Constitution and acts of Congress, the law to be applied in any case is the law of the state in which the federal court is situated.. The court would have applied a state statute since t
Trang 1money is being handled A trust orCONSTRUCTIVE
TRUSTcan be ordered by a judge to place the care
and management of property with one person
for the benefit of another A partition is an
order dividing property held between two or
more persons Declaratory relief is granted when
a judge declares the rights of certain parties The
effect of aDECLARATORY JUDGMENTis to set future
obligations between the parties
Under the remedy of specific performance,
a judge may order one party to perform a
specific act This type of relief is often used to
resolve contractual disputes involving unique
property For example, the purchaser of a house
may not wish to obtain money damages if the
seller breaks a contract for sale of the house
This may be so because a house is considered
unique and thus the damage is irreparable—
that is, it cannot be fully redressed by mere
money damages If the court agrees that money
damages would be inadequate redress for the
buyer, the judge may order a completion of the
sale to the buyer, instead of money damages, for
the seller’s breach of contract
Equitable contract remedies offer a judge an
array of choices Rescission discharges all parties
to a contract from the obligations of the
contract The remedy of rescission restores
the parties to the positions they held before
the formation of the contract Restitution is an
order directing one party to give back
some-thing she or he should not be allowed to keep
These two remedies may be sought together
For example, if a buyer purchases an antique
piano on credit and later discovers it is a fake,
the buyer may sue for rescission and restitution
Under such a dual remedy, the buyer would
return the piano to the seller, and the seller
would return any payments made by the buyer
Reformation is an equitable way to remedy a
contractual mistake Suppose, for example, that a
buyer agrees to order 5,000 units of a product but
mistakenly signs a contract ordering the shipment
of 50,000 units If the seller refuses to provide
fewer than 50,000 units and demands payment for
50,000, the buyer may sue the seller for
reforma-tion of the contract In such a case, the court may
change the terms of the contract to reflect the
amount of product actually agreed upon
Equitable relief has long been considered an
EXTRAORDINARY REMEDY, an exception to the
general rule of money damages Modern courts
still invoke the rule that equitable relief is
available only where money damages are inappropriate; in practice, however, courts rarely insist on monetary relief when equitable relief is requested by a plaintiff
Equitable Defenses
The doctrine of clean hands holds that the plaintiff in an equity claim should be innocent
of any wrongdoing or risk dismissal of the case
Laches proposes that a plaintiff should not
“sleep on his or her rights”—that is, if the plaintiff knows of the defendant’s harmful actions but delays in bringing suit, and the delay works against the rights of the defendant, the plaintiff risks dismissal of the case Under modern law, such defenses are available in any civil case They are nevertheless considered equitable because they invoke notions of fairness; are not provided in statutes; and are decided only by a judge, not by a jury
Other Equitable Doctrines
Many of the equitable doctrines listed here are codified in statutes This does not make the issues they concern “legal” as opposed to
“equitable.” Such issues, whether codified by statute or not, are left to the discretion of a judge, who makes a decision based on principles
of fairness
Equitable Adoption Equitable adoption is the adoption of a child that has not been formally completed but that the law treats as final for some purposes Generally, a child cannot be adopted without the fulfillment of certain procedures However, it is sometimes fair and
in the best interests of the child to imply that an adoption has taken place If an adult has performed parental duties and has intended to adopt the child but has failed to fulfill formal adoption procedures, a court may order that for some purposes, the child should be considered part of the adult’s family The most common purpose of an equitable adoption is to give a child the right to inherit from the estate of an equitably adoptive parent
Equitable Conversion Equitable conversion completes a land sale when the death of a seller occurs between the signing of the sale agree-ment and the date of the actual sale In such a case, a judge will convert the title to the purchaser This is in fulfillment of the time-honored maxim that“Equity looks upon that as done which ought to have been done.”
