These include the right to travel within the United States, the right to private property, the right to vote, the right to privacy, the right to procreation, and the right to marry.. The
Trang 1by the National Conference of Commissioners
on Uniform State Laws in 1968 By 1984 every state had adopted a version of the UCCJA In
1980, Congress passed the Parental KIDNAPPING
Prevention Act (28 U.S.C.A § 1738A), which aids enforcement and promotes finality in child custody decisions by providing that valid custody decrees are entitled to full faith and credit enforcement in other states The
VIOLENCE AGAINST WOMEN ACT OF 1994 (Pub L
No 103-322 [codified in scattered sections of 8 U.S.C.A., 18 U.S.C.A., 42 U.S.C.A.]) extends full faith and credit to the enforcement of protective orders, which previously were not enforced except in the state where they were rendered
This gave a new measure of protection to victims who moved to a different state after obtaining a protective order in one state
FURTHER READINGS Cooke, Edward F 2002 A Detailed Analysis of the Constitution Lanham, MD: Rowman & Littlefield.
Demelis, Linda M 1994 “Interstate Child Custody and the Parental Kidnapping Prevention Act: The Continu-ing Search for a National Standard ” Hastings Law Journal 45.
Hamilton, Heather 1998 “The Defense of Marriage Act:
A Critical Analysis of Its Constitutionality under the Full Faith and Credit Clause ” DePaul Law Review 47 (summer).
Hasegawa, Kaleen S 1999 “Re-Evaluating the Limits of the Full Faith and Credit Clause after Baker v General Motors Corporation ” Univ of Hawaii Law Review 21 (winter).
Olson, Thomas A 1995 “Rethinking Montana’s View of Interstate Custody Disputes.” Montana Lawyer 20.
Shuki-Kunze, Jeennie R 1998 “The ‘Defenseless’ Marriage Act: The Constitutionality of the Defense of Marriage Act as an Extension of Congressional Power under the Full Faith and Credit Clause ” Case Western Reserve Law Review 48 (winter).
vFULLER, MELVILLE WESTON Melville Weston Fuller served as chief justice
of the U.S Supreme Court from 1888 to 1910
Fuller’s term as chief justice was marked
by many decisions that protected big business from FEDERAL laws that sought to regulate interstate COMMERCE In addition, the Fuller Court’s restrictive reading of the FOURTEENTH AMENDMENT led it to render the infamous
SEPARATE BUT EQUAL racial segregation decision
in PLESSY V FERGUSON, 163 U.S 537, 16 S Ct
1138, 41 L Ed 256 (1896)
Fuller was born February 11, 1833, in Augusta, Maine He grew up in the household
of his maternal grandfather, the chief justice of the Maine Supreme Judicial Court Following his graduation from Bowdoin College in 1853,
he apprenticed in his uncles’ law offices and briefly attended Harvard Law School Even though he did not receive a law degree, he was the first chief justice of the U.S Supreme Court to serve with significant academic legal preparation Fuller moved to Chicago in 1856 and established a law practice An active member of the DEMOCRATIC PARTY, he served in the Illinois CONSTITUTIONAL Convention of 1861 and for one term (1862–64) in the state house
of representatives He attended as a DELEGATE
every national Democratic convention between
1864 and 1880
Fuller withdrew from day-to-day politics after he married Mary Ellen Coolbaugh, the daughter of a prominent Chicago banker, in
1866 His law practice thrived because of this family connection, and with his new wealth, he invested in real estate Fuller specialized in
APPELLATE practice, appearing before the U.S Supreme Court many times
Fuller’s appointment to the Court in 1888 was driven by presidential politics and his long service to the Democratic Party President Grover Cleveland, a Democrat who believed that it would be essential to win the state of Illinois as part of his re-election bid, nominated Fuller as chief justice to replace MORRISON R
WAITE, who had died in March 1888 Fuller and Cleveland were friends and political colleagues
At the time, the press described Fuller as “the most obscure man ever appointed Chief Justice” (Baker 1991, 360) Others were more unkind, dubbing him “the fifth best lawyer from the City of Chicago” (review of The Chief Justiceship
ofMELVILLE W.FULLER 1996, 109)
Fuller’s 22-year term as chief justice was distinguished by his skillful handling of often contentious Court conferences Justice OLIVER WENDELL HOLMES, JR thought highly of Fuller’s ability to maintain collegiality At the end of his own legal career, Holmes ranked Fuller as the best chief justice under whom he had served Fuller was an energeticJURISTwho also served on the Permanent Court of ARBITRATION, at The Hague, Netherlands That international organi-zation, comprising jurists from various coun-tries, ruled on world disputes In 1899 Fuller arbitrated a boundary dispute between Vene-zuela and British Guyana
