Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P17 pps

ULTRA VIRES The term ultra vires, which is Latin for “beyond the powers,” is the doctrine in the law of corporations that holds that if a corporation enters into a contract that is beyon

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Procedure, which were adopted in 1938, elimi-nated the ultimate fact requirement and changed the philosophy behind the plaintiff’s complaint and the defendant’s answer In place of ultimate facts, rule 8(a) provides that the complaint shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Likewise, the defendant “shall state in short and plain terms” the defenses to the plaintiff’s complaint The rules do not require that only facts be alleged Most states have adopted the federal rules in whole or in part, and the need to state ultimate facts in a pleading is no longer of great importance

ULTRA VIRES The term ultra vires, which is Latin for “beyond the powers,” is the doctrine in the law of corporations that holds that if a corporation enters into a contract that is beyond the scope of its corporate powers, the contract is illegal

The doctrine of ultra vires played an important role in the development of corporate powers Though largely obsolete in modern private corporation law, the doctrine remains in full force for government entities An ultra vires act is one beyond the purposes or powers of a corporation

The earliest legal view was that an ultra vires act was void Under this approach a corporation was formed only for limited purposes and could

do only what it was authorized to do in its corporate charter For example, under traditional ultra vires doctrine, a corporation that had as its purpose the manufacturing of shoes could not, under its charter, manufacture motorcycles

This early view proved unworkable and unfair It permitted a corporation to accept the benefits of a contract and then refuse to perform its obligations on the ground that the contract was ultra vires The doctrine also impaired the security of title to property in fully executed transactions in which a corpora-tion participated Therefore, the courts adopted the view that such acts were VOIDABLE rather than void and that the facts should dictate whether a corporate act should have effect In the motorcycle example under modern corpo-rate law, the purposes clause would either be so general as to allow the corporation to go into the motorcycle business, or the corporation would amend its purposes clause to reflect the new venture

Over time a body of principles developed that prevented the application of the ultra vires doctrine These principles included the ability of shareholders to ratify an ultra vires transaction; the application of the doctrine ofESTOPPEL, which prevented the defense of ultra vires when the transaction was fully performed by one party; and the prohibition against asserting ultra vires when both parties had fully performed the contract The law also held that if an agent of a corpora-tion committed a TORT within the scope of the agent’s employment, the corporation could not defend on the ground that the act was ultra vires Despite these principles, the ultra vires doctrine was applied inconsistently and erratically Accordingly, modern corporation law has sought

to remove the possibility that ultra vires acts may occur More important, multiple purposes clauses and general clauses that permit corporations to engage in any lawful business are included in the

ARTICLES OF INCORPORATION In addition, purposes clauses can be easily amended if the corporation seeks to do business in new areas

State laws in almost every jurisdiction have also sharply reduced the importance of the ultra vires doctrine For example, section 3.04(a) of the Revised Model Business Corporation Act, drafted in 1984, states that “the validity of corporate action may not be challenged on the ground that the corporation lacks or lacked power to act.” There are three exceptions to this prohibition: It may be asserted by the corpora-tion or its shareholders against the present or former officers or directors of the corporation for exceeding their authority, by the attorney general of the state in a proceeding to dissolve the corporation or to enjoin it from the transac-tion of unauthorized business, or by shareholders against the corporation to enjoin the commis-sion of an ultra vires act or the ultra vires transfer

of real orPERSONAL PROPERTY Government entities created by a state are public corporations governed by municipal charters and other statutorily imposed grants

of power These grants of authority are analo-gous to a private corporation’s articles of incorporation Historically, the ultra vires concept has been used to construe the powers

of a government entity narrowly Failure to observe the statutory limits has been character-ized as ultra vires

In the case of a private business entity, the act of an employee who is not authorized to act

on the entity’s behalf may, nevertheless, bind

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the entity contractually if such an employee

would normally be expected to have that

authority With a government entity, however,

to prevent a contract from being voided as ultra

vires, it is normally necessary to prove that the

employee actually had authority to act Where a

government employee exceeds her authority,

the government entity may seek to rescind the

contract based on an ultra vires claim

FURTHER READINGS

Greenfield, Kent 2001 “Ultra Vires Lives? A Stakeholder

Analysis of Corporate Illegality ” Virginia Law Review

87 (November).