EQUITY 219
Trang 2Equitable Distribution Equitable distribution can describe a fair allotment of anything In the law, equitable distribution is a TERM OF ART that describes a method used to divide the property of
a husband and wife upon divorce Under this method, the needs and contributions of each spouse are considered when property is divided between them This differs from the process used under theCOMMUNITY PROPERTYmethod, where all marital property is simply divided in half
Equitable Estoppel Under the doctrine of equitable ESTOPPEL, a person is prevented, or estopped, from claiming a LEGAL RIGHT, out of fairness to the opposing party For example, suppose that a person willfully withholds infor-mation in order to avoid defending a lawsuit If the withheld information causes the lawsuit to be brought later than the STATUTE OF LIMITATIONS
requires, the person may be estopped from asserting a statute-of-limitations defense
Equitable Lien A lien is an interest in property given to a creditor to secure the satisfaction of a debt An equitable lien may arise from a written contract if the contract shows an intention to charge a party’s property with a debt or obligation An equitable lien may also be declared by a judge in order to fairly secure the rights of a party to a contract
Equitable Recoupment Equitable recoupment prevents a plaintiff from collecting the full amount of a debt if she or he is holding something that belongs to the defendant debtor
It is usually invoked only as a defense to mitigate the amount a defendant owes to a plaintiff For example, if a taxpayer has failed to claim a tax refund within the time period prescribed by the statute of limitations, the taxpayer may regain, or recoup, the amount of the refund in defending against a future tax claim brought by the government
Equitable Servitude An equitable servitude is
a restriction on the use of land or a building that can be continually enforced When a land buyer
is aware of an agreement that restricts the use of the land, the buyer may be held to the terms of the restriction, regardless of whether it was written in the deed
Equity in Property Equity in property is the value of real estate above all liens or claims against it It is used to describe partial owner-ship For example, suppose the fair market value
of a home is $80,000 If the homeowner has a
mortgage and owes $50,000 on the mortgage, the equity amount is $30,000 The recognition
of equity in property allows a property owner to borrow against a portion of the property value, even though the owner cannot claim complete and final ownership
Equity of Redemption EQUITY OF REDEMPTIONis the right of a homeowner with a mortgage (a mortgagor) to reclaim the property after it has been forfeited Redemption can be accom-plished by paying the entire amount of the debt, interest, and court costs of the foreclosing lender With equity of redemption, a mortgagor has a specified period of time after default and before foreclosure, in which to reclaim the property
Equity Financing When a corporation raises capital by selling stock, the financing is called equity financing because the corporation is offering stockholders a partial interest in its ownership By contrast, debt financing raises capital by issuing bonds or borrowing money, neither of which conveys an ownership in the corporation An equity security is an equitable ownership interest in a corporation, such as that accompanying common and preferred shares of stock
FURTHER READINGS Chancery Court: Mississippi Available online at http:// www.co.jackson.ms.us/DS/ChanceryCourts.html; web-site home page: http://www.co.jackson.ms.us (accessed July 21, 2009).
Delaware State Courts, Court of Chancery Available online at http://www.courts.state.de.us/chancery; web-site home page: http://www.courts.state.de.us (accessed July 21, 2009).
Laycock, Douglas 1993 “The Triumph of Equity.” Law and Contemporary Problems 56 (summer).
CROSS REFERENCE Discretion in Decision Making.
EQUITY OF REDEMPTION The right of a mortgagor, that is, a borrower who obtains a loan secured by a pledge of his or her real property, to prevent foreclosure proceedings by paying the amount due on the loan, a mortgage, plus interest and other expenses after having failed
to pay within the time and according to the terms specified therein
This right is based upon the equitable principle that it is only fair that a borrower have a final opportunity to keep his or her
220 EQUITY OF REDEMPTION
Trang 3property even if he or she has failed to make
payments on the mortgage, since the property is
to be sold in foreclosure proceedings
The equity of redemption must be exercised
by a mortgagor within a certain time after
having defaulted on an obligation It exists only
from the time of default to the time that
foreclosure proceedings are commenced
ERGO
Latin, therefore; hence; because
ERIE RAILROAD CO V TOMPKINS
A 1938 landmark decision by the Supreme
Court, Erie Railroad Co v Tompkins, 304 U.S
64, 58 S Ct 817, 82 L Ed 1188, that held that
in an action in a federal court, except as to
matters governed by the U.S Constitution and
acts of Congress, the law to be applied in any
case is the law of the state in which the federal
court is situated
Harry J Tompkins was walking on a
footpath alongside railroad tracks on land
owned by the Erie Railroad Company when
he was struck and injured by a passing train He
claimed that his injuries resulted from the
NEGLIGENCEof the railroad in operating the train
Tompkins wanted to sue the railroad and
recover monetary damages for his injuries He
was a citizen of Pennsylvania, and the Erie
Railroad Company was a New York
corpora-tion He instituted an action in federal court,
which was empowered, by virtue of its diversity
jurisdiction, to hear the case because the
PLAINTIFF and the DEFENDANT were citizens of
different states
The issue before the court was what law to
apply in deciding the case The court would
have applied a federal statute to decide whether
Tompkins was entitled to damages, but none
existed The court would have applied a state
statute since there was no federal statute, but
Pennsylvania did not have one
The highest court of Pennsylvania had
established a rule to be followed in state courts
whenever a case like this occurred The
Penn-sylvania rule was that people who use pathways
along railroad right-of-ways, not railroad
cross-ings, are trespassers to whom railroads were not
