negligence is required for involuntary manslaughter
Unlawful-Act Manslaughter In many states, unlawful-act manslaughter is committed when death results from an act that is likely to cause death or serious physical harm to another person In a majority of jurisdictions, however, the offense is committed when death occurs during the commission or attempted commis-sion of a misdemeanor
In some states, a distinction is made between conduct that is malum in se, bad in itself and conduct that is malum prohibitum, bad because prohibited by law In these states, the act that causes the death must be malum in
se and a felony in order for the offense to constitute manslaughter If the act is malum prohibitum, there is no manslaughter unless it was foreseeable that death would be a direct result of the act In other states that similarly divide the offense, the crime is committed even though the act was malum prohibitum and a misdemeanor, especially if the unlawful act was
in violation of a statute that was intended to prevent injury to other persons
Punishment The penalty for manslaughter is imprisonment The precise term of years depends upon the applicable statute Usually the sentence that is imposed for voluntary manslaughter is greater than that given for involuntary manslaughter In most states, a more serious penalty is imposed for criminally negligent manslaughter than for unlawful-act manslaughter
FURTHER READINGS Milgate, Deborah E 1998 “The Flame Flickers, but Burns On: Modern Judicial Application of the Ancient Heat of Passion Defense ” Rutgers Law Review 51 (fall).
Trang 2Miller, Emily L 2001 “(Wo)manslaughter: Voluntary
Man-slaughter, Gender, and the Model Penal Code ” Emory
Law Journal 50 (spring).
Miller, Henry 1975 Human Error: The Road to Disaster.
Chatsworth, Calif.: Canyon.
CROSS REFERENCE
Deadly Force.
MANUFACTURES
Items of trade that have been transformed from
raw materials, either by labor, art, skill, or machine
into finished articles that have new forms, qualities,
or properties
For example, a blouse that is made of raw silk
would be considered a manufacture, whereas
fresh vegetables sold on a farm would not
Whether particular products are within the
definition of manufactures becomes significant
with respect to taxes and other regulations
imposed upon manufacturers
MAPP V OHIO
A landmark Supreme Court decision, Mapp v
Ohio, 367 U.S 643, 81 S Ct 1684, 6 L Ed 2d
1081 (1961), established the rule that evidence
that has been obtained by an illegal SEARCH AND
SEIZURE cannot be used to prove the guilt of a
defendant at a state criminal trial
Police officers went to the home of Dollree
Mapp in an attempt to find someone who was
wanted for questioning about a recent bombing
When they demanded entrance to the house, Mapp
called her attorney and refused to allow the police
to enter without aSEARCH WARRANT Subsequently
the police officers became rough with Mapp and
handcuffed her Upon a search of the house, they
found obscene books, pictures, and photographs
for the possession of which the defendant was
subsequently prosecuted and convicted
The defendant brought an unsuccessful
action challenging the constitutionality of the
search An appeal was made to the Ohio
Supreme Court, which affirmed the judgment
The defendant appealed to the U.S Supreme
Court, which reversed the decision on the
ground that evidence obtained by an
unconsti-tutional seizure was inadmissible
The Court was extremely critical of the
actions of the police and held that the
defen-dant’s privacy had been unconstitutionally
invad-ed The police tactics were deemed comparable
to a confession forced out of a fearful prisoner
The Court ruled that to compel respect for the constitutional right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, it was necessary to exclude illegally obtained evidence from the consideration of the trial court
The Supreme Court had ruled, as early as
1886, that any illegally obtained evidence could not be introduced in federal courts This principle, known as theEXCLUSIONARY RULE, was initially applied to state criminal prosecutions in Mapp The Court made note of the fact that, in other instances, various states had attempted to prevent illegal police searches by other means, but the exclusionary rule is, in the opinion of the Supreme Court, the only effective means of protecting citizens from illegal searches con-ducted by government agents
CROSS REFERENCE Criminal Procedure.