Mizushima, Tomonori 2001 “The Individual as Beneficiary

of State Immunity: Problems of the Attribution of Ultra

Vires Conduct ” Denver Journal of International Law

and Policy (summer-fall).

Pepper, George Wharton 1895 “The Unauthorized or

Prohibited Exercise of Corporate Power ” Harvard Law

Review 9 (November).

Snodgrass, Frank R 1995 Dealing with Governmental

Entities New York: Practising Law Institute.

CROSS REFERENCES

Estoppel; Scope of Employment.

UMPIRE

A person chosen to decide a question in a

controversy that has been submitted to

ARBITRA-TION but has not been resolved because the

arbitrators cannot reach agreement, or one who

has been chosen to be a permanent arbitrator for

the duration of a collective bargaining agreement

Arbitration is the submission of a dispute

to an unbiased third person designated by the

parties to the controversy, who agree in advance

to comply with the decision Arbitration is

quicker, less expensive, and more informal than

a court proceeding Commercial arbitration

and labor arbitration are commonplace in the

United States Persons who hear these types of

dispute resolution cases are called arbitrators

and umpires Umpires are used either to break

an impasse in arbitration or to serve as

spe-cialized, long-term decision makers

An arbitrator is a person selected by the

parties to hear the dispute An arbitrator must

be mutually agreed upon by the parties and may

be named, for example, in a labor-management

COLLECTIVE BARGAINING agreement or may be

chosen after the dispute has arisen In labor

arbitration a single arbitrator may hear a case,

but frequently a three-member arbitration panel

hears the dispute The three members consist of

an arbitrator selected by management, another chosen by labor, and a chairperson selected either by the parties or by the two arbitrators appointed by the parties The arbitrators selected

by the parties act like advocates, but the chair-person is expected to be neutral

If the three-person panel cannot agree on

a decision, the arbitrators may name an umpire

to decide the controversy The umpire acts independently and is vested with the sole authority to decide the issues that have been presented

An umpire is also sometimes used in labor-management grievance proceedings In this situ-ation a single, permanent umpire is appointed

to resolve disputes for the term of the collective bargaining agreement The umpire becomes familiar with the economic, financial, and day-to-day working conditions of an industry and may rely on precedents developed by previous umpires This form of umpire system began in the anthracite coal mining industry in the early 1900s and has been used in other industries, including clothing manufacturing and newspa-per printing

CROSS REFERENCES Alternative Dispute Resolution; Grievance Procedure; Labor Law; Labor Union.

UNAUTHORIZED PRACTICE Unauthorized practice refers to the performance

of professional services, such as the rendering of medical treatment or legal assistance, by a person who is not licensed by the state to do so

The unauthorized practice of a profession is prohibited by state laws Violators of these laws are generally subject to criminal sanctions, but what constitutes unauthorized practice is con-stantly changing and is the subject of dispute

For example, persons opposed to laws that ban the unauthorizedPRACTICE OF LAWargue that the legal profession uses these statutes to maintain

a monopoly over legal services, many of which can be performed by nonlawyers

The professions have sought the enactment

of unauthorized practice statutes in part to protect the public from persons who are not trained to give professional assistance and who may give substandard treatment The elements of a profession include a rigorous course of training, the certification of compe-tency by a professional society or state agency,

UNAUTHORIZED PRACTICE 149

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state licensure, and an obligation to follow a code

of ethics Based on these elements, the profes-sions and most state legislatures believe that the PUBLIC INTEREST is best served by restricting the performance of medical, legal, and other services to the members of their respective professions

The unauthorized practice of law has become a matter of public debate Nonlawyers can read laws, interpret laws, draft documents, and proceed in legal matters on their own behalf, but in most states they cannot draft documents for others, give specific legal advice, or appear

in court for another person Nevertheless, most states allow nonlawyers to sell legal forms and general instructions and offer typing services for completing legal documents Those critical

of lawyers contend that nonlawyers should be permitted to draft simple legal documents because they can provide their services at a considerably lower price than an attorney