to be held liable unless the trespassers were
intentionally injured by the reckless and wanton
acts of the railroads
The trial judge refused to apply the Pennsylvania rule He found thatSWIFT V.TYSON,
41 U.S (16 Pet.) 1, 10 L Ed 865 (1842), which held that there was a body of federal common law to be applied in such cases, gave federal judges the right to ignore state rules that were not enacted as statutes by their state legislatures
He held that it was more important for all federal courts to follow a uniform rule, rather than for each federal court to apply local state rules when there was no statute to resolve the case He allowed a jury to decide whether the railroad company was negligent, and the jury returned aVERDICTof $30,000 for Tompkins
The Supreme Court reversed the decision and struck down the rule that allowed federal judges to ignore state court decisions in diversity cases Although this rule had been followed since Swift v Tyson was decided in
1842, the Supreme Court ruled that it was inequitable According to the old rule, Tompkins could obtain monetary damages if he sued in federal court, but not if he initiated his lawsuit a few blocks away in the Pennsylvania state court
If the plaintiff and defendant were citizens of different states, the plaintiff could take advantage
of the right to sue in federal court There the plaintiff might win, even if he or she had been trespassing on railroad property If the plaintiff and defendant were both citizens of Pennsylva-nia, the plaintiff could not sue in federal court
Pennsylvania courts would all be bound to follow the rule that prevented recoveries for those who used paths alongside railroad tracks The Supreme Court held that it was unjust for the plaintiff’s chances of winning to depend on the fact that the railroad was a Pennsylvania corporation
The new rule of Erie Railroad Co v
Tompkins provided that federal courts do not have the power to formulate their own rules of law The federal courts must apply appropriate federal statutes in diversity cases When there is
no federal law to resolve the question in a lawsuit, they must follow the law of the state that is involved That includes state statutes and controlling decisions made by the highest court
of that state
As a result of this case, the decisions of federal courts are truly uniform only when a question of federal law is involved Otherwise, the states are free to develop their own law and have it applied to state questions that come into
ERIE RAILROAD CO V TOMPKINS 221
Trang 4federal court because the parties are from different states
FURTHER READINGS Deeks, Ashley S 1997 “Raising the Cost of Lying:
Rethinking Erie for Judicial Estoppel.” Univ of Chicago Law Review 64 (summer).
Timpa, Andrea V 2002 “In Re Orso: There is No Need to Erie-Guess When the Law is Clear and Unambiguous ” Loyola Law Review 48 (fall).
Younger, Irving 1978 “What Happened in Erie.” Texas Law Review 56.
CROSS REFERENCE Diversity of Citizenship.
ERRATUM [Latin, Error.] The term used in the Latin formula for the assignment of mistakes made in
a case
After reviewing a case, if a judge decides that there was no error, he or she indicates so by replying, “In nollo est erratum,” which means,
“no error was committed.” The plural is errata
ERROR
A mistake in a court proceeding concerning a matter of law or fact, which might provide a ground for a review of the judgment rendered in the proceeding
The nature of the error dictates the availability of a legal remedy Generally speak-ing, mistaken or erroneous application of law will void or reverse a judgment in the matter
Conversely, errors or mistakes in facts, upon which a judge or jury relied in rendering a judgment or VERDICT, may or may not warrant reversal, depending upon other factors involved
in the error However, appellate decisions make
a distinction—not so much between fact and law, but rather, between HARMLESS ERROR and reversible error—in deciding whether to let stand
or vitiate a judgment or verdict
In litigation, a harmless error means that, despite its occurrence, the ultimate outcome of the case is not affected or changed, and the mistake is not prejudicial to the rights of the party who claimed that the error occurred In other words, the party claiming error has failed
to convince an appellate court that the outcome
of the litigation would have been different if the error had not occurred Most harmless errors are errors of fact, such as errors in dates, times,
or inconsequential details to a factual scenario
In contrast, error that is deemed harmful
in that it biased the ultimate decision of a jury
or judge, constitutes reversible error, i.e., error that warrants reversal of a judgment (or modification, or retrial) A reversible error usually refers to the mistaken application of a law by a court, as where, for example, a court mistakenly assumes jurisdiction over a matter that another court has exclusive jurisdiction over A court may erroneously apply laws and rules to admit (or deny the admission of) certain crucial evidence in a case, which may prove pivotal or dispositive to the outcome of the trial and warrant reversal of the judgment Occasionally, a court may charge the jury with
an instruction that applies the wrong law, or with an improper interpretation of the correct law If the party claiming error can prove that the error was prejudicial to the outcome of the case or to the party’s rights, the error will most likely be deemed reversible
An example of potential harmful or revers-ible error of both law and fact might involve the age of a RAPE victim in a criminal trial for statutory rape, (where guilt is premised upon the actual age of the victim, and not on whether the sexual conduct was consensual)
In appellate practice, a party may not appeal
an error that it induced a court to make (as by petitioning or moving the court to make a ruling which is actually erroneous) Appellate decisions refer to this as an invited error and will not permit a party to take advantage of the error
by having the decision overruled or reversed The general use of the term error is often distinct from the use of the word mistake, especially in the law of contracts In such cases,
a MISTAKE OF LAW or fact (in the making of a contract, or performance thereupon) might result in a finding of harmless or reversible error, but the terms are not transitional
CROSS REFERENCES Clerical Error; Plain-Error Rule.