18 FULLER, MELVILLE WESTON
Trang 2The U.S economy grew rapidly while Fuller
served as chief justice This expansion led to the
concentration of economic power in certain
industries by a small number of individuals and
corporations The federal government’s efforts
to regulate interstate commerce and to curtail
the power of monopolies and trusts met fierce
opposition from both the affected businesses
and those who believed in a restricted role
for the national government Opponents of
national power argued for continued adherence
to the doctrine ofFEDERALISM That doctrine has
many facets, including a fundamental
ASSUMP-TION that the national government must not
intrude on the power of the states to manage
their affairs
Fuller believed in federalism, and he
dem-onstrated this belief in his votes with the
conservative majority on the Court Writing
for the majority in United States v E C Knight
CO., 156 U.S 1, 15 S Ct 249, 39 L Ed 325
(1895), Fuller took the teeth out of theSHERMAN
ANTI-TRUST ACT of July 2, 1890, which had
declared illegal“every contract, combination in
the form of a trust, orCONSPIRACYinRESTRAINT OF
TRADEand commerce among the several states”
(26 Stat 209, c 647) finding in favor of the
Sugar Trust, a corporation that controlled
virtually all sugar refining, Fuller held that a
monopoly of manufacturing was not a
monop-oly of trade or commerce prohibited by the
Sherman Act, as the manufacture of a product
for sale is not commerce It was up to each state,
not the federal government, to protect its
citizens from monopolistic business practices
The mere fact that goods were transported in
interstate commerce was not sufficient to give
Congress, under the COMMERCE CLAUSE, the
authority to regulate business The holding in Knight survived until the NEW DEAL era of the 1930s, when power shifted to the federal government
Fuller’s belief in a limited role for the federal government was also demonstrated in Pollock v
Farmers’ Loan & Trust Co., 157 U.S 429, 15 S
Ct 673, 39 L Ed 759 (1895) In Pollock, Fuller ruled invalid a federal law that imposed a two-percent tax on incomes of more than $4,000
Article I of the Constitution requires that
“direct taxes shall be apportioned among the
Melville W Fuller.
LIBRARY OF CONGRESS
Melville Weston Fuller 1833–1910
❖
1833 Born,
Augusta, Me.
1910 Died, Sorrento, Me.
1914–18 World War I
◆
1856 Moved to Chicago and set
up a law practice
1861–65 U.S Civil War
1862–64 Served
in the Illinois House of Representatives
❖
1888–1910 Served as chief justice of the U.S.
Supreme Court, appointed by President Cleveland
◆◆ ◆
1895 Wrote majority opinions for United States v E.C.
Knight Co and Pollock v Farmers' Loan & Trust Co.
1899 Helped arbitrate the settlement of the boundary dispute between Venezuela and British Guiana
1896 Voted with the majority in Plessy v Ferguson to
uphold racial segregation in public transportation
FULLER, MELVILLE WESTON 19
Trang 3several states according to their respective numbers.” In a 5–4 vote, Fuller’s Court held that the newINCOME TAXwas aDIRECT TAXinsofar
as it was based on incomes derived from land and, as such, it had to be apportioned among the states As the law did not provide for
APPORTIONMENT, it was unconstitutional
Decisions such as Knight and Pollock led critics to call Fuller and the conservative members of the Court the puppets of business interests and the protectors of wealth In response to Pollock, the SIXTEENTH AMENDMENT
was ratified by the states in 1913, authorizing the collection of a federal income tax
Fuller’s most dubious distinction is that he voted with the majority in Plessy to uphold racial segregation in public transportation At issue in Plessy was an 1890 Louisiana law that required passenger trains that operated within the state to provide “separate but equal”
accommodations for the “white and colored races.” By a 7–1 vote, with one judge abstaining, the Court rejected the idea that the Fourteenth Amendment, enacted after the Civil War to preserve the CIVIL RIGHTS of newly freed slaves,
“could have been intended to abolish distinc-tions based uponCOLOR, or to enforce social, as distinguished from political, equality, or a
COMMINGLING of the two races upon terms unsatisfactory to either.”