The existence of statutes prohibiting the unauthorized practice of law does not guarantee that those statutes will be enforced, an issue that

is a concern to the legal profession Enforcement

is difficult both because proof of the unautho-rized practice of law is difficult to obtain and because many prosecutors place a low priority

on pursuing these violations This situation in law is distinct from, for example, the unautho-rized practice of medicine Individuals that present themselves as licensed doctors, treating

or diagnosing patients, are more likely to face prosecution in a criminal court

In 1998, Nolo Press, a Berkeley, California, publisher of popular legal self-help books, found itself the target of the Texas Unauthorized Practice of Law (UPL) committee This commit-tee, a subcommittee of the TexasSUPREME COURT, claimed that Nolo’s products put individuals at risk because consumers saw Nolo as a legitimate and “official” legal resource Nolo contended that it was in no way representing itself as a substitute for actual legal advice The company’s goal was to provide legal information to con-sumers in plain English, thus allowing them to decide whether to seek further advice or handle their legal problems themselves Nolo sued the UPL, claiming among other things, that the committee’s attempt to bar Nolo publications was in violation of the FIRST AMENDMENT Nolo was joined in the suit by the Texas Library Association and the American Association of

Law Librarians Numerous organizations criti-cized the UPL committee’s action, including many Nolo customers In June 1999, the Texas State Legislature passed HB 1507, which exempts self-help legal materials, such as Nolo’s, from UPL prosecution as long as the materials contain disclaimers that they do not constitute actual legal advice (Nolo’s products had carried such disclaimers for many years.) The case against Nolo was officially dropped on September 21, 1999

A person who has been harmed by relying

on the advice of someone not authorized to practice a profession may sue that person in a tort action for damages sustained

FURTHER READINGS McCullough, Todd 2003 Crossing the Line: What CPAs Need to Know about the Unauthorized Practice of Law Dublin, Ohio: Catalyst by the Ohio Society of Certified Public Accountants.

Munneke, Gary A 2003 Law Practice Management in a Nutshell West Group.

CROSS REFERENCE License.

UNCONSCIONABLE Unusually harsh and shocking to the conscience; describing something that is so grossly unfair that

a court will proscribe it

When a court uses the word unconscionable

to describe conduct, it means that the conduct does not conform to the dictates of conscience

In addition, when something is judged uncon-scionable, a court will refuse to allow the perpetrator of the conduct to benefit

In contract law, an unconscionable contract is one that is unjust or extremely one-sided in favor

of the person who has the superior bargaining power No person who is mentally competent would enter into it, and no fair and honest person would accept it Courts find that unconscionable contracts usually result from the exploitation of consumers who are often poorly educated, impoverished, and unable to find the best price available in the competitive marketplace Contractual provisions that indicate gross one-sidedness in favor of the seller include provisions that limit damages against the seller, limit the rights of the purchaser to seek relief against the seller in court, or disclaim aWARRANTY State and federalCONSUMER PROTECTIONand CON-SUMER CREDITlaws were enacted to prevent many

150 UNCONSCIONABLE

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of these unconscionable contract provisions from

being included in sales contracts

Unconscionability is determined by

exam-ining the circumstances of the parties when the

contract was made; these circumstances include

the bargaining power, age, and mental capacity

of the parties The doctrine is applied only

where it would be an affront to the integrity of

the judicial system to enforce such contracts

Unconscionable conduct is also found in

acts of FRAUD and deceit, where the deliberate

MISREPRESENTATIONof fact deprives someone of a

valuable possession Whenever someone takes

unconscionable advantage of another person,

the action may be treated criminally as fraud or

civilly as deceit

FURTHER READINGS

Calamari John D and Joseph M Perillo 2004 Contracts 4th

ed St Paul, Minn.: Thomson/West.

Farnsworth, E Allan 2004 Contracts 4th ed New York:

Aspen Publishers.

CROSS REFERENCES

Adhesion Contract; Consumer Protection; Contracts; Sales

Law; Shock the Conscience Test.