MARBURY V MADISON Marbury v Madison, 5 U.S (1 Cranch) 137, 2 L
Ed 60 (1803), established the power ofJUDICIAL REVIEWin the U.S Supreme Court This power, which was later extended to all federal courts, authorizes the federal judiciary to review laws enacted by Congress and the president and to invalidate those that violate the Constitution
The power of judicial review also permits federal courts to compel government officials to take action in accordance with constitutional principles, as the Supreme Court did when it ordered President RICHARD M NIXON to release tapes he had made of conversations at the White House regarding a series of scandals that began with the BURGLARY of the Democratic party’s national headquarters in the Watergate office complex in June 1972 Finally, judicial review empowers federal courts to decide legal issues raised by state constitutions, statutes, and common-law decisions that touch upon a federal constitutional provision
Judicial review is also routinely exercised by state courts over state and federal constitutional questions Unlike the federal power of judicial review, which derives from Marbury, the state power of judicial review usually derives from an express provision in a state constitution
Marbury was an outgrowth of political struggles between the Federalist and Republican parties during the late eighteenth and early
Trang 3nineteenth centuries in the United States These struggles began as a dispute between the Federalists and Anti-Federalists over the ratifi-cation of the Constitution
The Federalists, including ALEXANDER HAMIL-TONand JOHN JAY, supported ratification of the Constitution as a means of creating a stronger national government that would replace the feeble central government formed under the
ARTICLES OF CONFEDERATION The Federalists believed that a strong national government was necessary to promote economic growth and geographic expansion and to protect U.S
citizens from internal and external aggression
The Anti-Federalists, including GEORGE MASON
andPATRICK HENRY, opposed ratification because they feared it would create a despotic national government that would vitiate state sovereignty and be unresponsive to local interests
After the Constitution was ratified by the states, many disgruntled Anti-Federalists joined
the REPUBLICAN PARTY Like their Anti-Federalist predecessors, the Republicans worked to curtail further growth of the national government, drawing their constituency from farmers and mechanics The Federalists, meanwhile, sought
an increased role for the national government, including the establishment of a federal bank, and drew their constituency from wealthy property owners and mercantilists
During the administration of JOHN ADAMS
(1797–1801), Federalists controlled the execu-tive and legislaexecu-tive branches of the federal government and permeated the federal judiciary
as well However, the political tides turned against the Federalists during the elections of
1800, when the Republicans wrested control of both houses of Congress andTHOMAS JEFFERSON, their party leader, was elected president Deter-mined not to lose all its influence over the national government, the lame-duck Federalist Congress passed legislation that created a host
of new federal judgeships and called for the appointment of 42 justices of the peace in the District of Columbia
In the haste of filling these vacancies during the waning hours of his last night in office, President Adams neglected to deliver the com-missions (warrants issued by the government authorizing a person to perform certain acts) of several appointees One of the so-called midnight appointees who did not receive his commission was William Marbury After Jefferson ordered Secretary of State JAMES MADISON to withhold Marbury’s commission, Marbury petitioned the Supreme Court for a writ ofMANDAMUS(a court order requiring an official to perform his duties)
to compel Madison to deliver the commission The case was heard before Chief JusticeJOHN MARSHALLand four associate justices Marshall was one of the “midnight judges” President Adams had appointed to the federal bench during his last few months in office Prior to his appointment
to the Supreme Court, Marshall had served as secretary of state for the Adams administration Ironically, it was Marshall who, serving in a dual capacity as the secretary of state and chief justice, had failed to deliver the commission to Marbury None of these facts presented a sufficient conflict of interest for Marshall to disqualify himself from hearing the dispute Marshall’s opinion, written for a unanimous Court, was divided into five parts, the first three being the least controversial First, the Court
The show-cause order
served on James
Madison was
damaged in the
Capital fire of 1898.
NATIONAL ARCHIVES
AND RECORDS
ADMINIS-TRATION
Trang 4held that Marbury had a legal right to serve as
JUSTICE OF THE PEACE and was entitled to receive
the commission memorializing that right
Mar-bury had been nominated for the office by the
president and confirmed by the Senate, in
accordance with the procedures set forth in
the Constitution When President Adams signed
the commission and affixed the seal of the United
States to it, the appointment was “complet[e].”
Delivery of the commission was a mere
“con-venience” that did not interfere with Marbury’s
legal right
Second, the Court ruled it was a “plain
violation” of this right for Madison to withhold
the commission When a commission has been
signed and sealed by the EXECUTIVE BRANCH
following a nominee’s appointment and
confir-mation, the secretary of state, Marshall said, has
a“duty” to “conform to the law” and deliver it
as part of his“ministerial” responsibilities
Third, the Marshall opinion said a writ of
mandamus was the proper remedy because
mandamus is a “command” directing “any
person, corporation or inferior court of
judica-ture to do some particular thing which
appertains to their office and duty.”