vERVIN, SAMUEL JAMES, JR
Samuel J Ervin Jr had a long career in law and politics including 20 years in the U.S Senate He
is most famous, however, for presiding over the Senate Select Committee on Presidential Cam-paign Activities, popularly known as the WATER-GATECommittee
222 ERRATUM
Trang 5Ervin was born September 27, 1896, in
Morganton, North Carolina He received an
A.B from the University of North Carolina
in 1917 and served as an infantryman in France
during WORLD WAR I When he returned from
France, he went to Harvard Law School where
he received an LL.B in 1922
After law school, Ervin returned to North
Carolina where for the next 30 years he
practiced law, ventured into politics, and served
as a county and state judge Ervin’s political
career began in 1923 when he was elected to the
North Carolina General Assembly; he served
two more terms in the legislature in 1925 and
1931 His most notable achievement in the
legislature came in 1925 when he helped defeat
a bill that would have prohibited the teaching of
the theory of evolution in North Carolina
public schools
From 1935 until 1937 Ervin served as a
judge in the Burke County Criminal Court and,
from 1937 until 1943, in the Superior Court He
resigned the latter post to return to his law
practice In 1946–47 he served part of a term in
the U.S House of Representatives, completing
the term of his brother who had died after being
elected to office Ervin chose not to run for
reelection when the term was over and returned
to North Carolina In 1948 he became a judge
on the North Carolina Supreme Court, a
position that he held until 1954
In 1954 the governor of North Carolina
appointed Ervin to complete the term of a U.S
senator who had died Ervin continued to be
elected to the Senate until his retirement
in 1974
As a senator, Ervin fought against measures that he believed would endanger individual liberty This led him to oppose mostCIVIL RIGHTS
legislation—which he believed would confer freedom on some at the expense of others—as well as to be instrumental in stopping a proposedCONSTITUTIONAL AMENDMENTthat would have permitted prayer in the public schools For the same reason, he opposed a government proposal to maintain computerized files on persons who participated in political protests
Such records, said Ervin, raised the specter of a police state On social issues, he usually voted
Samuel J Ervin Jr.
LIBRARY OF CONGRESS
Samuel James Ervin Jr 1896–1985
❖
1896 Born,
Morganton, N.C.
