Alvarez sought to dismiss the INDICTMENT, claiming that the federal district court lacked jurisdiction to try him because his abduction Manuel Noriega was brought to the United States to
Trang 1Although the specialty principle was not
specifically enumerated in the treaty that
allowed the extradition, the U.S Supreme Court
held that an accused “shall not be arrested or
tried for any other offense than that with which
he was charged in those proceedings.”
Extradition treaties often provide exceptions
under which a nation can refuse to surrender a
fugitive sought by another nation Many nations
will not extradite persons charged with certain
political offenses, such asTREASON,SEDITION, and
ESPIONAGE Refusal to extradite under such
circumstances is based on the policy that a
nation that disagrees with or disapproves of
another nation’s political system will be
reluc-tant to return for prosecution a dissident who
likewise has been critical of the other nation
But, of course, not every criminal act will
necessarily be protected For example, some
treaties provide that certain crimes, such as the
ASSASSINATIONof a head of a foreign government,
do not constitute political offenses that are
exempt from extradition The rise in airplane
HIJACKING, TERRORISM, and hostage taking in the
late twentieth century led many nations to enter
into multilateral conventions in which the
signing countries mutually agreed to extradite
individuals who committed such crimes
Since the 1980s, the international extradition
process has been viewed by law enforcement
authorities as too time-consuming, expensive,
and complicated It has also been criticized for
frequently failing to bring fugitives to justice As a
result, some countries, including the United
States, have turned to ABDUCTION to return a
fugitive to a nation to be tried Although its
legality is questionable, abduction has sometimes
been justified to combat drug trafficking and to
ensure national security In 1989, for example,
the United States invaded Panama in an attempt
to bring General Manuel Noriega to the United
States to face charges related to drug trafficking
The George H W Bush administration asserted
that the invasion was necessary to protect
national interests in the Panama Canal and to
prevent an armed attack by Panama
Noriega was eventually brought to the
United States to stand trial, where he contested
the validity of the federal district court’s
jurisdiction over him (United States v Noriega,
746 F Supp 1506[S.D Fla 1990]) The court
rejected his contention, holding that Noriega
could be tried in the United States, despite the means that were used to bring him to trial The court declined to address the underlying legality
of Noriega’s capture, concluding that, as an unrecognized head of state, Noriega lacked standing (the LEGAL RIGHT) to challenge the invasion as a violation of INTERNATIONAL LAWin the absence of protests from the legitimate government of Panama over the charges leveled against him
In United States v Alvarez-Machain, 504 U.S 655, 112 S Ct 2188, 119 L Ed 2d 441 (1992), the Supreme Court held that Humberto Alvarez-Machain’s forcible abduction did not prohibit his criminal trial in the United States
Alvarez, a citizen of Mexico and a physician, was accused by the U.S government of participating in the KIDNAPPING, torture, and
MURDER of a U.S.DRUG ENFORCEMENT ADMINISTRA-TION agent and the agent’s airplane pilot, and was indicted for these crimes Alvarez was later kidnapped from his office and flown by private plane to El Paso, Texas The Mexican govern-ment objected to the abduction and protested it
as a violation of the extradition treaty between the United States and Mexico It asked that the law enforcement agents responsible for the kidnapping be extradited to Mexico, but the United States refused to do so
Alvarez sought to dismiss the INDICTMENT, claiming that the federal district court lacked jurisdiction to try him because his abduction
Manuel Noriega was brought to the United States to stand trial after a U.S invasion
of Panama, not through standard extradition procedures.
