A formal response by the defendant to the affirmative assertions of the plaintiff in a civil case or to the charges of the prosecutor in a criminal case. There were two kinds of pleas, dilatory and peremptory. A dilatory plea did not argue against the merits of the plaintiff's claim but challenged that individual's right to have the court hear the case. It was called dilatory not bec…
The process whereby a criminal defendant and prosecutor reach a mutually satisfactory disposition of a criminal case, subject to court approval. Plea bargaining can conclude a criminal case without a trial. When it is successful, plea bargaining results in a plea agreement between the prosecutor and defendant. In this agreement, the defendant agrees to plead guilty without a trial, and, in return,…
Asking a court to grant relief. The formal presentation of claims and defenses by parties to a lawsuit. The specific papers by which the allegations of parties to a lawsuit are presented in proper form; specifically the complaint of a plaintiff and the answer of a defendant plus any additional responses to those papers that are authorized by law. In 1938, federal courts began using a modern system…
Pledges are different from sales. In a sale both possession and ownership of property are permanently transferred to the buyer. In a pledge only possession passes to a second party. The first party retains ownership of the property in question, while the second party takes possession of the property until the terms of the contract are satisfied. The second party must also have a lien—or leg…
An 1896 decision by the Supreme Court, Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, upheld the constitutionality of an 1890 Louisiana statute requiring white and "colored" persons to be furnished "separate but equal" accommodations on railway passenger cars. In Plessy v. Ferguson (1896), the Supreme Court maintained that the Fourteenth Amendment …
The opinion of an appellate court in which more justices join than in any concurring opinion. The excess of votes cast for one candidate over those votes cast for any other candidate. Appellate panels are made up of three or more justices. In some cases the justices disagree over the outcome of the case to such an extent that a majority opinion cannot be achieved. (A majority opinion is one in whi…
The illegal shooting, trapping, or taking of game or fish from private or public property. The poaching of game and fish was made a crime in England in the seventeenth century, as aristocratic landowners sought to preserve their shooting and property rights. Poor peasants did most of the poaching to supplement their diets with meat and fish. In the United States, poaching was not considered a seri…
Economic poisons are those substances that are used to control insects, weeds, fungi, bacteria, rodents, predatory animals, or other pests. Economic poisons are useful to society but are still dangerous. In the past, an individual who was harmed by a poison that had been handled in a careless manner could institute a lawsuit for damages against the person who had mishandled the chemical. As time w…
A defensive strategy based on issuing special stock that is used to deter aggressors in corporate takeover attempts. The poison pill is a defensive strategy used against corporate takeovers. Popularly known as corporate raiding, takeovers are hostile mergers intended to acquire a corporation. A takeover begins when a so-called aggressor tries to buy sufficient stock in another corporation, known a…
A body sanctioned by local, state, or national government to enforce laws and apprehend those who break them. The police force as we know it came into being in England in the 1820s when Sir Robert Peel established London's first municipal force. Before that, policing had either been done by volunteers or by soldiers. Police officers in the twenty-first century have technological advantages …
The violation of state and federal laws or the violation of individuals' constitutional rights by police officers; also when police commit crimes for personal gain. Through both criminal and civil statutes, federal law specifically targets police misconduct. Federal law is applicable to all state, county, and local officers, including those who work in correctional facilities. The key feder…
The use of private security guards and police by such entities as businesses and school campuses to protect their property, employees, and students has grown rapidly since the early 1980s. The authority of these guards, sometimes known disparagingly as "rent-a-cops," depends upon the employer and the type of security involved. Some guards are considered private employees of security …
Police power describes the basic right of governments to make laws and regulations for the benefit of their communities. Under the system of government in the United States, only states have the right to make laws based on their police power. The lawmaking power of the federal government is limited to the specific grants of power found in the Constitution. The right of states to make laws governin…
A group not endorsed by a candidate or political party but organized to engage in political election activities, especially the raising and spending of money for "campaigning." Some political action committees (PACs) are organized solely to help defeat a candidate deemed undesirable by the group. Many types of special-interest groups have established PACs, including the following exa…
Statutes and court rulings that govern candidates running for public office. More difficult situations arise when one candidate alleges that another candidate has intentionally misrepresented the position of the other. Open political debate is expected in a campaign but candidates can be prosecuted if the claims are judged to be objectively false. Candidates who retract or withdraw challenged camp…