◆
1917 Joined U.S Army
◆
1948–54 Served on North Carolina Supreme Court
1923 Elected to North Carolina General Assembly
1963 U.S Supreme Court banned school prayer
1954–74 Represented North Carolina
in U.S Senate
1985 Died, Winston-Salem, N.C.
❖
◆ ◆
◆
1925 Scopes trial;
helped defeat bill that would have prohibited teaching of evolution
in N.C schools
1980 The Whole Truth:
The Watergate Conspiracy
published
1984 Autobiography
Preserving the Constitution
published
1914–18 World War I
1961–73 Vietnam War 1939–45
World War II
1950–53 Korean War
1935–43 Served as judge in Burke County Criminal and Superior Courts
1973 Presided over the Senate Watergate hearings
◆
1974 President Nixon resigned from office
THERE IS NOTHING IN THECONSTITUTION THAT AUTHORIZES OR MAKES IT THE OFFICIAL DUTY OF A PRESIDENT TO HAVE ANYTHING TO DO WITH CRIMINAL ACTIVITIES
—S AMUEL E RVIN J R
ERVIN, SAMUEL JAMES, JR 223
Trang 6with the more conservative members of the Senate He opposed the EQUAL RIGHTS AMEND-MENT, and, as a member of the Senate ARMED SERVICESCommittee, he supported U.S involve-ment in Vietnam
Ervin was widely respected in the Senate for his knowledge of the Constitution, which he described as one of the greatest works in the English language and said should be taken like mountain whiskey—undiluted and untaxed
Nonetheless, he might not have become a national figure had it not been for his role in the Senate Watergate hearings in 1973 As Ervin presided over the nationally televised hearings,
he became familiar to millions of viewers
Known among his fellow senators for his wit and erudition, Ervin liked to describe himself as
“just an ol’ country lawyer.” He published several books, including The Whole Truth: The Watergate Conspiracy (1980), Humor of a Country Lawyer (1983), and an autobiography titled Preserving the Constitution (1984) Ervin died April 23, 1985, in Winston-Salem, North Carolina
CROSS REFERENCES Nixon, Richard Milhous; Watergate.
ESCALATOR CLAUSE
A stipulation contained in a union contract stating that wages will be raised or lowered, based upon an external standard such as the cost of living index A term, ordinarily in a contract or lease, that provides for an increase in the money to
be paid under certain conditions
Escalator clauses frequently appear in busi-ness contracts to raise prices if the individual providing a particular service or type of merchandise is forced to pay more for labor
or materials
Such clauses are also often part of con-tracts or leases executed subject to price-control regulations When this type of provi-sion is in a lease, a landlord has the power to collect the maximum amount of rent allowed under rent regulations that are in effect at the time of the lease The escalator clause provides that if the rent regulations are altered during the time of the lease, the tenant must pay the new rental fee computed pursuant to the revised regulations
ESCAPE The criminal offense of fleeing legal custody without authority or consent
In order for an individual who has been accused of escape to be convicted, all elements
of the crime must be proved Such elements are governed by the specific language of each state statute The general common-law principles may be incorporated within a statute, or the law may depart from them in various ways Federal statutes also make it a crime to escape from federal custody
Ordinarily, the crime of escape is committed either by the prisoner or by the individual who has the responsibility for keeping the prisoner in custody The custodian of the prisoner is not ordinarily a warden for the entire prison, but is generally the person who has immediate responsibility for guarding the prisoner Certain states currently punish negligent guards ad-ministratively, such as by divesting them of their rank or seniority, or by firing them Criminal punishment is generally reserved for guards who actively cooperate in facilitating a
prison-er’s escape
An escape takes place when the prisoner is able to remove himself or herself from the lawful control of an authorized custodian An individual can be found guilty of escape even in the event that his or her initial arrest was wrongful, since an unlawful arrest must prop-erly be argued in court The theory is that in order for the process of justice to operate in an orderly manner, a prisoner must not be given the privilege of determining whether or not he
or she should be confined If an arrest is totally unlawful, however, an individual cannot be guilty of escape This might occur, for example,
if a store security guard has no grounds to arrest
a shoplifter but does so anyway
In order to prove that a criminal escape took place, it is ordinarily unnecessary to show that the accused party was actually confined within prison walls Once an arrest has taken place, the prisoner cannot leave of his or her own volition Frequently the degree of the crime is increased when the escape is from a particular kind of confinement For example, the law might deal more harshly with an individual who escapes from armed prison guards while working on a chain gang than with an individual who runs away while an arresting officer interrogates witnesses In other jurisdictions, the degree of
224 ESCALATOR CLAUSE
Trang 7criminal escape is dependent upon the nature of
the crime that initially precipitated the
prison-er’s confinement
It is ordinarily necessary to prove that an
escaped prisoner was actually attempting to
evade legal confinement For example, if the
prisoner went to the wrong place by mistake, he
or she will probably not be found guilty of a
criminal escape
Other crimes are related to escape, such as
the offense of aiding escape, which is committed
by a person who, for example, smuggles a
prisoner out of jail Ordinarily a conviction for
aiding escape is punishable by a sentence for the
number of years specified by the criminal
statute
In some states it is a separate crime to
harbor or conceal an escaped prisoner To obtain
a conviction against the individual accused of
this crime, it must be shown that the individual
believed that he or she was aiding an escaped
prisoner with the intent to help him or her get
clear of lawful custody It does not constitute a
defense to assert that the prisoner never should
have been arrested
Prison breach is an escape committed
through the use of force and is more heinous
than simple escape It is not a separate crime,