With its focus on a limited national government and support of legally enforced racial segregation, the 22-year period of the Fuller Court has, in the words of legal historian Richard A Epstein, “often been regarded as a black hole of American Constitutional law.”
With the conservative political and legal renais-sance of the 1980s and 1990s, however, Fuller came back into favor, being regarded by some legal scholars as a jurist who was committed to economic development, market institutions, and limited government
Fuller died July 4, 1910, in Sorrento, Maine
FURTHER READINGS Baker, Liva 1991 The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes New York:
HarperCollins.
Ely, James W., Jr 1995 The Chief Justiceship of Melville W.
Fuller, 1888–1910 Columbia, SC: Univ of South Carolina Press.
Furer, Howard B., ed 1986 The Fuller Court, 1888–1910.
New York: Associated Faculty Press.
FUND
A comprehensive term for any money that is set aside for a particular purpose or that is accessible for the satisfaction of debts or claims
The term public funds is a colloquial label for the revenue of a government, state, or
MUNICIPAL CORPORATION
FUNDAMENTAL LAW The constitution of a state or nation; the basic law and principles contained in federal and state constitutions that direct and regulate the manner
in which government is exercised
FUNDAMENTAL RIGHT
A fundamental right is a core individual constitu-tional right that is given the highest degree of judicial deference
The Supreme Court has identified certain individual rights as fundamentalCONSTITUTIONAL
rights that must be protected from government restrictions To accomplish this objective, the Court has established the STRICT SCRUTINY test, which is the most rigorous standard of JUDICIAL REVIEW The Court will apply the scrutiny test only when a FUNDAMENTAL RIGHT or a SUSPECT CLASSIFICATION such as race is involved The government must have a compelling interest to restrict a fundamental right Even if the government has such an interest, it must show that the law or policy is the least restrictive means of achieving this goal
The fountainhead of fundamental rights is the Constitution’s BILL OF RIGHTS The FIRST AMENDMENT identifies the right to FREEDOM OF SPEECH, the right to religious freedom, and the right to freedom of association as funda-mental rights The SECOND AMENDMENT protects the right to keep and bear arms, which is viewed
as a core right The FIFTH AMENDMENT protects the right to DUE PROCESS OF LAW and the right against SELF-INCRIMINATION Over time the Supreme Court has acknowledged other funda-mental rights that are not explicitly stated in the Constitution These include the right to travel within the United States, the right to private property, the right to vote, the right to privacy, the right to procreation, and the right to marry The recognition of certain fundamental rights applied only to actions taken by theFEDERAL
government until the enactment of the FOUR-TEENTH AMENDMENTfollowing the Civil War This
IF THE PROVISIONS OF
THECONSTITUTION
CAN BE SET ASIDE
BY AN ACT OF
CONGRESS,WHERE
IS THE COURSE
OF USURPATION
TO END?
—M ELVILLE W ESTON
F ULLER
20 FUND
Trang 4amendment guaranteed individuals that state
governments could not deny them due process of
law,EQUAL PROTECTION of law, or all recognized
PRIVILEGES AND IMMUNITIES of law The Supreme
Court, concerned that the amendment gave too
much power to the federal courts, refused to read
these three clauses broadly until the late 1930s
The Court slowly began to apply fundamental
rights from the Constitution to the states,
selectively incorporating them into the
Four-teenth Amendment’s due process clause
Fundamental rights that are not specifically
stated in the Constitution have been based on
due process clauses of the Fifth and Fourteenth
Amendments The doctrine of SUBSTANTIVE DUE
PROCESSbars the government from infringing on
fundamental constitutional right Unlike
proce-dural process, where the administration of the
law is examined, substantive due process deals
with liberties that are not expressly listed in the
Bill of Rights but which are found to be essential
concepts of freedom and equality
Using substantive due process, the Supreme
Court has recognized the right to personal
autonomy, bodily integrity, self-dignity, sexual
identity, and SELF-DETERMINATION under the
umbrella of an individual’s right to privacy In
the 1960s, the Court used the right to privacy in
Griswold v Connecticut (381 U.S., 85 S Ct
1678, 14 L Ed 2d 510[1965]) to strike down a
law forbidding married adults from usingBIRTH
CONTROL The right to privacy was extended in
Eisenstadt v Baird (405 U.S 438, 92 S Ct 1029,
21 L Ed 2d 349 [1972]) The Court struck