Marshall’s opinion next addressed the
question of whether the Supreme Court had
the power to issue Marbury the writ This
question turned on the Court’s jurisdiction
Article III of the U.S Constitution confers upon
the Supreme Court two types of jurisdiction:
original and appellate Original jurisdiction
gives courts the power to hear lawsuits from
their inception, when a complaint or petition is
“originally” filed with the tribunal Appellate
jurisdiction gives courts the power to review
decisions that were made by lower courts and
have been “appealed” in order to reverse a
purported error Under Article III, the Supreme
Court has original jurisdiction over politically
sensitive disputes such as those “affecting
ambassadors” or those in which one of the 50
states is named as a party In all other cases, the
Supreme Court retains appellate jurisdiction
In petitioning the Supreme Court directly
for a writ of mandamus, Marbury was asking
the Court to invoke its original jurisdiction
pursuant to section 13 of the JUDICIARY ACT OF
1789, which authorized all federal courts to
issue such writs “in cases warranted by the
principles and usages of law.” Yet Marbury was
not an ambassador or state government entitled
to have the Supreme Court hear the case under its original jurisdiction As a consequence, Marshall opined that section 13 impermissibly attempted to enlarge the Supreme Court’s original jurisdiction to include disputes such
as those presented by Marbury v Madison, in contravention of the constitutional limitations placed on that jurisdiction by Article III
However, Marshall suggested that merely because a piece of legislation violates a consti-tutional principle does not necessarily mean that the legislation is unenforceable.“[W]hether
an act repugnant to the constitution can become law of the land,” Marshall noted, “is a question deeply interesting to the United States.” Observing that the Constitution ex-pressly delegates and limits the powers of Congress, Marshall asked, “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to
be restrained?”
Marshall argued that the “distinction be-tween a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.” Marshall continued:
It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act Between these alternatives there is no middle ground The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable
For Marshall, the idea that an unconstitu-tional act of legislature could “bind the courts and oblige them to give it effect” was “an absurdity too gross to be insisted on.” Thus, Marshall concluded that congressional legislation contrary to the federal Constitution is null and void and cannot be enforced by a court of law
Having ruled that the Judiciary Act of 1789 was invalid and unenforceable, Marshall next asked whether the judiciary was the appropriate
Trang 5branch to be vested with authority to overturn unconstitutional legislation Although it is commonly accepted in the early 2000s that the power to nullify state and federal statutes falls within the purview of the judicial branch of government, the Constitution does not specifi-cally delegate this power to any one branch
Under the explicit provisions of the Constitu-tion, then, the executive and legislative branches might have argued in 1803 that they were no less entitled than the judicial branch to be entrusted with the power of judicial review
The Court rejected this idea:
It is emphatically the province and duty of the judicial department to say what the law
is Those who apply the rule to particular cases must of necessity expound and inter-pret that rule If two laws conflict with each other, the courts must decide on the opera-tion of each So if a law be in opposiopera-tion to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitu-tion, disregarding the law: the court must determine which of these conflicting rules governs the case This is of the very essence
of judicial duty
Marshall was arguing that it was the historical role of courts to settle legal disputes
by interpreting and applying the law In some instances, the applicable statutory or COMMON LAW has conflicted with other laws, Marshall said, and it has been the obligation of courts to resolve“the operation of each.”