UNDERINCLUSIVENESS

Underinclusiveness is a characteristic of a statute

or administrative rule dealing with FIRST

AMEND-MENT rights, EQUAL PROTECTION rights, and other

fundamental liberty interests, whereby the statute

prohibits some conduct but fails to prohibit other,

similar conduct

An underinclusive law is not necessarily

unconstitutional or invalid The U.S SUPREME

COURT has recognized that all laws are

under-inclusive and selective to some extent If a law

is substantially underinclusive, however, it may

be unconstitutional

The case of Church of Lukumi Babalu

Aye, Inc v City of Hialeah (508 U.S 520, 113

S Ct 2217, 124 L Ed 2d 472 [1993])

illustr-ates unconstitutional underinclusiveness The

Church of Lukumi Babalu Aye is a religious

sect that practices Santeria, which involves the

ritual killing of animals Shortly after officials

of the city of Hialeah, Florida, learned that the

church had purchased property in that city,

the city passed certain ordinances for the stated

purpose of promoting public health and

pre-venting cruelty to animals Because the

ordi-nances prohibited the ritual killing of animals,

the church’s practice of animal sacrifice was made illegal

According to the Supreme Court, the ordinances infringed on the freedom of the church to practice its religion Furthermore, the ordinances were so underinclusive in their attempt to promote public health and prevent animal cruelty that they violated the FIRST AMENDMENT to the U.S Constitution The ordi-nances failed to punish other, nonreligious conduct that endangered the city’s interest in animal WELFARE, such as fishing or hunting for sport The ordinances also failed to cover other, nonreligious animal killing that threatened the city’s interest in public health The ordi-nances did not, for example, prevent hunters from bringing animal carcasses to their homes

Ultimately, the Court concluded, the ordinances had “every appearance of a prohibition that society is prepared to impose upon Santeria worshippers but not upon itself.”

If a law infringes on constitutionally pro-tected free speech, press, or associational rights,

it may be unconstitutionally underinclusive if

it is based on the content of the speech or somehow regulates ideas In R.A.V v City of St

Paul (505 U.S 377, 112 S Ct 2538, 120 L Ed

2d 305[1992]), the Supreme Court struck down

a hate speech ordinance that prohibited “the display of a symbol which one knows or has reason to know‘arouses anger, alarm or resent-ment in others on the basis of race, color, creed, religion or gender.’” A youth in St Paul, Min-nesota, had been prosecuted under the ordinance for burning a cross in the yard of an African American family The Court held that the law was unconstitutionally underinclusive under the First Amendment because it punished only certain speech addressing particular topics; the law addressed the content, rather than the manner, of the speech

A law is not necessarily invalid just because

it is underinclusive For example, a statute that prohibited the use of loudspeaker systems near

a hospital might be underinclusive for failing to prohibit shouting or the use of car horns in the same area This type of underinclusiveness concerns only the manner of delivering speech, however, and is therefore more likely to pass constitutional scrutiny than a statute that pro-hibits speech on particular subjects

Underinclusiveness also arises in the area of

EQUAL PROTECTION An underinclusive remedial

UNDERINCLUSIVENESS 151

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measure may be attacked on constitutional grounds when such a measure is irrational or motivated by a discriminatory purpose Thus, when a law does not include all citizens who are similarly situated with respect to a rule, and the government has a discriminatory purpose for excluding certain citizens, then the law may be unconstitutionally underinclusive on equal pro-tection grounds

FURTHER READINGS Amar, Vikram David 2009 The First Amendment, Freedom

of Speech: Its Constitutional History and the Contempo-rary Debate Amherst, N.Y.: Prometheus Books.

Smith, Bradley A., and Jason Robert Owen 2007 “Boundary-based Restrictions in Boundless Broadcast Media Markets: McConnell v FEC’s Underinclusive Over-breadth Analysis.” Stanford Law and Policy Review 18.

CROSS REFERENCES Discrimination; Hate Crime; Time, Place, and Manner Restrictions.

UNDERSTANDING

A general term referring to an agreement, either express or implied, written or oral

The nature of an understanding can be unclear;

in order to determine whether a particular understanding would constitute a legally bind-ing contract between the parties involved, the circumstances must be examined to discover whether a meeting of the minds and an intent

to be bound occurred

CROSS REFERENCE Meeting of Minds.