AP IMAGES
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
EXTRADITION 319
Trang 2violated the extradition treaty The district court agreed and dismissed the indictment The U.S
Court of Appeals for the Ninth Circuit affirmed, holding that the abduction violated the treaty’s underlying purpose of providing a legal means for bringing a person to the United States to face criminal charges On appeal, the U.S
Supreme Court rejected the lower courts’ use
of the treaty as the basis for prohibiting Alvarez’s trial Justice WILLIAM H REHNQUIST, writing for the majority, found in the treaty
no provisions stating that abductions were forbidden He further maintained that the treaty was “not the only way in which one country may gain custody of a national of the other country for the purposes of prosecution.” Thus,
he concluded, the abduction did not prohibit Alvarez’s trial in a U.S court on criminal
charges JusticeJOHN PAUL STEVENSfiled a strong dissenting opinion in which Justices HARRY BLACKMUN and Sandra Day O’Connor joined According to the dissent, Alvarez’s abduction was a gross violation of international law, intruding on the territorial integrity of Mexico Other nations have also struggled with high-profile extradition cases For example, in 2000 officials in Britain refused to extradite former Chilean dictator Augusto Pinochet to Spain where he would face trial for thousands of murders and other atrocities during his rule from 1973 to 1990 Whereas Pinochet had absolute IMMUNITY from prosecution in Chile, other nations, including Spain, were free to charge him with his alleged crimes When Britain refused to extradite him, he was able
to return to Chile and avoid prosecution
Roman Polanski
I
B
n 1977, Polish film director Roman Polanski fled
the United States after pleading guilty to statutory
rape The 13-year-old girl had accused Polanski of
sexually assaulting her during a photo shoot, but her
parents convinced prosecutors to reduce the
charge to statutory rape so she would not have to
testify at trial Polanski served 42 days in jail prior to
his plea, but fled to France after learning from his
lawyer that the judge intended to sentence him to
additional prison time After leaving the United
States, Polanski continued to be a successful film
and theater director, as well as an opera producer
He became a French citizen The state of California
issued an arrest warrant after he left and a
European arrest warrant was issued in 2005
Polanski was safe in France and only visited
countries that were unlikely to extradite him to the
United States Therefore, it was surprising that
Swiss police arrested him in September 2009, at the
request of U.S authorities Polanski owns a chalet
in Switzerland and has visited it numerous times
over the years
Polanski has always claimed he left the United
States because of prosecutorial and judicial
misconduct In February 2009, his lawyers asked a
California trial judge to throw out his case based on
these grounds Though the judge agreed that there was“substantial” misconduct surrounding the 1977 prosecution, he declined to grant the motion because of the principle of fugitive disentitlement
This nineteenth-century doctrine holds that a defendant who disobeys the law by fleeing a jurisdiction cannot then ask the court for help
Polanski would have to return to the state to make his case Polanski appealed this decision, and the California Court of Appeals heard oral argu-ments in December 2009 In another twist, his victim, now aged 42, asked the court to throw out Polanski’s conviction, stating that the publicity surrounding the case had disrupted her family life and health
Swiss authorities jailed Polanski and refused numerous requests from him to post bail They considered him a flight risk Finally, in late November 2009, the Swiss court agreed to release Polanski after he posted $4.5 million bail and agreed
to stay in his chalet with electronic monitoring
Legal commentators were surprised that bail was granted, given his record of fleeing justice
Moreover, now that Polanski was out of jail, it was likely he would do everything possible to slow down the extradition process
320 EXTRADITION
Trang 3FURTHER READINGS
Homrig, Brigette Belton “Abduction as an Alternative to
Extradition —A Dangerous Method to Obtain
Jurisdic-tion over Criminal Defendants ” 1993 Wake Forest Law
Review 28.
Marcus, Paul 2001 Criminal Procedure in Practice Notre
Dame, IN: National Institute for Trial Advocacy.
McWhirter, Robert James 2006 The Criminal Lawyer’s
Guide to Immigration Law: Questions and Answers 2d
ed Chicago: American Bar Association.
CROSS REFERENCES
Fugitive from Justice; Jurisdiction; Presidential Powers;
Trial.