Earlier in his opinion, the chief justice had described the federal Constitution as a special kind of law that was“paramount” to all other laws in the United States It then followed, the chief justice reasoned, that courts carried the responsibility to interpret and apply the Con-stitution’s provisions This responsibility inevita-bly entailed review of cases where laws passed by the legislative and executive branches conflicted with the strictures of the Constitution By resolving such conflicts, Marshall maintained, courts were doing nothing more than fulfilling their traditional role of settling legal disputes
Marshall also questioned whether members
of the legislative and executive branches could objectively evaluate the constitutionality of legislation they passed It is sometimes said that
a diner, not the cook, is the best judge of a meal
Following the same reasoning, Marshall hinted
that the legislative and executive branches could not impartially review legislation that they had helped prepare or enact It is far from clear, for example, whether the Federalists in Congress who supported the Judiciary Act of 1789 could have put aside their partisan views long enough
to exercise the power of judicial review over the Marbury dispute in a fair and neutral manner
Chief Justice Marshall’s opinion in Marbury has been the object of much criticism Consti-tutional historians claim that Marbury repre-sents a paradigm of judicial activism, which is marked by judges who decide cases based on issues not argued before them This criticism seems to be particularly apt when applied to Marbury because, as constitutional scholar Leonard W Levy has pointed out, “[In] no other case in our constitutional history has the Court held unconstitutional an act of Congress whose constitutionality was not at issue.” Neither Marbury nor Madison had attacked the constitutionality of the Judiciary Act Against this criticism, historians have weighed the dilemma confronting Chief Justice Marshall As a Federalist appointed to the Supreme Court, Marshall attempted to facilitate the growth of the national government through his judicial opinions To achieve this end, Marshall aspired to establish the Constitution
as the supreme law of the land, under which the executive, legislative, and judicial branches of both state and federal governments would be subordinate He also hoped to establish the Supreme Court as the ultimate arbiter of the Constitution, providing the final word on the meaning and application of any constitu-tional principles
Marshall realized that none of these aspira-tions would be realized unless the Supreme Court gained respect and acceptance from Congress and the president After all, the Supreme Court depended on the executive branch to enforce its decisions PresidentANDREW JACKSONonce under-scored this point when he exclaimed, “John Marshall has made his decision [in Worcester v Georgia, 31 U.S (6 Pet.) 515, 8 L Ed 483 (1832)], now let him enforce it!” (as quoted in Coleman v United States Bureau of Indian Affairs, 715 F.2d
1156[7th Cir 1983])
Marshall also needed to curry the favor of Congress, which possessed the power to limit the appellate jurisdiction of the Supreme Court
Trang 6under Article III, Section 2, of the Constitution.
In addition, Congress possessed the power to
impeach the Supreme Court justices, a power
that it unsuccessfully exercised in 1805 when
the Senate acquitted Federalist justice SAMUEL
CHASEof wrongdoing
Marbury was the powder keg threatening to
upset the delicate relationships between the
coordinate branches of the federal government
Marshall understood that on the one hand, if the
Court ordered Madison to deliver the commission
to Marbury, the Jefferson administration might
ignore the order and tarnish the Court’s
reputa-tion by exposing it as an impotent institureputa-tion On
the other hand, if the Court ruled in favor of
Madison, Marbury and the Federalists who had
appointed and confirmed him would suffer a
humiliating defeat In either instance, the
execu-tive branch would be perceived as preeminent
The chief justice’s solution to this dilemma
was what one constitutional scholar has called a
“masterwork of indirection, a brilliant example
of Marshall’s capacity to sidestep danger while
seeming to court it, to advance in one direction
while his opponents are looking in another”
(McCloskey 1960, 40) Marshall’s opinion in
Marbury denied a Lilliputian power to the
Supreme Court with one hand, while grabbing
a titanic power for the judicial branch with the
other
By rejecting Marbury’s claim on the ground
that the Supreme Court did not have original
jurisdiction to issue the writ of mandamus
under the Constitution, Marshall established
the power of judicial review in the nation’s
highest court While appeasing the Jeffersonian
Republicans with a victory over President Adams
in the battle over the president’s midnight
appointments, Marshall introduced the idea
that the federal Constitution is the fundamental
law underlying both the state and federal
governments In striking down a section of the
Federalist-supported Judiciary Act, Marshall
identified the Supreme Court as the
authorita-tive interpreter of the Constitution
Each of these accomplishments set the stage
for a gradual accretion of power, respect, and
prestige in the federal judiciary As the power of
the federal judiciary increased, so did the power
of the entire federal government, something
that proved important in President Abraham
Lincoln’s efforts to preserve the Union during
the Civil War
FURTHER READINGS Curtis, Kent 2003 “Judicial Review and Populism.” Wake Forest Law Review 38 (summer).
Levy, Leonard W 1988 Original Intent and the Framers’
Constitution New York: Macmillan.
McCloskey, Robert G 2004 The American Supreme Court.
Chicago: Univ of Chicago Press.
Nelson, William E 2000 Marbury v Madison: The Origins and Legacy of Judicial Review Lawrence: Univ Press
of Kansas.
Randolph, Ryan 2004 Marbury v Madison: The New Supreme Court Gets More Power New York: Rosen.