down a state law that prohibited unmarried
persons from obtaining contraceptives This
decision paved the way for one of the most
controversial decision in U.S LEGAL HISTORY,
which was based on substantive due process:
Roe v Wade (401 U.S 113, 93 S Ct 705, 35 L
Ed 2d 147[1973]) The Court ruled that the due
process clause gave women the right to have an
ABORTIONduring the first trimester of pregnancy
without stateINTERFERENCE
Critics of substantive due process point to
the Roe decision as an example of the perils of
using the doctrine They contend that
substan-tive due process gives judges the ability to inject
their own values and prejudices into a
contro-versial issue Moreover, the use of this doctrine
to identify fundamental rights discredits the
judicial decision-making process and leads
many to believe the decision was illegitimate
In addition, critics note that later generations of justices have overturned substantive due process rulings, concluding that the right identified, such as liberty of contract, is not fundamental
Despite these criticisms, the Court used substantive due process in 2003 to overturn a
RULINGon homosexuality In Lawrence v Texas (539 U.S 558, 123 S Ct 2472, 156 L Ed 2d 508), the Court overturned a state law that made SODOMY between homosexuals a crime
JusticeANTHONY KENNEDY, writing for the major-ity, invoked Roe and the birth control decisions, stating that these cases made clear that the due process clause“has a substantive dimension of fundamental significance in defining the rights
of the person.” As a general rule, the state should not attempt to “define the meaning of the relationship or to set its BOUNDARIESabsent
INJURYto a person or abuse of anINSTITUTIONthe law protects.” If homosexuals wish to express their sexuality in certain conduct the Constitu-tion allows them“the right to make the choice.”
The Court’s decision to declare a due process right to consensual, intimate conduct again angered social conservatives, who claimed that the Court was applying its own pro-homosexual views rather than following the commands of the Constitution
The identification of fundamental rights is important Once given this status and the strict scrutiny review standard that makes it difficult for the government to impose restrictions, the right becomes one more piece in the foundation
of U.S.CONSTITUTIONAL LAW
FURTHER READINGS Flack, Horace Edgar 2003 The Adoption of the Fourteenth Amendment Birmingham, Ala.: Palladium Press.
Langran, Robert 2003 The Supreme Court: A Concise History New York: Peter Lang.
Tribe, Lawrence 2008 The Invisible Constitution New York:
Oxford Univ Press.
CROSS REFERENCES Rational Basis Test; Strict Scrutiny; Suspect Classification.
FUNGIBLE
A description applied to items of which each unit
is identical to every other unit, such as in the case
of grain, oil, or flour
FUNGIBLEgoods are those that can readily be estimated and replaced according to weight, measure, and amount
FUNGIBLE 21
Trang 5FURMAN V GEORGIA
In Furman v Georgia, 408 U.S 238, 92 S Ct
2726, 33 L Ed 2d 346 (1972), the U.S Supreme Court struck down three death sentences, finding that they constitutedCRUEL AND UNUSUAL PUNISHMENT in violation of the Eighth and Fourteenth Amendments to the U.S Constitu-tion Hailed, at the time, as a victory for opponents of the death penalty, Furman actually helped states rewrite their death penalty laws to passCONSTITUTIONALmuster
The path to Furman began in 1962 with
ROBINSON V CALIFORNIA, 370 U.S 660, 82 S Ct
1417, 8 L Ed 2d 758 In Robinson, the U.S
Supreme Court ruled that the Cruel and Unusual Punishments Clause could be applied to the states through the FOURTEENTH AMENDMENT Opponents of the death penalty saw thisRULING
as an opportunity to litigate the constitutionality
of state death penalty cases inFEDERALcourt Furman centered on the convictions and death sentences of three African American men: William Henry Furman was convicted in Georgia for murder, Lucious Jackson was convicted in Georgia forRAPE, and Elmer Branch was convicted
in Texas for rape The juries in each of the cases were not mandated by law to vote for the death penalty, nor were they given specific criteria to evaluate in making their penalty decisions The U.S Supreme Court issued aPER CURIAM
opinion, on a 5–4 vote to reverse the death sentences The Court typically issues its deci-sions with a majority opinion written and signed by one the justices On rare occasions the Court will issue a per curiam decision, which takes the form of a BRIEF, unsigned opinion A per curiam decision signifies that the Court was deeply divided over the reasons that went into its ultimate decision to either affirm
or reverse the lower court