EXTRAJUDICIAL
That which is done, given, or effected outside the
course of regular judicial proceedings Not founded
upon, or unconnected with, the action of a court of
law, as in extrajudicial evidence or an
extrajudi-cial oath
That which, though done in the course of
regular judicial proceedings, is unnecessary to such
proceedings, or interpolated, or beyond their scope,
as in an extrajudicial opinion
An extrajudicial statement is an out-of-court
utterance, either written or oral When offered
into court as evidence, it is subject to the
hearsay rule and its exceptions
An extrajudicial oath is one that is not taken
during judicial proceedings but taken formally
before a proper officer or magistrate, such as a
NOTARY PUBLIC
EXTRAORDINARY REMEDY
The designation given to such writs as habeas
corpus, mandamus, and quo warranto,
deter-mined in special proceedings and granted only
where absolutely necessary to protect the legal
rights of a party in a particular case, as opposed to
the customary relief obtained by the maintenance
of an action
Most states have eliminated extraordinary
remedies The relief formerly provided by them
can be sought through an ordinary action
EXTRATERRITORIALITY
The operation of laws upon persons existing
beyond the limits of the enacting state or nation
but who are still amenable to its laws Jurisdiction
exercised by a nation in other countries by treaty,
or by its own ministers or consuls in foreign lands
In INTERNATIONAL LAW, extraterritoriality exempts certain diplomatic agencies and per-sons operating in a foreign country from the jurisdiction of the host country Instead, the agency or individual remains accountable
to the laws of the native country The effects
of extraterritoriality extend to troops in passage, passengers on war vessels, individuals
on mission premises, and other agencies and persons
The concept of extraterritoriality stems from the writings of French legal theorist and jurist Pierre Ayraut (1536–1601), who proposed the theory that certain persons and things, while within the territory of a foreign sovereign, remained outside the reach of local judicial process Classical writers such as HUGO GROTIUS
(1583–1645) and Samuel von Pufendorf (1632–
94) gave Ayraut’s ideas greater circulation In
1788, the multilingual translation of Georg Friederich von Martens’s Summary of the Law
of Nations put the actual word extraterritoriality into the international vocabulary
Extraterritoriality for ambassadors and other diplomatic representatives gained widespread acceptance during the reign of Queen Anne of Great Britain (1665–1714) In this period, British officials arrested a Russian ambassador who had run up substantial debt to the British government An international incident ensued
as Russian officials and others throughout the world objected to Britain’s disregard for the diplomat’s immunity Because of the outcry, Britain passed the Act Preserving the Privileges
of Ambassadors in 1708 Other nations followed Britain’s example, and the United States enacted
an essentially identical statute in 1790
In the modern world, the UNITED NATIONS
has held a key position in upholding extraterri-torial law In a 1961 agreement made in Vienna, the U.N Conference on Diplomatic Intercourse and Immunities extended exemp-tion from the laws of host countries to the staff and family of DIPLOMATIC AGENTS In addition, officials of the United Nations and the members of the delegations of its member states receive extensive procedural, fiscal, and other immunities from the jurisdiction of the host country Separate and special arrangements govern the United States and Switzerland because the United States hosts the U.N
headquarters and Switzerland has U.N offices
in Geneva
EXTRATERRITORIALITY 321
Trang 4The general laws binding nations to extra-territorial agreements still rest on principle more than established order The modern, global marketplace has put an additional dimension into extraterritoriality The United States has consistently held that unless interna-tional jurisdiction conflicts are managed or mitigated, they have the potential to interfere seriously with the smooth functioning of international economic relations The United States has therefore declared that it cannot disclaim its authority to act where needed in defense of its national security, foreign policy,
or law enforcement interests
The policies of the United States with respect to extraterritoriality have caused crises
in other nations In 2002, two U.S servicemen allegedly killed two young girls in a traffic accident in South Korea Despite protests from South Koreans to have the servicemen tried in a Korean court, the soldiers were tried—and acquitted—by a U.S military court The treatment of the men caused anti-American protests throughout South Korea
FURTHER READINGS Castel, Jean-Gabriel 1988 Extraterritoriality in International Trade Toronto: Butterworths.
Fairley, H Scott 2008 “Introduction to: Perspectives on Universal Jurisdiction, Extraterritoriality and the Future
of Alien Tort Statute Litigation.” American Bar Association Available online at http://www.abanet.org/
intlaw/spring08/materials/Fairley%20-%20Introduc-tion.pdf; website home page: http://www.abanet.org (accessed September 2, 2009).
Hermann, A H 1982 Conflicts of National Laws with International Business Activities: Issue of Extraterritoriality.
London: British-North American Committee.