Stites, Frances N 1997 John Marshall: Defender of the Constitution Reading, MA: Addison-Wesley.
Wellington, Harry H 1992 Interpreting the Constitution: The Supreme Court and the Process of Adjudication New Haven, CT: Yale.
Wills, Mary, ed 1982 The Federalist Papers, by Alexander Hamilton, James Madison and John Jay No 78 New York: Bantam.
Wolfe, Christopher 1997 Judicial Activism: Bulwark of Freedom or Precarious Security Lanham, MD: Rowman
& Littlefield.
Yoo, John C., and Saikrishna B Prakash 2003 “The Origins
of Judicial Review ” Univ of Chicago Law Review 70 (summer) Available online at http://papers.ssrn.com/
sol3/papers.cfm?abstract_id=426860; website home page: http://papers.ssrn.com (August 12, 2009).
CROSS REFERENCES Congress of the United States; Constitution of the United States; Judicial Review; “Marbury v Madison” (Appendix, Primary Document); Separation of Powers; Supreme Court
of the United States.
MARGIN The edge or border; the edge of a body of water where it meets the land As applied to a boundary line of land, the margin of a river, creek, or other watercourse means the center of the stream But in the case of a lake, bay, or natural pond, the margin means the line where land and water meet
In finance, the difference between market value of loan collateral and face value of loan
A sum of money, or its equivalent, placed in the hands of aBROKER by the principal or person
on whose account a purchase or sale ofSECURITIES
is to be made, as a security to the former against losses to which he or she may be exposed by subsequent fluctuations in the market value of the stock The amount paid by the customer when he uses a broker’s credit to buy a security
In commercial transactions the difference between the purchase price paid by an interme-diary or retailer and the selling price, or difference between price received by manufacturer for its goods and costs to produce Also called gross profit margin
Trang 7MARGIN CALL
A demand by aBROKER that an investor who has purchasedSECURITIESusing credit extended by the broker (on margin) pay additional cash into his
or her brokerage account to reduce the amount of debt owed
A broker makes a margin call when the stocks in the account of the client have fallen below a particular percentage of their market price at the time of purchase, thereby increasing the outstanding debt and the broker’s liability should the client become unable to pay This process is also known as remargining
A broker might also make a margin call when
a client desires to make additional purchases
of stock and securities
vMARIS, ALBERT BRANSON Albert Branson Maris, a federal judge for 50 years, brought his quiet, scholarly leadership to the 1947 and 1948 recodifications of the U.S Criminal and Judicial Codes Because of his ongoing commit-ment to the revision and modernization of civil, criminal,BANKRUPTCY, and judicial codes, Maris is often called the father of modernized judicial procedure in the United States He not only helped to shape federal JURISPRUDENCE in this country but also was instrumental in the development of the laws and judicial systems of Guam and the U.S Virgin Islands
Maris was born in Philadelphia on Decem-ber 19, 1893 Descendants of Quaker colonists, Maris and his family were also members of the Society of Friends Maris studied at the Friends Select School, and later the Westtown School, attended by his father and grandfather
Mindful of his responsibility to his widowed mother and younger siblings, Maris made no plans to attend college after graduating from Westtown He enrolled in a business course offered by a Scranton, Pennsylvania, correspon-dence school and entered the workforce as a clerk for an insurance company He then took night courses at Temple University, passed the college entrance exam, and went on to study law Maris received his law degree from Temple University Law School—and married Edith Robinson on the same day—in 1917 The esca-lation ofWORLD WAR Idelayed thePRACTICE OF LAW
for Maris He served in an Army artillery unit as
an enlisted man and later became an officer After the war, Maris entered private practice near Philadelphia He also returned to school and earned a diploma from Drexel University Engineering School in 1926 He served as auditor of the borough of Lansdowne, Pennsyl-vania, from 1928 to 1934 and as councilman of the borough of Yeadon, Pennsylvania, from
1935 to 1936 After 18 years of private practice and community service, Maris was appointed U.S district judge for the Eastern District of Pennsylvania by PresidentFRANKLIN D.ROOSEVELT
on June 22, 1936 Two years later, he was elevated to the U.S Court of Appeals for the Third Circuit, which handles appeals of federal cases from Pennsylvania, New Jersey, Delaware, and the Virgin Islands
Maris’s decisions were rarely appealed and almost never overturned Minersville School District v Gobitis, 108 F.2d 683 (3d Cir 1939), was among the few cases in which his ruling was challenged In 1938, the children of William Gobitis and Lily Gobitis were expelled from
Albert Branson Maris 1893–1989
❖
1893 Born,
Philadelphia, Pa.