All nine justices wrote a separate opinion to articulate their reasoning Although five justices voted to reverse the death sentences, their concurring opinions revealed that it was a shaky coalition JusticesWILLIAM O.DOUGLAS, William J Brennan Jr., and THURGOOD MARSHALL doubted that any application of the death penalty could avoid being a cruel and unusual punishment Justice Douglas concluded that the death penalty was disproportionately applied to people who were poor and socially disadvantaged This disproportion suggested that theEQUAL PROTECTION
Clause of the Fourteenth Amendment must be applied to strike down the death penalty because any inequality of application was cruel and unusual punishment Douglas’s opinion raised the possibil-ity that proportionate application would make
CAPITAL PUNISHMENTconstitutional
Justices Brennan and Marshall staked out an absolutist position, finding the death penalty per se cruel and unusual punishment, given the“evolving standards of decency” they saw in contemporary U.S society This meant that no matter theFACT SITUATION, no matter the proper application of due process and equal protection, capital punishment was inherently unconstitutional
The most influential opinion came from JusticePOTTER STEWART:
The penalty of death differs from all other forms of criminal punishment, not in degree
Elmer Branch, one
of the plaintiffs in
Furman v Georgia,
holds out a newspaper
to another death row
inmate after the
Supreme Court held
that the death penalty
constituted cruel and
unusual punishment.
AP IMAGES
22 FURMAN V GEORGIA
Trang 6but IN KIND It is unique in its rejection of
rehabilitation of the CONVICT as a basic
purpose of criminal justice And it is unique,
finally, in itsABSOLUTErenunciation of all that
is embodied in our concept of humanity
Stewart held that because death was different
from any other punishment, it had to be
administered rationally and fairly He rejected
the absolutist position of Brennan and Marshall,
yet still voted to reverse the penalties of Furman,
Jackson, and Branch because he believed their
death sentences were imposed capriciously
Stewart looked at the circumstances
sur-rounding the imposition of the three death
sentences The juries in these cases had been
given unbridled discretion to do what they
wished in deciding whether to impose capital
punishment The result, in Stewart’s view, was
that the death penalty was “wantonly and
freakishly imposed.” These death sentences
were “cruel and unusual in the same way that
being struck by lightning is cruel and unusual.”
Justice BYRON R WHITE took a slightly
different tack, concluding that the infrequency
of execution prevented the penalty from serving
as an effective deterrent and from consistently
meeting legitimate social needs for retribution
Chief Justice WARREN E.BURGERdissented, as
did JusticesHARRY A.BLACKMUN, Lewis F Powell
Jr., and WILLIAM H REHNQUIST The dissenters
argued that the Court was straying into an area
properly delegated to the judgment of state
legislatures The private opinions of justices
about the morality of capital punishment, they
opined, should not be presented as public policy
in a court of law
The Furman decision stopped all executions
then pending in the 39 states that authorized the
death penalty More than six hundred persons
were awaiting execution at the time Faced with
a splintered Supreme Court decision, states had
three options: develop mandatory death
sen-tences for crimes that were carefully defined by
STATUTE, develop jury guidelines to reduce juror
discretion, or abolish capital punishment
The state of Georgia chose to develop
guidelines for jurors Once a person is convicted
in a capital trial, the jury must determine, in the
penalty phase, whether any unique aggravating
and MITIGATING CIRCUMSTANCES should be
con-sidered before the court decides whether to
impose a death sentence In 1976, the U.S
Supreme Court upheld these jury guidelines in
GREGG V.GEORGIA, 428 U.S 153, 96 S Ct 2909,
49 L Ed 2d 859 With the Gregg decision, the four-year moratorium on the death penalty ended and, according to some, launched the modern era of capital punishment
FURTHER READINGS Baldus, David C., et al 1998 “Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia ” Cornell Law Review 83 (September).
Banner, Stuart 2003 The Death Penalty: An American History Cambridge, MA: Harvard Univ Press.
Sarat, Austin 1998 “Recapturing the Spirit of Furman: The American Bar Association and the New Abolitionist Politics ” Law and Contemporary Problems 61 (au-tumn) Available online at http://www.law.duke.edu/
shell/cite.pl?61+Law+&+Contemp.+Probs.+5+(Au-tumn+1998); website home page: http://www.law.duke.
edu (accessed July 25, 2009).