Kaiser, Hanno, David Fischer, and Manfred Gabriel 2009.
“Archive for the ‘Extraterritoriality’ Category.” Antitrust Review (February 23).
CROSS REFERENCES Ambassadors and Consuls; Diplomatic Agents; Diplomatic Immunity.
EXTREMIS
A description of the state of being ill beyond the hope of recovery, with death imminent
An individual who is so seriously ill as to be dying is said to be in extremis
EXTRINSIC EVIDENCE Facts or information not embodied in a written agreement such as a will, trust, or contract Extrinsic evidence is similar to extraneous evidence, which is not furnished by the document
in and of itself but is derived from external sources In contract law, PAROL EVIDENCE is extrinsic evidence since it is not within a contract but, rather, is oral and outside the instrument
CROSS REFERENCE Parol Evidence.
EYEWITNESS
An individual who was present during an event and is called by a party in a lawsuit to testify as to what he or she observed
The state and FEDERAL RULES OF EVIDENCE, which govern the admissibility of evidence in civil actions and criminal proceedings, impose requirements that must be met before the testimony of an eyewitness can be presented during trial For example, an eyewitness must be
COMPETENT(legally fit) and qualified to testify in court A witness who was intoxicated or insane
at the time the controverted event occurred will
be prevented from testifying, regardless of whether he or she was the only eyewitness to the occurrence
322 EXTREMIS
Trang 5SeeFEDERAL AVIATION ADMINISTRATION
FACE
The external appearance or surface of anything;
that which is readily observable by a spectator
The words contained in a document in their plain
or obvious meaning without regard to external
evidence or facts
The term is applied most frequently in
business law to mean the apparent meaning of a
contract, paper, bill, bond, record, or other such
legal document A document might appear to
be valid on its face, but circumstances may
modify or explain it, and its meaning or validity
can be altered
FACE VALUE
A readily ascertainable amount of money
deter-minable from the words of a written instrument
alone without the aid of any other source
The face value of an instrument such as a
financial document is only the amount shown
on it, without the inclusion of interest or fees
customarily added or reference to its actual
market value
FACSIMILE
An exact replica of a document that is copied so as
to preserve all its original marks and notations
FACT Incident, act, event, or circumstance A fact is something that has already been done or an action
in process It is an event that has definitely and actually taken place, and is distinguishable from a suspicion, innuendo, or supposition A fact is a truth as opposed to fiction or mistake
AQUESTION OF FACTin litigation is concerned with what actually took place During a trial, questions of fact are generally left for the jury to determine after each opposing side has pre-sented its case By contrast, aQUESTION OF LAWis ordinarily decided by a judge, who must deal with applicable legal rules and principles that affect what transpired
FACT AND LAW
A term used to denote issues or events that have taken place and the legal jurisdiction that governs how they are viewed Fact in legal terms, is the event, while law refers to the actual rules that determine how facts are viewed by the courts Lawyers and courts may separate fact and law to differentiate them; thus, a question of fact concerns the actual events of a case as they might be examined by a jury, while a question of law focuses on the legal rules and principles as determined by a judge, and applied to the facts by a jury
FACT SITUATION
A concise description of all the occurrences or circumstances of a particular case, without any
F
323
Trang 6discussion of their consequences under the law.