◆
1914–18 World War I
1917 Earned J.S.
from Temple University Law School; joined Army
1928–34 Served as auditor of Lansdowne, Pa.
◆
1936 Appointed U.S district judge for the Eastern District of Pa.
1939 Declared mandatory flag-salute rule unconstitutional in Minersville
School District v Gobitis (overruled by Supreme Ct in 1940)
1939–45 World War II
1943 Supreme Court reversed itself and affirmed Maris's
Gobitis ruling in West Virginia Bd of Ed v Barnette
1961–73 Vietnam War
❖
1989 Died, Lansdale, Pa.
◆
1975 Served as special
master in United
States v Maine
◆
1967 Stepped down from Judicial Code Committee;
served as special master in Wisconsin v Illinois
1958 Took senior (semi-retired) status from Third Circuit
1950–53 Korean War
1947–48 Spearheaded recodification
of U.S Criminal and Judicial codes 1942–62 Served on U.S Emergency Court of Appeals 1938–58 Served on U.S Court of Appeals for the Third Circuit
◆
TO PERMIT PUBLIC
OFFICERS TO
DETERMINE WHETHER
THE VIEWS OF
INDIVIDUALS
SINCERELY HELD AND
THEIR ACTS
SINCERELY
UNDERTAKEN ON
RELIGIOUS GROUNDS
ARE IN FACT BASED
ON CONVICTION
RELIGIOUS IN
CHARACTER WOULD
BE TO SOUND THE
DEATH KNELL OF
RELIGIOUS LIBERTY
—A LBERT M ARIS
Trang 8school for refusing, on religious grounds, to
recite the Pledge of Allegiance The Gobitises
filed a lawsuit in federal court, claiming that
local regulations enforcing recitation of the
pledge violated their FIRST AMENDMENT rights
Maris declared the school district’s regulations
unconstitutional But when the case was
appealed to the Supreme Court, the justices
overruled Maris by an 8–1 vote An opportunity
to challenge the Gobitis ruling eventually made
its way through the courts when two sisters
faced a similar issue in West Virginia (West
Virginia State Board of Education v Barnette,
319 U.S 624, 63 S Ct 1178, 87 L Ed 1628
[1943]) When that case reached the Supreme
Court, two justices who had participated in the
Gobitis decision were now retired With two
new justices, the High Court reversed itself,
ruling as Maris had in the Gobitis case
In addition to his Third Circuit duties,
Maris served on theTEMPORARY EMERGENCY COURT
OF APPEALSduringWORLD WAR IIand the postwar
years (This court decided cases throughout the
United States that arose from temporary
legislation enacted by Congress to facilitate the
war effort.) Maris served the temporary court as
needed for the next twenty years and eventually
became its chief judge His work on this court
broadened his interest in the crafting of
legislation and the CODIFICATION of laws This
interest led to an appointment as chairman of
the U.S Judicial Conference Committee on
Revision of the Laws in 1944
His committee spearheaded the
much-needed recodifications of the U.S Criminal
and Judicial Codes in 1947 and 1948 As
committee chairman, he oversaw the ongoing
revision and modernization of civil, criminal,
bankruptcy, and appellate rules of procedure
until 1967, when he stepped down Even the
modest Maris admitted that the adoption of his
committee’s work in 1947 and 1948 was a
milestone in the improvement of JUDICIAL
ADMINISTRATION
In the early 1950s Maris began to cultivate
an interest in INTERNATIONAL LAW Shortly after
World War II, the U.S INTERIOR DEPARTMENT
asked Maris to study the legal and judicial
systems of the islands and trust territories of the
South Pacific He did, and he made
recommen-dations that were well received at home and
abroad Throughout the 1950s, he worked
tirelessly with the Virgin Islands, Guam, the
Trust Territory of the Pacific Islands, and
American Samoa to draft and enact legislation
creating and revising their court systems and
procedures In conjunction with his interna-tional work, he served as a member of the U.S
Advisory Committee on International Rules of Judicial Procedure from 1959 to 1963, and as a member of the Advisory Committee to the
SECRETARY OF STATEon Private International Law from 1964 to 1967
Maris took senior (or semiretired) status on December 31, 1958 As a senior judge, he served
as SPECIAL MASTER under appointment of the U.S Supreme Court in a number of significant and complex cases—including land and water claims cases between states and between states and the federal government (see, e.g., Wisconsin