UNDERTAKING

A written promise offered as security for the performance of a particular act required in a legal action

In a criminal case, an undertaking of bail is security for the appearance of the DEFENDANT

In the event the defendant fails to appear, the amount posted as bail is forfeited

An undertaking with adequate security is a bond The term is used in a general sense to refer to any type of promise or stipulation

UNDERWRITE

To insure; to sell an issue of stocks and bonds or to guarantee the purchase of unsold stocks and bonds after a public issue

The word underwrite has two meanings To issue an insurance policy on the life of a person

or on property of another is to underwrite that person or property; hence insurance companies are also referred to as underwriters

The other meaning refers to the issuing of stocks or bonds by a corporation or a govern-ment agency to raise capital The underwriter is

a company, often an investment bank, that agrees to sell the SECURITIES Under its contract with the corporation, the underwriter agrees to pay for any unsold shares

An underwriter operates by purchasing all

of the new issue of stocks or bonds from the corporation at one price and selling the issue in smaller lots to public investors at a price high enough to cover the expenses associated with the sale and to provide a profit When making a

PUBLIC OFFERING of securities, an underwriter is responsible for setting the offering price It uses its knowledge of theSTOCK MARKET and current interest rates and yields to determine the likely demand for the issue

Typically, an underwriter does not under-write and distribute a security issue alone but instead organizes a syndicate for the venture Syndicates are often used when the amount of capital sought by a corporation is much larger than a single underwriter cares to risk By dividing the underwriting of the securities issue, the risk is spread among the various members

of the syndicate The firm that originates the issue acts as manager of the syndicate

If an underwriter cannot organize a syndi-cate large enough to cover the entire issue, it usually will arrange with stock brokerage firms

to purchase shares at a reduced price, called a concession This price reduction provides the brokerage firms with a margin to cover expenses and a small profit upon resale

A corporation selects an underwriter either through private negotiation of a contract or through competitive bidding In a bidding process, the corporation sets the terms of the issue and then invites potential underwriters to submit bids The issue is then sold to the highest bidder

UNDUE INFLUENCE

A judicially created defense to transactions that have been imposed upon weak and vulnerable persons that allows the transactions to be set aside

152 UNDERSTANDING

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Virtually any act of persuasion that

over-comes the free will and judgment of another,

including exhortations, importunings,

insinua-tions, flattery, trickery, and deception, may

amount to undue influence Undue influence

differs from duress, which consists of the

intentional use of force, or threat of force, to

coerce another into a grossly unfair transaction

Blackmail, EXTORTION, bad faith threats of

criminal prosecution, and oppressive ABUSE OF

PROCESSare classic examples of duress

Four elements must be shown to establish

undue influence First, it must be demonstrated

that the victim was susceptible to overreaching

Such conditions as mental, psychological, or

physical disability or dependency may be used

to show susceptibility Second, there must be

an opportunity for exercising undue influence

Typically, this opportunity arises through a

confidential relationship Courts have found

opportunity for undue influence in confidential

relationships betweenHUSBAND AND WIFE, fiancé

and fiancée, PARENT AND CHILD, trustee and

beneficiary, administrator and legatee,GUARDIAN

AND WARD, attorney and client, doctor and

patient, and pastor and parishioner Third,

there must be evidence that the defendant was

inclined to exercise undue influence over the

victim Defendants who aggressively initiate a

transaction, insulate a relationship from outside

supervision, or discourage a weaker party from

seeking independent advice may be attempting

to exercise undue influence Fourth, the record

must reveal an unnatural or suspicious

transac-tion Courts are wary, for example, of testators

who make abrupt changes in their last will and

testament after being diagnosed with a terminal

illness or being declared incompetent, especially

if the changes are made at the behest of a

beneficiary who stands to benefit from the new

or revised testamentary disposition

Nevertheless, courts will examine the facts

closely before finding that a transaction has

been tainted by undue influence Mere

suspi-cion, surmise, or conjecture of overreaching is

insufficient The law permits loved ones and

confidants to advise and comfort those in need

of their support without fear of litigation

Courts are also aware that the doctrine of

undue influence can be used as a sword by the

vindictive and avaricious who seek to invalidate

a perfectly legal transaction for personal gain

When undue influence is found to have altered

a transaction, however, courts will make every

effort to return the parties to the same position they would have occupied had the overreach-ing not occurred