The fact situation, sometimes referred to as a fact pattern, is a summary of what took place in a case for which relief is sought The fact situation of one case is almost always distinguishable from that of another case
When one case with a particular fact situation has been decided, an attorney may use it as precedent and relate it to another similar case on which he or she is currently working
FACTOR
An event, circumstance, influence, or element that plays a part in bringing about a result
A factor in a case contributes to its causation
or outcome In the area ofNEGLIGENCE law, the factors, or chain of causation, are important in determining whether liability ensues from a particular action done by theDEFENDANT
FACTORS People who are employed by others to sell or purchase goods, who are entrusted with possession
of the goods, and who are compensated by either a commission or a fixed salary
A factor is a type of agent who sells goods owned by another, called a principal The factor engages more frequently in the sale of merchan-dise than the purchase of goods A factor is distinguished from a mere agent in that a factor must have possession of the principal’s property, while an agent need not The factor-principal relationship is created by a contract Both parties are expected to comply with the terms of the agreement The contract is terminable by the factor, by the principal, or byOPERATION OF LAW The merchandise entrusted to the factor is called a consignment, and a factor is often synonymously called a consignee The factor is sometimes referred to as a commission mer-chant when his or her compensation is based on
a percentage of the sale price Factorage is defined as the compensation paid to factors
A home factor is the name given to a factor who resides in the same state or country as the principal; a foreign factor is one who lives in a state or country other than that of the principal
Factor-Principal Relationship
Absent any special authority, a factor can bind the principal only in the ordinary course of
business The factor cannot delegate his or her duty to another individual without the knowl-edge and consent of the principal, unless custom and usage allow otherwise He or she has the implied power to do everything reasonably necessary to sell the goods entrusted
to him or her, and may even make the sale in his or her own name without disclosing the name of the principal The factor has the power
to receive payment and to give a receipt to the purchaser There is no authority given to the factor to use the goods for personal benefit, to make an exchange for other merchandise, to cancel a completed sale, or to extend the time of payment after a sale
A factor must exercise reasonable care, skill, and diligence in selling the goods and is responsible for losses resulting from failure to meet this standard He has a duty to act with
GOOD FAITH and loyalty for the protection and advancement of the interests of the principal and may not make a secret profit for himself Unless the principal agrees, the factor may not purchase the merchandise
The factor must faithfully execute the principal’s instructions and is liable for any loss resulting from failure to do so No liability will
be imposed if the instructions are vague, ambiguous, impossible to perform, or illegal,
or if the factor is obstructed from following them due to NO FAULT of his or her own The factor has a duty to inform the principal of any events that necessitate taking protective mea-sures to ensure the safety of the goods; this stems from the obligation to care for the goods
A factor who cares for the merchandise in a reasonable manner is not responsible for business losses not due to his fault He must not mingle the principal’s goods with his own
or with those of other people The factor has the authority to insure the goods and may do so in his name He must obtain insurance when instructed to do so by the principal, by the purchaser, or when custom imposes that obligation and must exercise reasonable pru-dence and diligence in securing adequate insurance coverage
In the absence of specific instructions, a factor may sell in such a manner and on such terms as he considers appropriate, generally within a REASONABLE TIME and at his business establishment When the time and location of the sale are specified in the agreement, the
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324 FACTOR
Trang 7factor must exercise reasonable diligence to sell
within the allotted time or at the authorized
place If the principal fails to designate a desired
price, the factor then has an obligation to sell
with reasonable skill and diligence so as to
obtain the highest price possible in the current
market When instructed to sell at a specified
price, he must do so, barring some
unforesee-able event
Goods are generally sold for cash upon
delivery When instructed to sell on credit, a
factor must exercise reasonable care and secure
collateral to ensure payments He is not liable
for any loss with regard to payment that occurs
through no fault of his own, unless he
specifically is made liable in the contract with
the principal Authority to arrange credit terms
customary in the market in which the goods are
sold is implied The factor must ascertain the
financial stability of a purchaser on credit and
must diligently advise the principal of any
adverse change in the creditor’s financial
standing He has no duty to divulge the name
of a purchaser who buys on credit unless the
information is needed for the principal to act on
the sale
Reasonable care and diligence must be taken
in collecting the price of merchandise sold on
credit A factor must account to the principal
for the proceeds and apply them in the
instructed manner He or she must not
commingle the proceeds with his or her own
money or with the funds of another, unless
there is an existing custom ofCOMMINGLING to
which the principal consents The proceeds are
held subject to the principal’s direction and,