CROSS REFERENCE Incorporation Doctrine.
FUTURE ACQUIRED PROPERTY Property that is received or obtained by a borrower subsequent to the date that he or she executes a loan agreement which offers property currently owned as collateral
FUTURE ACQUIRED PROPERTY, which is also known as after-acquired property, encompasses both personal property and real property and provides additionalCOLLATERALto ensure that a loan will be satisfied There must, however, be a provision in the loan agreement between the borrower and the lender that gives the lender a right to the specific property of the borrower that he or she acquires subsequent to the execution of the agreement
SECURED TRANSACTIONS frequently involve the treatment of personal property as future acquired property For example, a debtor who owns a retail store might accept a future acquired property provision in a security agreement with
a creditor in order to obtain funds to buy addi-tionalINVENTORY The purchase of new inventory constitutes additional collateral that ensures the satisfaction of the loan Language commonly used to phrase a future acquired property term in
a contract is “any or all obligations covered by the security agreement are to be secured by all inventory now or HEREAFTER acquired by the debtor.”
Mortgages, particularly those affecting com-mercial properties, involve the treatment of real
FUTURE ACQUIRED PROPERTY 23
Trang 7property as future acquired property The mortgagee (who is the lender) will include in the mortgage an AFTER-ACQUIRED PROPERTY CLAUSE
which provides that the mortgagee will have an equitable lien, which is a right to have property used to repay a debt, in all the real property that the mortgagor (who is the borrower) obtains after the mortgage is executed For example, ABC Co owns BLACKACRE and borrows funds from XYZ Bank ABC executes a note and mortgage on Blackacre to XYZ, which XYZ records The mortgage also contains an after-acquired property clause When ABC subse-quently purchases WHITEACRE to serve as its warehouse, XYZ automatically obtains an equi-table lien in Whiteacre Because a mortgage with
an after-acquired property clause cannot be traced through an examination of the CHAIN OF TITLEof the after-acquired property, anyone who subsequently buys or has a lien against the mortgagor’s property has no notice of the equitable lien of the mortgagee Such purchasers
or lienors might, therefore, have greater rights to the property than the mortgagee if they took the property in GOOD FAITHand without notice The mortgagee must take additional steps to protect the priority of his or her lien in future acquired property It is a common practice for mortgage lenders to require that the mortgagor execute a recordable amendment to his or her mortgage describing in detail the future acquired property immediately after its acquisition
The treatment of future acquired property varies, however, fromJURISDICTIONto jurisdiction
FUTURE EARNINGS Earnings that, if it had not been for an injury, could have been made in the future, but which were lost as result of the injury
FUTURE INTEREST
A claim on property, real or personal, that will begin at some point in the future A future interest allows the grantor to retain the right to use that property until the specified transfer date Future interest agreements are often used by donors for tax purposes For example, a person may grant a future interest in his or her home to a charity, with the stipulation that he will retain use of the home for the remainder of his life, also called a “life estate” Although the charity will not receive the property until the donor’s death, the donor can claim a tax deduction the same year the future interest is granted Also called future estate
CROSS REFERENCES Bequest; Will.