UNEMPLOYMENT COMPENSATION Insurance benefits paid by the state or federal government to individuals who are involuntarily out of work in order to provide them with necessities, such as food, clothing, and shelter

Unemployment compensation for U.S

workers was established by the federal SOCIAL SECURITY ACT OF 1935 (42 U.S.C.A §§ 301 et seq.) Unemployment insurance provides work-ers who have lost their job through no fault of their own with monetary payments for a given period of time or until they find a new job

This compensation is designed to give an unemployed worker time to find a new job that

is equivalent to the one lost, without major financial distress Unemployment compensa-tion is also justified as a way to provide the U.S economy with consumer spending during

an economic downturn

The mass unemployment during the Great Depression of the 1930s led to the enactment

of the federal unemployment compensation law States had resisted establishing their own unemployment compensation plans because the first states to tax employers to fund such a plan would lose business and jobs to other states

Therefore, a federal program was needed Much

of the federal plan was implemented under the Federal Unemployment Tax Act of 1935 (26 U.S.C.A §§ 3301 et seq.) In 1938, Congress enacted the Railroad Unemployment Insurance Act (42 U.S.C.A §§ 351 et seq.), which provides unemployment compensation for railroad work-ers who lose their jobs

A combination of federal and state taxes is levied on employers to fund state-administered programs that meet minimum federal stan-dards Federal funds are also used for adminis-trative costs and to set up employment offices that attempt to match workers with new jobs

Almost all U.S wage earners are covered by unemployment compensation programs

In general, a tax on employers provides the funds to pay unemployment compensation

An employer who has more than a specified minimum number of employees is ordinarily required to file regular reports that disclose the number of employees and the amount of their

UNEMPLOYMENT COMPENSATION 153

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wages, including tips A standard or basic rate is charged against the employer based on the amount of wages paid If the employer does not lay off employees, the employer will be entitled

to a credit An employer’s record is unaffected if

an employee quits or is discharged for good cause An employer of eight or more persons is permitted to subtract what it pays to the state unemployment compensation fund from its federal unemployment tax

Each state establishes which employers are obligated to pay state unemployment taxes

Ordinarily, a state will require payment of the tax from every individual, partnership, or corporation that pays wages to a specified minimum number of people Certain types of employment are excluded from mandated coverage, including some agricultural labor, some charitable or nonprofit work, and some government work

Any individual who qualifies under the terms of the state unemployment compensation law is entitled to collect benefits To be eligible,

an individual must have worked for a certain minimum number of weeks and earned wages

in at least the amount set by state law Certain states will pay reduced benefits where part-time

work provides only a small amount of money Individuals who are self-employed are not entitled

to unemployment compensation

A state may not discriminate because of gender or religious beliefs in the awarding of unemployment compensation In Wimberly v Labor and Industrial Relations Commission, 479 U.S 511, 107 S Ct 821, 93 L Ed 2d 909 (1987), the U.S SUPREME COURT ruled that no person may be denied compensation solely on the basis of pregnancy or the termination of pregnancy In Hobbie v Unemployment Appeals Commission, 480 U.S 136, 107 S Ct 1046, 94

L Ed 2d 190 (1987), the Court held that a state may not deny unemployment benefits to a worker who is discharged for refusing to work because of religious beliefs that he or she adopted after becoming employed

Unemployment compensation is paid for a certain number of weeks, with most states granting 26 weeks of benefits However, during economic recessions the federal government has provided emergency assistance to allow states to extend the time during which individuals can receive benefits The economic recession of 2008 and 2009 led Congress to extend unemployment benefits The states are allowed to use money they have deposited in special accounts of the federal Unemployment Trust Fund For a state to use this emergency benefit system, the unemployment rate usually must reach a designated percentage within the state or the country

An unemployed worker is not required to submit proof that he or she needs money or has no other means of support Anyone who qualifies has a right to collect benefits, because payments are designed to replace part of the wages lost during temporary periods of unem-ployment Severance pay does not necessarily preclude payment of benefits, but some state laws treat it as earnings for the amount of time such payments cover and do not allow payment

of unemployment compensation until that time has expired Accumulated vacation time, vaca-tion pay, or a leave of absence also postpone or prevent the payment of benefits

Ordinarily, state unemployment compensa-tion statutes provide benefits for those who are unemployed because of their employer’s inabil-ity to provide work for them An employee who is discharged may receive benefits unless

he or she was discharged for good cause Good cause for discharge usually is related to recent

ILLUSTRATION BY GGS

CREATIVE RESOURCES.