unless required by agreement or priorCOURSE OF
DEALING, it is not necessary for the factor to
immediately tender them
A factor is liable to the principal when he
deals with the goods in a manner that is
inconsistent with the right of the principal A
violation of instructions, breach of duty,
misconduct, andFRAUDare grounds upon which
the principal may recover for damages incurred
Interest is recoverable if the factor delays in
remitting payment for goods after a sale
There is a duty to keep regular and accurate
accounts of all transactions, and the principal
has a right to inspect the accounts A factor has
no authority to settle a claim against the
principal, to submit a claim to ARBITRATION, or
to reship goods to another market in order to
sell them He may, however, give a warranty with respect to the quality of the goods
States regulate the activities of a factor by requiring licenses and imposing taxes To ensure the diligent performance of duties, some states have a factor post a bond before being allowed to conduct his business The primary purpose of the regulation is to protect persons who deal with factors against dishonest or unscrupulous persons
Compensation for Services
Compensation is a contractual right, and, subject to the terms and conditions of the agreement, commissions are paid when a sale is made When an express agreement or statute does not fix the amount of compensation, the factor is entitled to the just and reasonable remuneration customarily charged for these services In the absence of a customary rate, the factor has a right to receive a fee that is fair and reasonable Acts of fraud, misconduct,
GROSS NEGLIGENCE, and breach of contract would cause the factor to forfeit the right to compen-sation
The advancement of money due for the cost
of freight depends on the contract or course of dealing between the factor and principal When
a factor advances funds in connection with the goods in his care and is not reimbursed by the principal, the factor has a right to sell the goods
in order to satisfy the expenditures Any excess must be returned to the principal The factor is entitled to interest on any advances but forfeits the right to reimbursement and interest if his
NEGLIGENCE, fraud, or misconduct results in a loss for the principal
Enforcement
A factor has a general LIEN for all commissions due him and for all expenditures, including advances plus interest, properly incurred A factor’s lien secures the compensation, expenses, advances, and liabilities incurred by him for the principal A factor is not entitled to
a lien unless he has fulfilled all contractual and statutory requirements He must have actual or constructive possession of the goods before the lien attaches; and if the factor has constructive possession of the goods, he must have control over the property before a lien attaches Once attached, a lien is waived only by express terms
or by clear implication, such as when the factor acts in a manner that is inconsistent with its
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
FACTORS 325
Trang 8continuance Fraud or misconduct in transact-ing the principal’s business are other grounds for waiving a lien A factor may enforce his lien
by retaining the entrusted property until his claims are liquidated, or he may sell the goods
in order to satisfy his claims, returning any excess to the principal
FACTUM [Latin, Fact, act, or deed.] A fact in evidence, which is generally the central or primary fact upon which a controversy will be decided
FAILURE OF CONSIDERATION
As applied to contracts, this term does not necessarily mean a want of consideration, but implies that a consideration, originally existing
and good, has since become worthless or has ceased to exist or been extinguished, partially or entirely It means that sufficient consideration was contemplated by the parties at the time the contract was entered into, but either on account
of some innate defect in the thing to be given, or nonperformance in whole or in part of that which the promisee agreed to do, nothing of value can be
or is received by the promisee
FAILURE OF ISSUE Dying without having any children or without surviving children
Children are commonly referred to at law as issue of a marriage Whether or not a person has any issue becomes important in determining the heirs upon his or her death
FAILURE TO STATE A CLAIM Within a judicial forum, the failure to present sufficient facts which, if taken as true, would indicate that any violation of law occurred or that the claimant is entitled to a legal remedy Failure to state a claim is frequently raised as
a defense in civil litigation In some jurisdic-tions, such as California, the defense is called a
DEMURRER The successful invocation of this defense will result in the dismissal of the case Courts will not dismiss a complaint in which thePLAINTIFFhas a legal basis for a claim but has made a technical error that renders the complaint invalid In such a case, courts allow thePETITIONERto amend the complaint The defense of failure to state a claim is provided for in Federal Rule ofCIVIL PROCEDURE
12(b)(6) and in similar state court rules Rule 12 (b) states that defenses should be presented in the defendant’s response to the complaint However, the rule allows some defenses to be asserted in a separate motion to the court, including the defense that the plaintiff does not state a claim upon which relief can be granted The purpose of these exceptions is to allow aDEFENDANTto respond
to procedural flaws in the filing of the complaint without responding to the merits of the case Allowing the defendant to respond in a separate motion also allows the court to dismiss quickly civil claims that are without legal merit
Dawson v Wilheit, 735 P.2d 93 (1987), illustrates the dismissal of a suit for failure to state a claim In Dawson, the plaintiff brought
The Tudor line of
English monarchs
ended in 1603 when
Queen Elizabeth I
died wiithout issue.