however, and the state may regard it as a more
serious degree of criminal escape An attempt to
commit escape or any of the related crimes is
punishable, even though such an attempt might
not have been successful
ESCHEAT
The power of a state to acquire title to property for
which there is no owner
The most common reason that an escheat
takes place is that an individual dies intestate,
meaning without a valid will indicating who is
to inherit his or her property, and without
relatives who are legally entitled to inherit in the
absence of a will A state legislature has the
authority to enact an escheat statute
In feudal England, escheat was a privilege
exclusively given to the king The policy of
inheritance was to preserve the wealth of noble
families by permitting one individual to inherit
an entire estate There was no writing of wills
that would leave property to several heirs
because that would have the effect of breaking
up the estate In addition, the law established a
hierarchy of heirs who stood in line to inherit the estate If there was no living person of a designated class to inherit, the king took the property by escheat
Historically, reasons existed for escheat apart from the absence of heirs to inherit a decedent’s property When corporations were subject to strict regulation, it was unlawful for a corporation to own property in any way not permitted by its state-granted charter Any property beyond that needed by the corporation for the operation of its business, or in excess of the amount designated in its charter, or held for
a period of time beyond that which was permitted, was subject to escheat
Certain states mandated escheat of property belonging to religious societies that either promotedPOLYGAMYor neglected to incorporate
as required by law Additionally, where public lands were provided for settlers, statutes fre-quently made provisions for escheat when one individual took possession of more than the permitted acreage or did not properly cultivate the homestead
Dissimilarities
Escheat is distinguishable from forfeiture even though both terms refer to a relinquishment of property Forfeiture can be applied to any type
of property interest, including possession, the right to inherit, or the right of reversion In addition, forfeiture often is used as a penalty against an individual who has an interest in property, for an illegal act An escheat takes place due to the lack of any person with a valid interest in the property, and is not usually linked to any illegality or wrongdoing
Succession is the passing of a decedent’s property to his or her heirs Escheat is not treated in law like succession; the two concepts are completely separate
Property Subject to Escheat
Ordinarily, the property subject to escheat is all the property within the state belonging to the original owner upon his or her death Although initially the doctrine was applicable solely to real property, it presently extends to personal property, including such intangibles as bank accounts and shares of stock Certain other types of property can be the subject of escheat for lack of a known owner The determination
is contingent upon state law
ESCHEAT 225
Trang 8Unclaimed or abandoned property escheats
to the state under some statutes However, the state cannot merely declare property abandoned and appropriate it Such laws must function within constitutional limits by observing the requirements imposed by due process The state
is required to adopt a routine procedure for notifying the public and must provide potential claimants an opportunity to argue that the property might belong to them Without declaring that certain abandoned property has been escheated, the state may lawfully possess the property and hold it for a period of time so that claims can be asserted A state is not mandated to take over unclaimed property but may choose to exercise the power to escheat only when the value of the property does not exceed the expense ofLEGAL PROCEEDINGS Items subject to escheat under various statutes include abandoned bank accounts, deposits left with utility companies, stock divi-dends whose owners cannot be found; unpaid wages; unclaimed legacies from the estate of a deceased relative; insurance money to unknown beneficiaries; and unclaimed money retained by employers or public officials
Certain statutes specify that the property of charitable or religious institutions escheats upon dissolution if its donors have not retained the right to recover it when it is no longer used for religious or charitable objectives
Procedure
Escheat statutes vary by state, but all prescribe a procedure for location of the rightful owner In some states title to certain types of property automatically passes to the state when it escheats for lack of a proper claimant In other states, a required period of time must elapse prior to the commencement of escheat pro-ceedings This does not bar a claimant from stating his or her claim before completion of the escheat proceedings Some laws require clai-mants to assert their rights within a period of time or forfeit them Often, states mandate that individuals administering estates notify the state government of the existence of property that might be subject to escheat
The primary burden of proving that there is
no proper individual entitled to own the property in question rests with the state, and the general rules regarding the admissibility of evidence are applicable Rules of presumption,
such as the common-law presumption of death after a seven-year disappearance, can be used to support the case of the state After the state has proved a legally sufficient case, any individual claiming a right to the property has an opportunity to go forward and argue against the evidence submitted by the state
Some states offer money to informers who notify the state of property that might be subject
to escheat Informers might be required to provide evidence and pursue the case to a conclusion before they will be entitled to a fee Other states provide compensation for an escheater, a person appointed by the court to manage the claim of the state for escheat An escheater is entitled to be paid a reasonable amount even if he or she does not succeed in recovering the property for the state
FURTHER READINGS Andreoli, Anthony L., and J Brooke Spotswood 2002 Unclaimed Property: Laws, Compliance, and Enforce-ment Chicago: CCH.