v Illinois, 388 U.S 426, 87 S Ct 1774, 18 L Ed
2d 1290[1967]; United States v Maine, 420 U.S
515, 95 S Ct 1155, 43 L Ed 2d 363[1975]) He continued to hear and rule on almost one hundred cases per year for the next 25 years
Maris died on February 7, 1989, in Lansdale, Pennsylvania
MARITAL Pertaining to the relationship of HUSBAND AND WIFE; having to do with marriage
Marital agreements are contracts that are entered into by individuals who are about to be married, are already married, or are in the process of ending a marriage They ordinarily govern the division and ownership of marital property
MARITAL COMMUNICATIONS PRIVILEGE
The right given to aHUSBAND AND WIFEto refuse to testify in a trial as to confidential statements made
to each other within and during the framework of their spousal relationship
The marital communications privilege is a right that only legally married persons have in court Also called the husband-wife privilege, it protects the privacy of communications be-tween spouses The privilege allows them to refuse to testify about a conversation or a letter that they have privately exchanged as marital partners
The marital privilege is an exception to the general rule that all relevant evidence is admissible at trial Similar privileges exist for communications between priest and penitent (one who has confided in the priest), attorney and client, and doctor and patient Privileges exclude evidence from trial in order to advance some social goal With the marital privilege, the
Trang 9goal of free and open communication between spouses, which is believed to strengthen and further the marital relationship, is given greater weight than the need for evidence (the infor-mation exchanged by the spouses) to resolve a legal dispute
The marital communications privilege orig-inated at COMMON LAW It was made formal in the English Evidence Amendment Act of 1853, which said that neither husbands nor wives could be forced to disclose any communication made to the other during the marriage In the United States, the privilege came to be recog-nized in state andFEDERAL RULES OF EVIDENCE By the twentieth century, the U.S Supreme Court said that it was“regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administra-tion of justice” (Wolfle v United States, 291 U.S
7, 54 S Ct 279, 78 L Ed 617[1934])
The marital communications privilege is available in most jurisdictions Most jurisdic-tions offering it allow a witness spouse to choose whether to testify; some automatically disqualify evidence from a spouse
The privilege is not absolute Because its effect is to deny evidence at trial, courts generally interpret it narrowly
The most important condition for its use is
a legal marriage Courts will not permit its use
by partners who merely live together or by those who have aCOMMON-LAW MARRIAGEor a sham, or false, marriage Moreover, the communication must have taken place while the marriage existed, not after a DIVORCE Generally, the determination of whether a marriage is legal depends on state law
The privilege also cannot be claimed in certain situations, such as where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple In addition, the presence of third persons at the time of the communication usually eliminates confidentiality and thus destroys the privilege, although courts have granted exceptions for the presence of children
Many jurisdictions make the distinction of which spouse“holds,” and may therefore assert, the privilege—the defendant spouse or the witness spouse In these jurisdictions, the spouse who holds the privilege may waive it and testify against the other spouse
FURTHER READINGS Allen, Ronald J., et al, eds 2006 Evidence: Text, Problems, and Cases Frederick, MD: Aspen.
Best 2007 Evidence Examples & Explanations Frederick, MD: Aspen.
Pappa, Kristina K 1995 “Note: Evidence—Privileged Communications ” Seton Hall Law Review 25 Statsky, William 2001 Family Law Eagan, MN: West CROSS REFERENCES
Attorney-Client Privilege; Privileged Communication; Tes-timony.