An issue that the federal courts refuse to decide because it properly belongs to the decision-making authority of elected officials. Political questions include such areas as the conduct of foreign policy, the ratification of constitutional amendments, and the organization of each state's government as defined in its own constitution. The rule preventing federal courts from deciding such ca…
Although it is sometimes difficult to distinguish political trials from ordinary legal proceedings, political trials generally fall into one of four categories. The most familiar type of political trial is a partisan trial, which consists of criminal legal proceedings instituted by the government to solidify its power, extinguish its opposition, or flex its muscle. Such political trials, while tak…
James Knox Polk, eleventh president of the United States, served just one term in office, but in that time he was extremely influential in shaping the country's evolution into a large and politically formidable nation. Polk's primary achievements came in the area of foreign affairs, where he completed the annexation of Texas; James K. Polk. LIBRARY OF CONGRESS directed the Me…
After graduation, Pollack joined the law firm of Gilman and Unger. By 1937, Gilman and Unger had become Unger and Pollack, and by 1943, Pollack had proved himself to be a force in both the legal and financial communities by winning a $4.5 million shareholder lawsuit against General Motors Corporation (Singer v. General Motors Corp., 136 F. 2d 905 [2d Cir. 1943]). In 1944, Pollack set out on his ow…
Amendment, states could not restrain the free speech rights of persons such as Gitlow. Though the Court did not agree with Pollak that the New York law was unconstitutional, it did adopt his incorporation argument, holding that freedom of speech and the press "are among the most fundamental personal rights and 'liberties' protected by the due process clause of the Fourtee…
As a legal scholar and historian, Sir Frederick Pollock was a leading figure in the modernization of English legal studies in the nineteenth century. Born in London on December 10, 1845, Pollock was educated at Trinity College, Cambridge, admitted to the bar in 1871, and soon Among Pollock's many admirers was his friend, Justice Holmes. The British law professor and the U.S. Supreme Co…
Charles Pollock—a Massachusetts stockholder employed by the New York defendant, Farmers' Loan & Trust Co.—appealed to the U.S. Supreme Court after unsuccessfully suing the defendant in federal courts to prevent it from breaching its fiduciary duty by filing returns for and paying a federal income tax. The tax was levied upon the profits that the defendant earned, includ…
The contamination of the air, water, or earth by harmful or potentially harmful substances. The U.S. environmental movement in the 1960s emerged from concerns that air, water, and soil were being polluted by harmful chemicals and other toxic substances. During the industrial revolution of the nineteenth century, the mass production of goods created harmful wastes, much of which was dumped into riv…
An instrument used to measure physiological responses in humans when they are questioned in order to determine if their answers are truthful. Also known as a "lie detector," the polygraph has a controversial history in U.S. law. First developed in the late nineteenth century, its modern incarnation is an electromechanical device that is attached to a subject's body during an i…
A fraudulent investment plan in which the investments of later investors are used to pay earlier investors, giving the appearance that the investments of the initial participants dramatically increase in value in a short amount of time. A Ponzi scheme is a variation of illegal pyramid sales schemes. In a pyramid sales plan, a person pays a fee to become a distributor. Once the person becomes a dis…
The representation in books, magazines, photographs, films, and other media of scenes of sexual behavior that are erotic or lewd and are designed to arouse sexual interest. The Supreme Court added requirements to the definition of obscenity in a 1966 case involving the English novel Memoirs of a Woman of Pleasure, more commonly known as Fanny Hill. In A Book Named "John Cleland's Mem…
Positivism has been criticized for its harshness. Some critics of positivism have argued that not every law enacted by a legislature should be accepted as legitimate and binding. For example, laws depriving African Americans and Native Americans of various rights have been passed by governments but later overturned as unjust or unconstitutional. Critics conclude that written law ceases to be legit…
Richard A. Posner. REUTERS NEWMEDIA INC./CORBIS double the national average of judicial opinions annually, Posner has continued to publish many articles and books that range across legal, social, and intellectual topics. During the 1970s, Posner became a leader of the Chicago School of antitrust theory. This was a group of scholars, (mostly associated with the University of Chicago) w…
In the United States, the posse comitatus was an important institution on the western frontier, where it became known as the posse. At various times vigilante committees, often acting without legal standing, organized posses to capture wrongdoers. Such posses sharply warned first-time cattle rustlers, for instance, and usually hanged or shot second-time offenders. In 1876 a four-hundred-man posse …
The U.S. Supreme Court has said that "there is no word more ambiguous in its meaning than possession" (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 [1914]). Depending on how and when it is used, the term possession has a variety of possible meanings. As a result, possession, or lack of possession, is often the subject of controversy in civil cases inv…
An infant who is born subsequent to the death of the father or, in certain cases, the mother. …