Haines, Martin L 2000 “Change May Be in Offing for Rules Governing Abandoned Money ” New Jersey Law Journal
162 (October 2).
Ramasastry, Anita 2001 “State Escheat Statutes and Possible Treatment of Stored Value, Electronic Currency, and Other New Payment Mechanisms ” Business Lawyer 57, no 1 (November).
Woodards, Shantee 2003 “Unclaimed Property Piles Up.” Detroit News (September 13).
ESCOBEDO V ILLINOIS One of three important cases decided by the U.S Supreme Court in the 1960s on the subject
of theRIGHT TO COUNSEL, Escobedo v Illinois 378 U.S 478, 4 Ohio Misc 197, 84 S.Ct 1758, 12 L Ed.2d 977 (U.S.Ill 1964), was a far-reaching decision which held for the first time that defendants had a right to counsel even before they were indicted for a particular crime However, the decision was overshadowed by the high court’s Miranda decision two years later, and later decisions by both the Supreme Court and lower courts indicated the applica-tion of the decision in Escobedo was to be limited to its facts Nevertheless, the Supreme Court has never directly overruled Escobedo The case involved Danny Escobedo, who was arrested on the night of January 19, 1960, for the
MURDER of his brother-in-law, but was released after contacting his lawyer The lawyer told him not to answer any more questions if the police rearrested him Ten days later, he was arrested a
226 ESCOBEDO V ILLINOIS
Trang 9second time and made a request to contact his
attorney repeatedly This request was denied
His attorney then arrived at the police
station and requested to see Escobedo but was
refused permission to see him The police then
told Escobedo that his alleged coconspirator in
the shooting of his brother-in-law had
con-fessed and implicated Escobedo Escobedo
demanded to confront his coconspirator, and
when he was brought face-to-face with him he
said, “I didn’t shoot Manuel (Escobedo’s
brother-in-law), you did it.” After this
admis-sion of his involvement in the crime, police were
able to obtain a more elaborate written
confes-sion, and Escobedo was eventually convicted of
murder Escobedo appealed his conviction,
claiming his confession was obtained without
his lawyer being present in violation of his right
to counsel, and should be thrown out
Escobedo’s case reached the Supreme Court
at a precipitous time Just six weeks before, the
high court had decidedMASSIAH V.UNITED STATES,
377 U.S 201, 84 S.Ct 1199, 12 L.Ed.2d 246
(U.S.N.Y 1964), in which the Court ruled for
the first time that theSIXTH AMENDMENT right to
counsel in order to exclude a confession That
case involved aDEFENDANTwho made a statement
to an accomplice after he had been indicted,
gotten an attorney, and had been released on bail
Unknown to the defendant, his accomplice was
working with the police The Court held that the
defendant’s Sixth Amendment rights had been
violated because the police had used the
accom-plice to elicit incriminatory statements after the
right to counsel had attached
The Supreme Court in Escobedo reached a
similar result in a 5 to 4 decision Writing for the
majority, JusticeARTHUR GOLDBERGfirst stated that
Escobedo’s right to counsel did not depend on
whether, at the time of interrogation, the
authorities have secured a formal indictment
In overturning Escobedo’s conviction and ruling
that his right to counsel had been violated,
Goldberg then enunciated a somewhat
compli-cated holding that set out numerous benchmarks
in determining whether a defendant’s Sixth
Amendment right to counsel had been violated
Wrote Goldberg: “We hold, therefore, that
where, as here, the investigation is no longer a
general inquiry into an unsolved crime but has
begun to focus on a particular suspect, the
suspect has been taken into police custody, the
police carry out a process of interrogations that
lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘The Assistance of Counsel’ in violation of the Sixth Amendment
to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.”
The high court decision in Escobedo had many observers theorizing the Court would try to establish a broad right to counsel utilizing the Sixth Amendment whenever police took a suspect into custody However, two years later, the high court changed course inMIRANDA V.ARIZONA384 U.S 436, 10 Ohio Misc 9, 86 S.Ct 1602, 16 L
Ed.2d 694 (U.S.Ariz 1966), using the FIFTH AMENDMENT right against self-incrimination to hold that statements obtained from defendants during incommunicado interrogation in a police-dominated atmosphere, without full warning of constitutional rights, were inadmis-sible Miranda made the crucial question whether a defendant was in custody or otherwise significantly deprived of his freedom of move-ment, rather than the “focus of investigation”
test enunciated in Escobedo
Since the Miranda decision, most Supreme Court and lower court cases mentioning the right to counsel have relied on the Fifth Amendment and Miranda, and those that have relied on the Sixth generally lean on the earlier Massiah decision, rather than the more complex tests of Escobedo Escobedo has been limited by the Supreme Court and lower courts to only apply to the facts of its case, and since those facts were unusual, it is rarely invoked by a court as primary law when determining whether the right to counsel exists
FURTHER READINGS Cook, Joseph 2002 Constitutional Rights of the Accused—
Pre-trial Rights Eagan, MN: West.