FUTURES Contracts that promise to purchase or sell standard commodities at a forthcoming date and
at a fixed price
This type of contract is an extremely speculative transaction and ordinarily involves such standard goods as rice or soybeans Profit and loss are based upon promises to deliver—as opposed to possession of—the actual commodities
24 FUTURE EARNINGS
Trang 8GAG ORDER
A court order to gag or bind an unruly defendant
or remove her or him from the courtroom in order
to prevent further interruptions in a trial In a
trial with a great deal of notoriety, a court order
directed to attorneys and witnesses not to discuss
the case with the media—such order being felt
necessary to assure the defendant of a fair trial A
court order, directed to the media, not to report
certain aspects of a crime or criminal investigation
prior to trial
Unruly defendants who disrupt trials are
very rarely literally gagged in modern courts
However, the U.S Supreme Court has upheld
the constitutionality of the PRACTICE in cases
where aDEFENDANT is particularly disruptive In
Illinois v Allen, 397 U.S 337, 90 S Ct 1057, 25
L Ed 2d 353 (1970), the Court affirmed that
gagging or binding the defendant, or removing
him or her from the courtroom, does not
violate the Confrontation Clause of the SIXTH
AMENDMENT to the U.S Constitution, which
holds,“In all criminal prosecutions, theACCUSED
shall enjoy the right to be confronted with
the witnesses against him.” According to
ASSOCIATE JUSTICEHugo L Black, who wrote the
Court’s opinion,
[A] defendant can lose his right to be present
at trial if, after he has been warned by the
judge that he will be removed if he continues
his disruptive behavior, he nevertheless
insists on conducting himself in a manner
so disorderly, disruptive, and disrespectful of
the court that his trial cannot be carried on with him in the courtroom Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing
to conduct himself consistently with the decorum and respectINHERENTin the concept
of courts and judicial proceedings
Of the three methods that the Court found available to a judge when faced with a disruptive defendant—gag and shackles, CITATION for
CONTEMPT of court, and physical removal—the Court held that a gag and shackles should be considered the option ofLAST RESORT According
to the Court,
Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold
One of the few modern instances of literal gagging occurred in the 1968CHICAGO EIGHTtrial (sometimes called the Chicago Seven trial because one defendant was removed) In that trial,FEDERAL
judge Julius J Hoffman ordered Black Panthers leader Bobby Seale bound and gagged after Seale and Hoffman engaged in vociferous argument during the trial Seale still managed to disrupt the proceedings He was then removed from the trial and tried separately
Courts may attempt to control prejudicial publicity by restricting the information that trial
G
Trang 9participants can give to the press both before and during a trial This remains the type ofGAG ORDERmost frequently used by courts
Another type of gagORDER was for a while used by courts to restrict the press from reporting certain facts regarding a trial This gag order became more common after the Supreme Court’s 1966 decision in Sheppard v
Maxwell, 384 U.S 333, 86 S Ct 1507, 16 L Ed
2d 600, in which it reversed a criminal
CONVICTION on the grounds that PRETRIAL PUBLICITY had unfairly prejudiced the jury against the defendant and denied him his Sixth Amendment right to a fair trial However, in a
1976 decision, Nebraska Press Ass’n v Stuart,
427 U.S 539, 96 S Ct 2791, 49 L Ed 2d 683, the Court held that pretrial gag orders on the press are unconstitutional It ruled that such orders represent an unconstitutional PRIOR RESTRAINT and violate the FIRST AMENDMENT, which guarantees theFREEDOM OF THE PRESS
FURTHER READINGS
“Challenges to Gag Orders End in Mixed Results.” 2000.
News Media & the Law 24 (spring).
Minnefor, Eileen A 1995 “Looking for Fair Trials in the Information Age: The Need for More Stringent Gag Orders against Trial Participants ” Univ of San Francisco Law Review 30 (fall).
Weiss, Eric A., and Debra L Slifkin 1999 “Enforceability of Rule 26(c) Confidentiality Rrders and Agreements ” Federation of Insurance & Corporate Counsel Quarterly
49 (winter).
CROSS REFERENCE Sheppard, Samuel H.
GAG RULE
A rule, regulation, or law that prohibits debate or discussion of a particular issue
Between 1836 and 1844, the U.S House of Representatives adopted a series of resolutions and rules that banned petitions calling for the
ABOLITION ofSLAVERY Known as gag rules, these measures effectively tabled antislavery petitions without submitting them to usual House proce-dures Public outcry over the gag rules ultimately aided the antislavery cause, and the fierce House debate concerning their future anticipated later conflicts over slavery
The submission of petitions to Congress has been a feature of the U.S political system ever since its inception The FIRST AMENDMENTto the U.S Constitution guarantees “the right of the people to petition the Government for a
REDRESS of grievances.” First used in England, petitions have been considered an important means for the people to communicate grie-vances to their representatives or other public officials
When the first GAG RULE was instituted in
1836, House protocol required that the first thirty days of each session of Congress be devoted to the reading of petitions from constituents After those 30 days, petitions were read in the House every other Monday Each petition was read aloud, printed, and assigned