REPRODUCED BY

PERMISSION OF GALE,

A PART OF CENGAGE

LEARNING.

Reasons for Unemployment, June 2009 a

Numbers are in thousands

a Numbers are not seasonally adjusted.

SOURCE: U.S Department of Labor, Bureau of Labor

Statistics, Employment Situation.

Not on temporary layoff

Job leavers 778

Permanent job losers 6,294

On temporary layoff 1,503 Reentrants

3,697

Completed temporary jobs 1,397

New entrants 1,425

154 UNEMPLOYMENT COMPENSATION

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misconduct on the job Misconduct in private

life or during off-duty hours may constitute

good cause for firing an employee if it affects

the person’s work Carelessness, disregard for

the employer’s interest, intoxication, the use

of illegal drugs, illegal work slowdowns, use of

abusive language, absenteeism, and habitual

lateness can be reasons for a discharge and

denial of unemployment benefits

An employee who voluntarily leaves

em-ployment ordinarily will not qualify for benefits

However, if the employee can show she was a

victim of DISCRIMINATION or harassment, then

benefits will likely be awarded Another example

is when an employee resigns and gives two

weeks’ notice, and the employer angrily tells the

person to leave immediately If the employer

does not pay the employee for the two-week

notice period, the unemployment agency may

treat the separation as a discharge and award

benefits A person who is denied benefits may

appeal this determination, first to a state

administrative office and then to a court of law

An unemployed worker is required to be

available for work This means that the person

must actively seek a new job while collecting

benefits In cases where it appears that the

person is not willing and able to work, he or she

has no right to receive unemployment

compen-sation Workers who leave a job to find a better

job or to attend school are not eligible for

benefits An individual who is too ill to work,

who has no means of transportation, or who

refuses to accept more than a small amount of

work to avoid forfeiting retirement benefits

is not regarded as being available for work

Employees who are on strike generally cannot

collect unemployment compensation However,

individuals may qualify for other types of

gov-ernment aid under such circumstances

An individual who is out of work is given no

guarantee that he or she will find an attractive

and convenient job If jobs are available, even

outside the person’s local area, he or she is

required to find one However, an individual is

not disqualified from receiving unemployment

compensation merely because he or she has

recently moved, except in cases where no

employment is available in the new locality An

unemployed worker cannot decline to accept a

new job because he or she does not like the

wages or hours A person who refuses to accept

a job is no longer entitled to receive

unemployment compensation if the job is reasonable and suited to his or her skills

In 2000 the U.S.DEPARTMENT OF LABORissued rules that allowed states to provide unemploy-ment compensation benefits to parents after the birth or adoption of a child An extension of the Family and Medical Leave Act of 1993, the new Birth and Adoption Unemployment Compen-sation (BAA-UC) was to be funded by individ-ual state unemployment compensation funds

No states enacted the required legislation, and the Bush administration appealed the rules in 2003

FURTHER READINGS Covington, Robert and Decker, Kurt 2002 Employment Law in a Nutshell 2d ed Saint Paul, Minn.: West Group 2002.

Leslie, Douglas 2008 Labor Law in a Nutshell 5th ed Saint Paul, Minn.: Thomson West.

Walters, William 2000 Unemployment and Government:

Genealogies of the Social New York; Cambridge Univ.

Press.

CROSS REFERENCES Employment Law; Insurance; Labor Law; New Deal; Old-Age, Survivors, and Disability Insurance; Workers ’ Com-pensation.

UNENUMERATED RIGHTS Unenumerated rights are rights that are not expressly mentioned in the written text of a

Duration of Unemployment, June 2009 a

Numbers are in thousands

a Numbers are not seasonally adjusted.