Postmarital agreements, also called postnuptial agreements, are agreements made between spouses while they are married. Postmarital agreements concern the rights and responsibilities of each spouse in the event that the other spouse dies or the couple divorces. All states allow postmarital agreements, but courts must review these agreements for procedural and substantive fairness before they can b…
Roscoe Pound was one of the leading figures in twentieth-century legal thought. As a scholar, teacher, reformer, and dean of Harvard Law School, Pound strove to link law and society through his "sociological jurisprudence" and to improve the administration of the judicial system. In the early decades of the century, Pound was viewed as a radical thinker for arguing that the law is no…
Adam Clayton Powell Jr. was a prominent African American congressman, serving his district in New York City's Harlem neighborhood from 1945 to 1970. A flamboyant and often controversial political figure, Powell played a key role in passing many federal education and social welfare programs in the 1960s. Near the end of his tenure, however, Powell was embroiled with the House of Representati…
Lewis Franklin Powell Jr. served as an associate justice of the U.S. Supreme Court from 1972 to 1987. Powell, who came to the Court as one of the most distinguished lawyers in the United States, was a moderate conservative who became a key "swing" vote on a Court that became divided between conservatives and liberals. Powell was born on November 19, 1907, in Suffolk, Virginia. A desc…
A written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal. A sample document granting power of attorney Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions for the principal…
Repeated or customary action; habitual performance; a succession of acts of similar kind; custom; usage. The exercise of any profession. …
The professional tasks performed by lawyers in their offices or in court on a day-to-day basis. With the growth of specialization, it has become difficult to generalize about the practice of law. Nevertheless, common elements can be identified in the disparate typical workday of, for example, a criminal defense attorney and a probate attorney. The practice of law depends on lawyers having clients.…
Words in a will or a trust used by the testator (the person making the will) or settlor (the person making a trust) to express a wish or desire to have his or her property disposed of in a certain way or to have some other task undertaken, which do not necessarily impose a mandatory obligation upon anyone to carry out the wish. Precatory language in a will or trust usually includes such terms as t…
Reliance upon precedent also promotes the expectation that the law is just. The idea that like cases should be treated alike is anchored in the assumption that one person is the legal equal of any other. Thus, persons in similar situations should not be treated differently except for legally relevant and clearly justifiable reasons. Precedent promotes judicial restraint and limits a judge's…
A doctrine of state law that holds that a state law displaces a local law or regulation that is in the same field and is in conflict or inconsistent with the state law. Article VI, Section 2, of the U.S. Constitution provides that the "… Constitution, and the Laws of the United States … shall be the supreme Law of the Land." This Supremacy Clause has come to mean that t…
The act of an insolvent debtor who pays one or more creditors the full amount of their claims or a larger amount than they would be entitled to receive on a pro rata distribution. For example, a debtor owes three creditors $5,000 each. All three are equally entitled to payment, but the debtor has only $12,000 in assets. Instead of paying each creditor $4,000, the debtor pays two creditors in full …
Stock shares that have preferential rights to dividends or to amounts distributable on liquidation, or to both, ahead of common shareholders. Preferred stock is given preference over common stock. Holders of preferred stock receive dividends at a fixed annual rate. The earnings of a corporation are applied to this payment before common stockholders receive dividends. If corporate earnings are insu…
A forejudgment; bias; partiality; preconceived opinion. A leaning toward one side of a cause for some reason other than a conviction of its justice. A juror can be disqualified from a case for being prejudiced, if his or her views on a subject or attitude toward a party will unduly influence the final decision. A decision resulting in prejudicial error substantially affects an appellant's l…
A particular major is not important to a law school admissions committee, but good grades are critical for acceptance. In addition, admissions committees seek a diverse first-year class and may look at volunteer and extracurricular activities as well as a college transcript and the results of the Law School Admission Test (LSAT). Law schools have no prerequisite courses for admission. However, col…
The U.S. Supreme Court, in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), mandated that persons arrested without a warrant and held by the police must be given a preliminary hearing to determine if there is probable cause. Probable cause means that a reasonable ground exists for belief in the facts, and the hearing examines whether a prudent person would believe that the su…
A contract made in anticipation of marriage that specifies the rights and obligations of the parties. Such an agreement typically includes terms for property distribution in the event the marriage terminates. A premarital agreement, also known as a prenuptial or antenuptial agreement, is a contract between two persons who intend to marry. All states recognize premarital agreements through statutes…
A standard of proof that must be met by a plaintiff if he or she is to win a civil action. The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it t…