to an appropriate committee, which could choose to address or ignore it This traditional procedure had been interrupted in 1835, when the House began to receive a large number of petitions advocating the abolition of slavery Many of the petitions were organized by the American Anti-Slavery Society, which had formed in 1833
Southern representatives, many of whom were slave owners and entertained no thoughts
of abolishing slavery, were outraged by the antislavery petitions In December 1835, south-erners, uniting with northern Democrats, won a vote to table a petition that called for the abolition
of slavery in the DISTRICT OF COLUMBIA Breaking established precedent, the pro-slavery faction also won a vote to deny the petition its usual discussion, printing, and referral to committee This procedure for the “gagging” of aboli-tion petiaboli-tions was made into a formal resoluaboli-tion
by the House on May 26, 1836: “All petitions, memorials, resolutions, propositions, or papers, relating in any way, or to any extent whatsoever,
to the subject of slavery or the abolition of slavery, shall, without being either printed or referred, be laid on the table and no further action whatever shall be had thereon.” The resolution incited strong opposition from many northerners, who perceived it as a violation of their time-honored CIVIL RIGHTS JOHN QUINCY ADAMS, a former president and now a represen-tative from Massachusetts, emerged as the leader of an effort to revoke the new resolution
JOHN C.CALHOUN (D-S.C.), although a member
of the Senate rather than the House,
orchestrat-ed the battle to preserve it
The pro-slavery faction succeeded in renew-ing the gag resolution, which expired at the end
of each session of Congress, in both sessions
of the Twenty-fifth Congress (1837–39) On January 28, 1840, it succeeded again when it
26 GAG RULE
Trang 10won a vote to turn the resolution into House
Rule 21 (in later versions, Rules 23 and 25):
No petition, memorial, resolution, or other
paper praying the abolition of slavery in the
District of Columbia, or any State or
Territory, or the slave trade between the
States orTERRITORIES OF THE UNITED STATES, in
which it now exists, shall be received by this
House, or entertained in any way whatever
As a formal House rule rather than a
resolution, the gag rule was now a permanent
part of House procedure and did not have to be
renewed by vote each session
This new gag rule provoked even stronger
opposition Whereas the previous gag resolution
tabled antislavery petitions after they were
received, the new gag rule did not allow
petitions to be received It was also more
extreme than the Senate’s approach, which
was to receive such petitions but answer them
in the negative As a result of these changes,
northerners who had previously supported the
gag now joined Adams in opposing it Several
years later, on December 3, 1844, those opposed
to the gag rule finally succeeded in rescinding it
The term gag rule has also been applied to
presidential regulations banning ABORTION
counseling by employees of family planning
clinics that received a particular type ofFEDERAL
funding
FURTHER READINGS
Holmes, Stephen 1988 “Gag Rules, or the Politics of
Omission ” In John Elster and Rune Slagstad, eds.
Constitutionalism and Democracy Cambridge:
Cam-bridge Univ Press
Jenkins, Jeffrey A., and Charles Stewart III 2003 “The Gag
Rule, Congressional Politics, and the Growth of
Anti-Slavery Popular Politics ” Available online at http://th.
myweb.uga.edu/gagrule.pdf; website home page: http://
th.myweb.uga.edu (accessed September 3, 2009).
Miller, William Lee 1996 Arguing about Slavery: The Great
Battle in the United States Congress New York: Knopf.
CROSS REFERENCE
Congress of the United States.
GAME
Wild birds and beasts The word includes all game
birds and game animals
The state, in its sovereign power, owns game
for the benefit of the general public The only
manner in which a private individual can
acquire ownership in game is by possessing it
lawfully such as by hunting and killing it under
a license
Generally, every individual has the right to hunt and take game in any public place where his
or her presence is lawful, so long as the person neither violates statutory regulations nor injures
or infringes upon the rights of others A hunter does not acquire anABSOLUTEright to a wild animal
by mere pursuit alone, and the individual forfeits any potential ownership by abandoning the chase prior to capture The exclusive right to hunt or take game on privately owned property vests in the owner or his or her grantees ThisPROPERTY RIGHTof the owner is limited by the right of the state to regulate and preserve the game for public use A suit for trespass may be brought against one who interferes with another’s right to hunt
A statute that proscribes the hunting of game without a license, and that requires the payment
of a fee for such license, constitutes a proper exercise of the police power of the state
Game laws govern the killing or taking of birds and beasts Game wardens ordinarily can arrest violators, seize illegally taken game, bring actions for trespass, or INSTITUTE prosecutions for violations of the game laws
An Ohio hunter displays a trophy buck taken during deer hunting season Game laws govern the killing
or taking of birds and beasts.
AP IMAGES
GAME 27