She was succeeded
by her cousin, King
James VI of Scotland,
who became James I
of England.
LIBRARY OF CONGRESS
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
326 FACTUM
Trang 9suit against Farmington, New Mexico, police
officers as well as the city of Farmington and a
vehicle-towing service The suit was based on a
chain of events that had begun on November
20, 1983, when the son of the plaintiff had been
killed by two men, who had placed his body in
the trunk of a car owned by one of the men
Shortly thereafter, the car owner had been
arrested for driving while intoxicated
Under police department policy, a police
officer should have conducted an inventory of
the vehicle with an employee of the towing
service, but this did not happen After his
release from jail on the drunk-driving charge,
the car owner drove away from the lot and
dumped the body in a remote area, where it was
not discovered for six months
The plaintiffs sued, seeking COMPENSATORY
DAMAGES for negligent infliction of emotional
distress caused by the failure to conduct an
inventory and the resulting delay in finding the
body The district court dismissed the
com-plaint on the ground that the com-plaintiffs had
failed to state a claim On appeal, the Court of
Appeals of New Mexico affirmed the dismissal
Under basicNEGLIGENCElaw, no person may
be liable for the injuries of another unless he or
she breached a duty of care owed to the victim
According to the state’s high court, the police
department’s inventory policy was in place to
protect the police and towing company from
claims ofTHEFT, and the police owed no duty to
the plaintiffs to find a body when they were
unaware of a killing Thus, the plaintiffs had no
basis for their complaint, and their case had
been rightly dismissed for failure to state a
claim
FAIR COMMENT
A form of qualified privilege applied to news
media publications relating to discussion of
matters that are of legitimate concern to the
community as a whole because they materially
affect the interests of all the community A term
used in the defense of libel actions, applying to
statements made by a writer (e.g., in the news
media) in an honest belief in their truth, relating
to official acts, even though the statements are not
true in fact Fair comment must be based on facts
truly stated, must not contain imputations of
corrupt or dishonorable motives except as
war-ranted by the facts, and must be an honest
expression of the writer’s real opinion
Fair comment is a privilege under theFIRST AMENDMENTto the Constitution and also applies
to invasions of the right of privacy
In order for a statement to fall into the category of a fair comment, it must not extend beyond matters of concern to the public It must be a mere expression of the opinion of the commentator
CROSS REFERENCE Freedom of the Press.
FAIR CREDIT REPORTING ACT The Fair Credit Reporting Act (FCRA) is legislation embodied in title VI of theCONSUMER CREDIT PROTECTION ACT (15 U.S.C.A § 1681
et seq.[1968]), which was enacted by Congress
in 1970 to ensure that reporting activities relating to various consumer transactions are conducted in a manner that is fair to the affected individual, and to protect the consu-mer’s right to privacy against the informational demands of a credit reporting company
FCRA represents the first federal regulation
of the consumer reporting industry, covering all credit bureaus, investigative reporting compa-nies, detective and collection agencies, lenders’
exchanges, and computerized information reporting companies
The consumer is guaranteed several rights under the FCRA, including the right to a notice
of reporting activities, the right of access to information contained in consumer reports, and the right to the correction of erroneous information that may have been the basis for a denial of credit, insurance, or employment
When a consumer is denied an extension of credit, insurance, or employment owing to information contained in a credit report, the consumer must be given the name and address
of the CREDIT BUREAU that furnished the credit report Consumers are also entitled to see any report that led to a denial, but agencies are not required to disclose risk scores to them Risk scores (or other numerical evaluation, however named) are assigned by consumer reporting agencies to help clients interpret the agency’s report Credit agencies may not report adverse information older than seven years or bank-ruptcies older than ten years
The provisions of the FCRA apply to any report by an agency relating to a con-sumer’s creditworthiness, credit standing, credit capacity, character, general reputation,