Israel, Jerold H., and Wayne R LaFave, eds 2006 Criminal Procedure: Constitutional Limitations in a Nutshell.
7th ed Eagan, MN: West.
Romans, Neil T 1974 “The Role of State Supreme Courts in Judicial Policy Making: Escobedo, Miranda and the Use
of Judicial Impact Analysis ” The Western Political Quarterly 27.
CROSS REFERENCE Prisoners ’ Rights.
ESCOBEDO V ILLINOIS 227
Trang 10ESCROW Something of value, such as a deed, stock, money,
or written instrument, that is put into the custody
of a third person by its owner, a grantor, an obligor, or a promisor, to be retained until the occurrence of a contingency or performance of a condition
An escrow also refers to a writing deposited with someone until the performance of an act
or the occurrence of an event specified in that writing The directions given to the person who accepts delivery of the document are called the escrow agreement and are binding between the person who promises and the person to whom the promise is made The writing is held in escrow by a third person until the purpose of the underlying agreement is accomplished When the condition specified in the escrow agreement
is performed, the individual holding the writing gives it over to the party entitled to receive it
This is known as the second delivery
Any written document that is executed in accordance with all requisite legal formalities may properly be deposited in escrow Docu-ments that can be put in escrow include a deed,
a mortgage, a promise to pay money, a bond, a check, a license, a patent, or a contract for the sale of real property The term escrow initially applied solely to the deposit of a formal instrument or document; however, it is popu-larly used to describe a deposit of money
The escrow agreement is a contract The parties to such an agreement determine when the agreement should be released prior to making the deposit After the escrow agreement has been entered, the terms for holding and releasing the document or money cannot be altered in the absence of an agreement by all the parties
A depositary is not a party to the escrow agreement, but rather a custodian of the deposit who has no right to alter the terms of the agreement or prevent the parties from altering them if they so agree The only agreement that the depositary must make is to hold the deposit, subject to the terms and conditions of the agreement Ordinarily, the depositary has no involvement with the underlying agreement;
however, an interested party may, in a few states, be selected to be a depositary if all parties are in agreement In all cases, a depositary is bound by the duty to act according to the trust placed in him or her If the depositary makes a
delivery to the wrong person or at the wrong time, he or she is liable to the depositor The document or the money is only in escrow upon actual delivery to the depositary Ordinarily, courts are strict in their requirement that the terms of the agreement be completely performed before the deposit is released A reasonable amount of time must generally be allotted for performance Parties may, however, make the agreement that time is of the essence, and in such a case, any delay beyond the period specified in the agreement makes the individual who is obligated to act forfeit all his or her rights in the property in escrow
ESPIONAGE The act of securing information of a military or political nature that a competing nation or organization holds secret It can involve the analysis
of diplomatic reports, publications, statistics, and broadcasts, as well as spying, a clandestine activity carried out by an individual or individuals working under secret identity to gather classified information
on behalf of another entity or nation In the United States, the organization that heads most activities dedicated to espionage is the Central Intelligence Agency (CIA)
Espionage, commonly known as“spying,” is the practice of secretly gathering information about a foreign government or a competing enterprise, with the purpose of placing one’s own government or corporation at some strategic or financial advantage Federal law prohibits espio-nage when it jeopardizes the national defense or benefits a foreign nation (18 U.S.C.A § 793) Criminal espionage involves betraying U.S government secrets to other nations
Despite its illegal status, espionage is commonplace Through much of the twentieth century, international agreements implicitly accepted espionage as a natural political activity This gathering of intelligence benefited compet-ing nations that wished to stay one step ahead of each other The general public never hears of espionage activities that are carried out
correct-ly However, espionage blunders can receive national attention, jeopardizing the security of the nation and the lives of individuals
Espionage is unlikely to disappear Since the late nineteenth century, nations have allowed each other to station so-called military attachés
in their overseas embassies These figures collect intelligence secrets about the armed forces of
228 ESCROW