SOURCE: U.S Department of Labor, Bureau of Labor

Statistics, Employment Situation.

27 weeks and over 4,218 Less than

5 weeks 3,899

15 to 26 weeks

3,648

ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,

A PART OF CENGAGE LEARNING.

UNENUMERATED RIGHTS 155

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constitution but instead are inferred from the language, history, and structure of the constitu-tion, or cases interpreting it

Typically, the term unenumerated rights describes certain fundamental rights that have been recognized by the U.S SUPREME COURT

under the U.S Constitution In addition,STATE COURTS have recognized unenumerated rights emanating from the principles enunciated by their own state constitutions No comprehen-sive list of unenumerated rights has ever been compiled nor could such a list be readily produced precisely because these rights are unenumerated

The NINTH AMENDMENTto the U.S Constitu-tion states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained

by the people.” However, the amendment has never been interpreted by the Supreme Court as

a source of rights Instead, it has been viewed as

a way to protect against the denial of funda-mental rights because they were not specifically mentioned in the Constitution

Nevertheless, a partial list of unenumerated rights might include those specifically recog-nized by the Supreme Court, such as the right

to travel, the right to privacy, the right to autonomy, the right to dignity, and the right

to an ABORTION, which is based on the right to privacy Other rights could easily be added to this list, and no doubt will be in the future

In Washington v Glucksberg (117 S Ct 2258 [1997]), the Supreme Court ruled that there is

no unenumerated constitutional right to die

However, in Troxel v Glanville (530 U.S 57 [2000]), the Court reaffirmed that there is an unenumerated right for parents to make deci-sions concerning the care,CUSTODY, and control

of their children

Unenumerated rights commonly are de-rived through a reasoned elaboration of express constitutional provisions TheFIRST AMENDMENT, for example, guaranteesFREEDOM OF SPEECH but says nothing about the nature of the speech protected Through the process of interpreta-tion, the Supreme Court has held that the free speech clause protects both verbal and nonver-bal expression, as well as communicative con-duct The right to engage in offensive symbolic expression, such as flag burning, forms an essential part of the freedoms contemplated by the First Amendment, freedoms that are integral

to maintaining an open and democratic society (Texas v Johnson, 491 U.S 397, 109 S Ct 2533,

105 L Ed 2d 342 [1989]) Judicial protection

of such unenumerated rights, the Court has reasoned, helps establish a penumbra or buffer that insulates expressly enumerated liberties from governmental encroachment

Courts are ordinarily reluctant to recognize new unenumerated rights Most judges are sensitive to accusations of inventing new liber-ties out of whole cloth Critics charge that judges who recognize new unenumerated rights are imposing their personal values on the law, rather than faithfully interpreting the text of the Constitution The role of judges, these critics contend, is solely to apply the law, whereas only legislators are empowered to make new law through the exercise of value-laden judgments The Supreme Court has attempted to deflect such criticism by relying on history as justifica-tion for its decisions recognizing certain une-numerated rights For example, the Fifth and

FOURTEENTH AMENDMENTS to the U.S Constitu-tion prohibit the government from depriving any person of life, liberty, or property without

“due process of law.” Yet the amendments do not define “due process,” nor do they address issues such as how much process is due during a given legal proceeding Although the Supreme Court has interpreted this provision to require procedural fairness in civil and criminal liti-gation, each procedural right the Court has recognized is technically unenumerated because theDUE PROCESS CLAUSEoffers no hints as to what legal procedures it contemplates

In criminal cases the Supreme Court has held that the due process clause guarantees every DEFENDANT the right to be presumed innocent by the trier of fact, either a judge or

a jury, until proved guilty beyond a reasonable doubt by the government (In re Winship, 397 U.S 358, 90 S Ct 1068, 25 L Ed 2d 368 [1970]) In reaching this decision, the Supreme Court stated that the REASONABLE DOUBT and

PRESUMPTION OF INNOCENCE standards have been associated with the concept of due process since early colonial times By citing history and tradition as the basis for many of its controversial decisions, the Supreme Court provides an answer to its critics who claim that unenumerated rights have no basis other than personal predilections of the judges who recog-nize them

156 UNENUMERATED RIGHTS

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