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E
FAIR CREDIT REPORTING ACT 327
Trang 10personal characteristics, or mode of living The FCRA covers information that is used or expected to be used in whole or part as a factor in establishing the consumer’s eligibility for one of four purposes: (1) employment; (2) credit or insurance for personal, family, or household use; (3) government benefits and licenses to operate particular businesses or practice
a profession; and (4) other legitimate business needs Under the FCRA, an agency may also furnish a report in response to a court order or a federal GRAND JURY SUBPOENA, to a written authorization from the consumer, or to a summons from theINTERNAL REVENUE SERVICE The FCRA creates civil liability for consumer reporting agencies and users of consumer reports that fail to comply with its requirements For example, the Joneses, owners and operators of a real estate APPRAISAL business, sued a consumer reporting agency under the FCRA The Joneses claimed that the agency incorrectly reported a judgment against their business The Supreme Court of Appeals upheld a jury’s award, which included compensatory and PUNITIVE DAMAGES
(Jones v Credit Bureau of Huntington, Inc., 184 W.Va 112, 399 S.E.2d 694[1990]) A consumer reporting agency includes any person or corpo-ration that, for monetary fees, dues, or on a cooperative nonprofit basis, regularly assembles
or evaluates credit information or other infor-mation on consumers for the purpose of furnishing consumer reports to third parties, and uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports A retail depart-ment store or another comparable business that furnishes information to consumer reporting agencies based on its experience with consumers
is not considered a consumer reporting agency under the FCRA (DiGianni v Stern’s, 26 F.3d 346 [2d Cir 1994], cert denied, 513 U.S 897, 115 S
Ct 252, 130 L Ed 2d 173)
Since its enactment, the FCRA has not undergone major reform However, legislation has been proposed to address the issues that have arisen from a technological explosion created by a large increase in consumer debt and the information that it generates In addition, states have enacted comparable sta-tutes covering consumer’s rights
FURTHER READINGS Askew, Kim J 2001 “The Fair Credit Reporting Act:
Congress Expands the Privacy Rights of Employees ” Corporate Counsel’s Quarterly 17 (April).
“Bank’s Reporting to a Local Credit Bureau of Its Own Credit Experience with a Delinquent Borrower Was Not Covered by the Fair Credit Reporting Act ” 1995 The Banking Law Journal.
Blair, Roger D., and Virginia G Maurer 1984 “Statute Law and Common Law: The Fair Credit Reporting Act ” Missouri Law Review 49 (spring).
Jacquez, Albert S., and Amy S Friend 1993 “The Fair Credit Reporting Act: Is It Fair for Consumers?” Loyola Consumer Law Reporter.
Jamer, C.T 1998 “The SEC Speaks.” Practising Law Institute Corporate Law and Practice Course Hand-book Series.
Porter, J Isaac 1994 “Protecting against Disclosure of Consumer Data: A Complicated Issue ” Banking Policy Report.
Worsley, David E 2002 “Fair Credit Reporting Cases Illustrate Risks for Credit Reporting Agencies, Cred-itors, and Lawyers ” Consumer Finance Law Quarterly Report 56 (winter).
CROSS REFERENCES Consumer Credit; Consumer Protection.
FAIR HEARING
A judicial proceeding that is conducted in such a manner as to conform to fundamental concepts of justice and equality
During a fair hearing, authority is exercised according to the principle ofDUE PROCESS OF LAW Fair hearing means that an individual will have
an opportunity to present evidence to support his or her case and to discover what evidence exists against him or her
In CRIMINAL LAW, when an individual is arrested, a fair hearing means the right to be notified of the charge being brought against him
or her and the chance to meet that charge
In order for a hearing to be fair and comply with due process requirements, it must be held before an impartial tribunal; however, a hearing can be unfair without any intention that it be that way A fair hearing must provide a rea-sonable opportunity for an individual to be present at the designated time and place, during which time he or she may offer evidence, cross-examine opposition WITNESSES, and offer a defense Formalities of a court action need not
be strictly complied with in order for a proceeding to be considered a fair hearing
A fair hearing is not necessarily a fair trial The hearing might be an administrative one before the IMMIGRATION Board or the NATIONAL LABOR RELATIONS BOARD, for example, but fairness
is still required
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