MARITIME LIEN The right of a particular individual to compel the sale of a ship because he or she has not been paid a debt owed to him or her on account of such vessel
A maritime lien is designed to furnish security to a creditor and to enable a person
to obtain repairs and supplies even in the event that the ship is a distance away from its owners and no significant amount of money is on board
to pay for the goods and services that are provided
Maritime liens are distinguishable from a majority of other types of liens since the creditor need not retain possession of the boat before asserting a claim They can exist only on movable objects that bear some relationship to navigation or commerce on NAVIGABLE WATERS: for example, every part of a vessel, such as the hull, engine and tackle; as well as flatboats, lighters, scows, and dredges used to deepen harbors and channels Controversy exists con-cerning whether a maritime lien can attach to a raft; however, courts have not recognized maritime liens for repairs done on a seaplane while it is in a hangar on dry land or for bridges, dry docks, wharves, or floating structures permanently moored to shore, such as barges that are used for restaurants
The amount of a maritime lien equals the reasonable value of services that are performed
in maintaining the ship, coupled with supplies that are furnished plus interest, less any set-off for claims the ship has against the lienholders The amount ordinarily arises out of a contract; however, a maritime lien can also be created for damages that are attributable to injuries that are caused by the ship
An individual who is entitled to a maritime lien may forfeit his or her right if he or she delays in enforcing it or does something inconsistent with the lien Allowing the ship to depart does not affect the lien; however, the complete destruction of a vessel extinguishes it
Trang 10A lienholder must sue in federal court in
order to enforce a maritime lien, and anyone
holding a lien against the ship can intervene in
the action.The court may order a sale of the ship
and its cargo and distribute the proceeds to
those who establish a valid claim against the
ship Where there are insufficient funds to
satisfy every claim, the court determines which
liens have priority, and the percentage of
recovery that each claimant is entitled to collect
CROSS REFERENCES
Intervention; Admiralty and Maritime Law.
MARKET VALUE
The highest price a willing buyer would pay and a
willing seller would accept, both being fully
informed, and the property being exposed for sale
for a reasonable period of time The market value
may be different from the price a property can
actually be sold for at a given time (market price)
The market value of an article or piece of property
is the price that it might be expected to bring if
offered for sale in a fair market; not the price that
might be obtained on a sale at public auction or a
sale forced by the necessities of the owner, but such
a price as would be fixed by negotiation and
mutual agreement, after ample time to find a
purchaser, as between a vendor who is willing (but
not compelled) to sell and a purchaser who desires
to buy but is not compelled to take the particular
article or piece of property
MARKETABLE TITLE
Ownership and possession of real property that is
readily transferable because it is free from valid
claims by outside parties
The concept of marketability of title refers
to ownership of real estate Under law, titles
are evidence of ownership Selling real estate
(land and the property attached to it) involves
transferring its title A marketable title is one
that can be transferred to a new owner without
the likelihood that claims will be made on it
by another party The concept is crucial in all
real estate transactions because buyers generally
expect to receive property to which no one else
can lay claim; they do not expect that their
ownership will later be challenged
Marketabili-ty of title is addressed in the contract for sale
Unless a contract for sale specifies that a third
party has claims on the real estate, there is an
implied provision that the seller has a good or marketable title, which the buyer will receive
However, some real estate that is for sale will have outside claims against it These claims are known as clouds and encumbrances For instance, the owner of the title may have outstanding debts or owe interest that has resulted in a lien being placed on the property
The lien gives the owner’s creditor a qualified legal right to the property in question, which remains in effect until the debt is settled
Because liens are long-lived (they can remain
in force across generations), many states have tried to simplify land transactions by adopting marketable title acts Generally, these laws limit the duration of a lien to a period of years during which the lien holder must take some action to satisfy the lien, or it is extinguished Typically these laws apply to liens in existence at the time
of the law’s creation, as well as to future liens
Ordinarily, contracts for the sale of real estate provide a remedy for a buyer who later discovers that the title is not marketable If the seller has failed to provide marketable title, the buyer is permitted to rescind the sale—that is,
to back out of the contract and receive a refund
of the money paid for the property Suppose, for example, that Mary buys land from Bob
The contract of sale declares that Bob holds marketable title to the land After paying Bob, Mary receives a letter from an attorney saying that a business called Lou’s Used Cars holds a lien on the property because Bob is using it as collateral for a car loan In this case Bob has failed to provide Mary with marketable title
He will soon be hearing from her attorney, who will say that Mary is rescinding and wants her money back
CROSS REFERENCES Cloud on Title; Real Property; Title Insurance; Title Search.
MARQUE AND REPRISAL
A commission by which the head of a government authorizes a private ship to capture enemy vessels
The authority to do such capturing is granted to private vessels in letters of marque and reprisal In the technical sense, a letter of marque is permission to cross over the frontier into another country’s territory in order to take
a ship; a letter of reprisal authorizes taking the captured vessel to the home port of the capturer